"Inherent dangers and risks of skiing" are defined at C.R.S. §33-44-103(3.5). The Act provides, at §33-44-112 that: "No skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing." Section 103(3.5) explicitly provides that these inherent dangers and risks of skiing do not include the negligent operation of lifts and tows. Moreover, the inherent dangers and risks of skiing do not include those dangers not necessary to the sport.Graven v. Vail Associates, Inc. 909 P. 2d 514 (Colo. 1995). Accord, Bouchard v. Johnson d/b/a Frost Fire Mtn., 555 N.W. 2d 81 (N.D. 1996); Brett v. Great American Recreation, 144 N.J. 479, 677 A. 2d 705 (Sup. Ct. N.J. 1996); Clover v. Snowbird Ski Resort, 808 P. 2d 1037 (1991); Frant v. Haystack Group, Inc., 641 A. 2d 765 (Vt. 1994); Mead v. M.S.B., 872 P.2d 782 (Mont. 1994); Sytner v. State, 223 A.D. 140, 645 N.Y.S.2d 654 (N.Y.A.D. 1996); White v. Deseelhorst, 879 P. 2d 1371 (Utah 1994). See also, Hoar v. Great Eastern, 1998 WL 774588 (11/6/98 Va.)

The Colorado General Assembly, in 1990, acknowledged that there existed a distinct body of Colorado law regarding ski lift liability. That body of law shifted onto the ski area operator a higher duty of care with regard to the design, installation, maintenance and operation of ski lifts. A Ski lift operator must exercise highest degree of care commensurate with lift's practical operation, design, construction, maintenance, and inspection. Summit County Development v. Bagnoli, 166 Colo. 27, 40, 441 P.2d 658, 664 (1968); Trigg v. City and County of Denver, 784 F. 2d 1058 (10th Cir. 1986). Recognizing this, the General Assembly noted, in the 1990 Act that "nothing in this [inherent danger definition section] shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts." 33-44-103.5. In Bayer v. Crested Butte, 960 P.2d 70 (Colo. 1998) the Court wrote:

However, the amendments expressly prevent ski lift operators from claiming that the limitation on a ski area's liability applies to causes of action arising from ski lift accidents. See § 33-44-103(3.5), § 33-44-112, 9 C.R.S. (1997). [footnote] As further confirmation of the intent to exclude ski lift accidents from the liability limitations, the bill's chief sponsor, Representative Scott McInnis, testified that the 1990 amendments to the Ski Safety Act would not affect common law tort liability as it related to ski lifts: "This bill does not exclude a ski area from negligence and the liability it faces with ski lifts." House floor debate on S.B. 80, Mar. 21, 1990. Bayer v. Crested Butte, 960 P.2d at 77.

The Passenger Tramway Safety Act, C.R.S. §25-5-701, et seq., is similar to the Ski Act in that its stated purpose is to "assist in safeguarding life, health, property, and the welfare of the state . . . to assure that . . . accepted safety devices and sufficient personnel are provided for . . . which are deemed essential to the safe operation of ski tows, ski lifts, and passenger tramways. C.R.S. §25-5-701.

The Tramway Act regulates ski lifts through its Board. The majority of the Board come from the ski industry, tramway industry, and presently, a principal in one of the major ski area insurers. So, by its nature, it is biased in favor of the industry. By statute, the Board must use as a general guideline, the American Standard Safety Code for Aerial Tramways American National Standards Institute Code for Aerial Passenger Tramways. ANSI B77.1-1992. C.R.S. 25-5-710(1)(a). The Ski Act specifically incorporates the P.T.S.B. regulations as a standard for negligence, per se. C.R.S. §33-44-104(2). The ANSI B-77.1-1992, code is, in turn, incorporated into the P.T.S.B. regulations, by reference.

The ANSI code contains several provisions which impose safety responsibilities upon ski area operators. These regulatory duties become, under the per se provisions of the Ski Act, legal duties determinative of liability in ski lift accident cases. However, even these duties would be abrogated by the enforcement of written waivers. For example, Section 4.3.2.3.3. of the ANSI code impose general safety duties upon the ski lift attendants, operators and supervisors to "maintain orderly passenger traffic . . . to advise and assist passengers, as required . . . to maintain surveillance of his/her area of jurisdiction . . . stop the aerial lift immediately . . . if a condition develops in which the continued operation of the lift might endanger a passenger." With a waiver of all claims of negligence, a skier could, arguably, have waived his claims against the ski area operator for the safe operation of the lifts, and the lift operators duty, under Bayer, to act with the highest duty of care. ARE WAIVERS PERMISSABLE?

• Waivers cannot limit or expunge the statutory duties of ski area operators

  Arguably, exculpatory and indemnification language has its intention to abrogate all legal responsibility as the ski area operator including those duties specifically set forth in the Ski Act and under the Colorado Passenger Safety Act, C.R.S. §25-5-701 et seq. The ski area operator seeks to modify, at best, nullify at worst, its statutory duties by contract. The effect is to shift all financial responsibility for the negligent operation of the lifts and tows, or clear cut acts of negligence in the operation of the area, onto either the skiers themselves, or the parents of an injured child. A strong public policy argument can be made that in view of the unambiguous language of the statutory scheme, which imposed duties on both the skier and ski area operator, that it is against public policy to allow the ski area operator to shed its responsibility by contract. The Ski Act calls for a sharing of safety responsibilty, not a unilateral imposition of the burden of all injury upon the skier. The Tramway Act imposes upon the ski area operator the primary duty for the safety of the design, installation, maintenance and operation of its trams, lifts and tows, not the sloughing of responsibility.

  In the case of Phillips v. Monarch Recreation Corporation, 668 P.2d 982 (Colo. App. 1983), the Colorado Court of Appeals held that the Ski Safety Act of 1979 allocated the parties' respective duties with regard to the safety of those around them and upheld the trial court's decision to exclude from evidence the plaintiff's lift ticket, which set out a purported agreement intended to alter those duties. Citing In Re: Marriage of Johnson, 42 Colo. App. 198, 591 P.2d 1043 (1979), the Court stated that statutory provisions may not be modified by private agreement if doing so would violate the public policy expressed in the statute. The Court of Appeals held that Monarch's placement of language on the back of Plaintiff's lift ticket purporting that he agreed that he understood and assumed all risk of injury while skiing, even such injury caused by improper operation of a snow cat, violated the public policy of the State of Colorado in light of the enactment of the Ski Safety Act of 1979.

  In one case, settled confidentially, a Colorado District Court has ruled that an indemnification agreement, set out in a minor's season pass, was void. In that case, a seven year biy was skiing on a season pass purchased by his father. There was a collision between the boy and a snowmobile being operated by a ski area employee. The boy's season pass contained exculpatory and indemnification language. The Ski Area Operator filed a third party complaint for indemnification and contribution, against the boy's father. The court dismissed the third party complaint, citing Phillips.

  Thus, a principal argument against the indemnification/release and waiver scheme emerges, as such contracts run counter to the Phillips prohibition against modifying the duties of the statutory framework.
  
  

• Waiving those risks which are "non-inherent" versus expunging a statutory mandate

  The Colorado Supreme Court touched on this issue with regard to equine liability in B & B Livery v. Riehl, 960 P. 2d 134 (Colo. 1998). In B & B, the Court upheld a release which created a liability shield beyond the statutorily provided inherent dangers, provided that it was short, clear, and the rider understood it.

  The statutory provisions under consideration in B & B, are however, distinguishable from the Ski Act. In 1989 the General Assembly of Colorado enacted, as part of other "tort reform" legislation, a single section of the Revised Statutes, relating to the exemption from civil liability of llama and equine activities. C.R.S. § 13-21- 119 (West's 1997), "Equine activities--llama activities--legislative declaration--exemption from civil liability." Subsection 13-21-119(2)(f) defines the inherent dangers of riding and other equine activities. Subsection 13-21-119(3) then provides:

  . . . no participant nor participant's representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, a llama activity sponsor, a llama professional, a doctor of veterinary medicine, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities or resulting from any of the inherent risks of llama activities.
  C.R.S. §13-21-119(3).

  The section, demonstrating some "horse sense" defines certain risks which are not inherent dangers of riding, such as the provision of faulty tack, failing to determine the riders ability, or knowing but failing to advise of a dangerous latent danger. C.R.S. §13-21-119(4)(b)(I). Distinguished from the Ski Act, the Equine Exemption from Civil Liability provision imposes no statutory duties upon the dude ranch to perform any acts relating to the safety of participants. To the contrary, the Equine act only lists those risks, or failures of the equine owner, which are not inherent risks of riding.

  B&B stands for the proposition that a waiver can release "non-inherent" risks. However, it does not address whether statutory duties can be subjected to arguments of release. Given that the firm which prevailed in B&B, White & Steele, P.C., has the largest book of business among the ski industry in Colorado, one can be sure that the B&B argument will be raised in any contested court case regarding waivers.

  A waiver should not expunge a statutory duty, imposed under a comprehensive set of safety regulations, duly enacted by the legislature. The public policy of the state, as expressed in the Ski Act and the Tramway Act, requires ski area operators to perform certain duties related to the safety of skiers and passengers. Waivers are invalid as violations of public policy, when the waiver purports to relieve ski area operators of its duties under either the Ski Act, the Tramway Act, or the Colorado Snowmobile Act, C.R.S. 33-14-101, et seq.
  
  

• The Jones v. Dressel Public Duty Analysis

  The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the Court to decide. Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). Exculpatory agreements are disfavored and, therefore, they are strictly construed against the party seeking to limit its liability. Heil Valley Ranch, Inc., v. Simkin, 784 P.2d 781, 783-84 (Colo. 1989). Exculpatory agreements stand directly between two important but competing principles, freedom of contract and responsibility for damages caused by one's own negligent acts. Del Bosco, supra at 1472. In determining the validity of any exculpatory agreement, a Court must analyze four factors: 1) The existence of a duty to the public; 2) The nature of the service performed; 3) Whether the contract was fairly entered into; and, 4) Whether the intention of the parties is express in clear and unambiguous language. Jones, Supra at 376.

  The four factors identified in Jones, were consolidated and explained in Stanley v. Creighton Co., 911 P.2d 705, (Colo. App. 1996). In order to balance these principles fairly, the determination of the validity of a particular clause requires (1) consideration of the public policy implications of the subject matter involved (whether it concerns a duty to the public and whether the types of the services performed affect the public interest) and (2) the circumstances of the specific contract (whether the contract was fairly entered into and whether the parties' intentions were expressed in clear and unambiguous language). Stanley at 706, 707. It is not necessary to consider each of the factors in order to invalidate the exculpatory and indemnification language. Where the provision is already invalid, under the public policy analysis. Stanley at 708.

  With the enactment of the Ski Safety Act of 1979, and of the Colorado Passenger Safety Act, it cannot be disputed that ski area operators owe a duty to the public. Codification of the respective duties of the skiers/snowboarders and the ski area operator, as expressed in the Ski Safety Act, and of the regulation of lifts and tows by the Tramway Board confirm that a ski area safety is an issue of public concern and an indication of its public importance. Stanley, supra at 707. In Stanley, a landlord attempted through an exculpatory clause in the lease to prohibit all claims excepting those resulting from its gross negligence. Concluding that the waiver of claims of a lessor's negligence through an exculpatory clause in a form residential lease was a matter of public interest, the Court held the exculpatory clause to be invalid.
  
  

• Rowan v. Vail Holdings

  One of Colorado's brightest legal minds is The Honorable Wiley Daniel, Judge of the United States District Court for the District of Colorado. In Rowan v. Vail Holdings, Inc., d/b/a Vail Associates, Inc., et al., 96-D-2761, the Court invalidated a waiver and release executed by Perry Rowan, just hours before his death. Rowan was killed when he ran into a picnic deck located near the base of a race course while glide testing skis for Salomon.

  Here is how Judge Daniel relates the facts of the case:

  Rowan was a national caliber racer with international racing experience, but had not raced for a number of years. Glide testing determines which ski waxes and structures of the ski bottom run the fastest on the snow located at the venue where the testing is being determined. The purpose of the glide testing at issue herein was to test World Cup downhill skis for the World Cup Downhill that would take place shortly thereafter in Vail. The results of the testing show that Rowan attained speeds in excess of 120 kilometers per hour on the first two days of testing.

  The course being used by Rowan for the glide testing was located in an area that was roped off and closed to the general public. The glide testing took place over a three day period. Rowan was killed on the third day. That morning, Rowan and another tester, Jennifer Brown ("Brown"), had been asked to sign, and signed, liability releases. The release signed by Rowan, attached as Exhibit D to Vail's Memorandum Brief in Support of Summary Judgment, is summarized below.

  Beneath the space to print the name, date and place of the event, are bold and capital letters stating, "PLEASE READ CAREFULLY. THIS IS A RELEASE OF LIABILITY AND WAIVER OF LEGAL RIGHTS." Following this language, the release stated in pertinent part:

  1. I acknowledge that participation in ski racing (the "Event"), described above, or training in connection with such Event, is HAZARDOUS and involves a great risk of physical injury. I expressly assume all risk associated with participating in or training for the Event, including, without limitations, using ski lifts. I understand that I have the opportunity to inspect the race course and area prior to training for or participating in the Event and I assume the risk of all course conditions.

  2. WARNING - Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own natural abilities.

  3. In consideration of receiving permission to take place in the Event, I agree to release and hold harmless Vail Associates, Inc., its subsidiaries and affiliates ... from any and [sic] claims I might state as a result of physical injury, including death, ... including those claims based on negligence or breach of warranty.

  ...

  5. This agreement is binding on my estate, heirs, administrators and assigns and shall be governed by the laws of Colorado ....

  At the bottom, before the date and signature, the release states in capital and bold letters, "I HAVE CAREFULLY READ THE FOREGOING LIABILITY RELEASE, UNDERSTAND ITS CONTENTS AND SIGN IT WITH FULL KNOWLEDGE OF ITS SIGNIFICANCE. I AM AT LEAST 18 YEARS OF AGE."

  After signing the release, Rowan completed approximately 10 runs. On his next run, Rowan lost control near the finish line of the race course, fell and slid into one of the unpadded wood support beams of the picnic deck, sustaining fatal injuries. Allegedly, on the day before the accident, a conversation occurred between Rowan, Brown, and Nick Scales ("Scales"), an employee with Vail. Vail claims that Scales asked Brown and Rowan if they thought the course was safe. They stated in response that they did not feel it was necessary to add any padding to the course. Plaintiffs admit that Scales has testified to such a conversation, but assert that Brown did tell Scales at one point that she thought the course was dangerous, and that the existence of the deck played a role in that assessment because it was an obstacle. Plaintiffs contend that because of Scales' concerns and a few close calls that the testers had with the deck, Scales had Rowan and Brown sign the releases on the day of the fatality.

  In summary of the Plaintiffs' claims, they contend that Vail was negligent in the placement of the deck and in not padding it; that the deck had been padded at one point but the padding was negligently removed; that other obstacles in the ski area were padded and that the deck could easily have been padded; that padding was installed after Rowan's death; that there had been other close calls the first two days because the construction of the course required the skiers to make a hard left turn at the end of the course to avoid the deck; that another tester, Tal Klein, seriously injured her knee when she found herself headed toward the deck at high speed; and that there was another course adjacent to the one being used that could have been set up for the testers, but Vail had made the decision not to groom that course.

  Judge Daniel, using the Dressel criteria, found that the release was entered into unfairly, and that it was ambiguous. Judge Daniel invalidated the release on the fairness element, by finding that Rowan was assigned to the glide testing as part of his work, not recreation, which meant that the element of choice was not present. Rowan could not just walk away. This, to the Court, demonstrated a "high disparity in the bargaining power between Vail and Rowan." (Slip op., at 14). Secondly, the court found that the disparity in the bargaining power was exacerbated because Rowan was presented the release without any chance for negotiation, on the final day of the glide testing; third, Judge Daniel found that the release was offered to Rowan only after Vail had learned of the previous two close calls with the picnic deck.

  On the ambiguity issues, the court found that the release's language that Rowan released any claims "I might state" as to be ambiguous concerning whether the release waives the independent wrongful death action which an heir might bring.

  But, perhaps most importantly, Judge Daniel held that the release was ambiguous "because there is a conflict between the release's language and the Ski Safety Act as to what risks are assumed." Here, the release on one hand included all risks "including ski lifts" and elsewhere the release tracked the Ski Act's inherent risk language. The Court found that the release was ambiguous as to whether it released all claims, or rather those "claims that result in injuries inherent to skiing under the Ski Safety Act." (Slip Op., at 17) Although Judge Daniel did not address the issue of whether the release can waive the statutory obligations of the ski area operator, the court did distinguish the Colorado Supreme Court's decision in B & B.

  Accordingly, the Court held the release to be invalid, and allowed the case to proceed both on the negligence and the wilful wanton claims, noting hornbook law that wilful or wanton conduct can never be waived under a release of liability.
  
  

• A parent cannot waive a child's rights

  Recognizing a minor's ability to void a contract, Del Bosco v. United States Ski Association, 839 F. Supp. 1470, 1473, (D. Colo. 1993), ski areas are dressing up waivers for children as indemnification agreements for the parents. An exculpatory clause executed by parents on behalf of a child in a racing program was held void as against public policy and did not bar the child's cause of action. Scott v. Pacific West Mountain Resort, 834 P.2d 6 (Wash. 1992). By requiring the parent to sign a contract which includes language calling for the parent to defend, indemnify and hold harmless the ski area from any and all claims for personal injury, including those caused by the negligence of the Resort itself and its employees. This attempt to avoid financial responsibility is exactly what the Court of Appeals determined in Phillips to be a violation of the public policy of the State of Colorado as expressed in the Ski Safety Act. Here we have a statute that specifically exempts ski lifts from the scheme of inherent danger, and by direct implication preserves the common law duties of the lift operator, yet the ski area operator, by contract, is attempting to place the operation of its lifts into the realm of inherent dangers. It is simply prohibited by law.