Bayer v. Crested Butte - To Bar or Not to Bar

Should ski areas in Colorado install safety bars on chairlifts for winter use? The Colorado Supreme Court held that the question should be put before a federal jury in Denver, in the case of Bayer v. Crested Butte, 960 P.2d 70 (Colo. 1998). This landmark case analyzed the common law, and statutory framework in Colorado for ski lift liability. It marks the second time in three years, in which the Colorado Supreme Court has undertaken a review of an aspect of Colorado's ski law. See, Graven v. Vail Associates, Inc., 909 P. 2d 514 (Colo. 1995). Because Colorado is typically viewed as an authoritative jurisdiction for matters concerning ski liability, the precedent will certainly have an effect on the ski industy, nationwide.

Florida citizen files federal suit

On New Years eve, 1992, 19-year-old Eric Bayer, boarded the Paradise Lift, at Crested Butte. The lift was a center pole, double chair lift. It was not equipped with a safety bar. Bayer rode the Paradise Lift for about 100 yards. For reasons we will probably never know, Bayer lost consciousness, slumped in his chair, and slid feet first to the ground, some 30 below. He suffered serious and permanent head injuries from the fall, and remains in a coma.

Bayer, a Florida citizen, filed suit in federal court against Crested Butte. At the core of the dispute was the question whether a jury could determine that it was negligent for Crested Butte to fail to equip the Paradise lift with a safety bar. Bayer argued that it would be for the jury to decide whether the absence of the safety bar was, in and of itself, negligence. Colorado's Passenger Tramway Safety Board regulations only require safety bars on lifts open for summer usage.

Bayer argued, however, that the regulations notwithstanding, the absence of a safety bar was a breach of the highest duty of care owed by a ski area operator to passengers of its lifts. For thirty years, the highest duty of care standard has governed the duties and liabilities of Colorado ski area operators in connection with the construction, operation and maintenance of its lifts. The rule has its origins in Colorado case law; however, there is no corresponding statutory or regulatory guideline. Summit County Development v. Bagnoli, 441 P. 2d 658 (Colo. 1968).

In May, 1996, the trial judge presiding over Bayer's case granted Crested Butte's motion for summary judgment, and dismissed Bayer's claims. One of Colorado's most distinguished jurists, United States District Court Chief Judge, Richard P. Matsch, ruled that the 1990 amendments to Colorado's Ski Safety Act substituted a lesser degree of care for the highest duty of care imposed by the Bagnoli rule. Moreover, Judge Matsch held that Crested Butte's admitted compliance with the Colorado Passenger Tramway Board rules was dispositive evidence that Crested Butte complied with all relevant legal standards. Bayer v. Crested Butte, 94 M 2958 (5/9/96).

Federal Appeals Court certifies issues to Colorado Supreme Court

On appeal, the Tenth Circuit determined that these questions of state law should be certified to the Colorado Supreme Court. It therefore certified two questions to the Colorado Supreme Court:

"What standard of care governs the duty owed by ski lift operators in Colorado to users of those lifts in the winter season?

Separately, and more particularly, does the Colorado Passenger Tramway Safety Act and/or the Colorado Ski Safety and Liability Act preempt or otherwise supersede the pre-existing Colorado common law standard of care governing the duty owed by ski lift operators to users of those lifts in the winter season?" Bayer, 960 P.2d at 71

Colorado Supreme Court holds highest duty of care is applicable in the operation of ski lifts

The Colorado Supreme Court reaffirmed its holding in Bagnoli, and remanded the case back to Judge Matsch for a trial. Relying on Colorado law, the five-member majority opinion, written by Justice Gregory Hobbs, held that "[a] ski lift operator must exercise the highest degree of care commensurate with the lift's practical operation, regardless of the season." Thus, Colorado reaffirmed that the high degree of danger associated with the operation of a ski lift, requires that the operator exercise the highest degree of care. The Court reasoned that "ski lifts are operated at considerable height from the ground over rough, elevated, often precipitous Colorado terrain. A fall from the lift can be calamitous. Passengers entrust their safety to the lift operators. Operation of a ski lift thus entails both greater danger and greater responsibility than circumstances involving ordinary care." Id.

During oral argument in the case Justice Hobbs had suggested that if the Supreme Court held that a lesser standard would be applicable, then Colorado would lose its reputation for safe ski areas. Howard Pankratz, the Denver Post Legal Affairs Writer, recorded that Hobbs asked counsel for Crested Butte; "Wouldn't we be telling the world that Colorado is a less safe place to ski than it has been in the past 30 years?" [Pankratz, "State Ski-safety Issue Raised" (The Denver Post, 2/6/98)]

Several other states have considered the question, and held that ski lift operators owe a highest duty of care to passengers of lifts and tows, including: California, Squaw Valley Ski Corp. v. Superior Court of Placer County 2 Cal.App.4th 1499, 3 Cal.Rptr.2d 897 (1992); Idaho, Hunt v. Sun Valley Inc., 561 F.2d 744 (9th Cir. 1977), compare, Montana, not the higher standard of a common carrier. Pessl v. Bridger Bowl, 524 P.2d 1101 (Mont. 1974). See also, Bayer, 960 P.2d at 78, fn. 8.

Ski Lifts not same as Common Carrier

The Colorado Court, in Bayer, was careful to distinguish its holding from a finding that ski lifts constituted common carriers. The Court held that the highest duty of care was required not under a common carrier analysis. Rather, the duty was implicated by the danger and degree of responsibility involved. Relying on the precedent of Bagnoli, the opinion places squarely "on lift operators the duty to exercise the highest degree of care consistent with the practical operation of the ski lift because (1) passengers give up their freedom of action and movement, surrendering themselves to the care and custody of the ski lift operator, (2) there is usually nothing passengers can do to cause or prevent the accident, and (3) the operator has exclusive possession and control of the ski lift." Bayer, 960 P. 2d at 74.

Highest Duty is consistent with Ski and Tramway legislation

The Court addressed the question of whether the Colorado General Assembly, had legislatively over-ruled Bagnoli by the Ski Safety Act. The Court noted that the 1990 amendments explicitly provided that: Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts. C.R.S. § 33-44-103(3.5)

Moreover, that General Assembly's "careful distinctions between ski slope and ski lift accident liability" is also evidence in C.R.S. § 33-44-113. "This provision limits the amount of damages recoverable from a ski lift operator for accidents that occur while skiing but specifically excludes damages "associated with an injury occurring to a passenger while riding on a passenger tramway." C.R.S. § 33-44-113, Thus, in both a limitation of liability provision and in a limitation of damages provision related to skiing, the General Assembly chose to write an exception preserving the liability and damages law applicable to ski lift accidents."

Commentary

This holding is all well and good for Bayer's accident, and the other rare occurences of a skier coming out of a chair between the terminals. The statistics unequivocally demonstrate that this type of lift accident is very rare. The facts, nevertheless, offered the court an unambiguous fact pattern on which to make its decision. However, what are the implications for Bayer is the more common incident, a mixup on the loading or unloading ramps, with facts closer to Bagnoli's accident?

Actually, it is in the Bagnoli type of case that the Supreme Court's ruling will be most important, and work the most justice in balancing the countervailing duties of skier, statutory duty of lift operator, and highest duty of care in those cases in which there is no explicit standard.

The legislative declaration, establishing the tramway board is made in idealistic language. It describes the far flung goals of the board, to prevent breakdowns, oversee design and construction, to "assure . . . that accepted safety devices . . . are provided for," and inspect lifts. This is the language which decribes the board's task:

In order to assist in safeguarding life, health, property, and the welfare of this state, it is the policy of the state of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of passenger tramways and to assure that reasonable design and construction are used for, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of, passenger tramways.C.R.S. §25-5-701.

Funding is not, however, as generous, or concomittant with its goals. To achieve these goals in the 1998-1999 fiscal year, the board is budgeted, for all of the Board's activities including regulating the lifts at all of Colorado's areas, a paltry $398,093.00. (See, http://www.dora.state.co.us/Tramway/) Compare this budget to the $2 billion dollar industry it regulates. Colorado resorts posted over 12 million skier visits in the 1997-1998 season. [Parker, "Smaller Ski Resorts Thrive" (Denver Post 6/23/98)]. Yet it is the Tramway Board, and its staff which has the sole oversight and regulatory authority on the industry. The demands placed on the Tramway Board, and its administrative body, are overwhelming.

Burdened at the outset with an inadequate budget, the board is further handicapped in its effectiveness, by its composition. By law, a majority of the board consists of ski area industry representatives. By statute, two members directly represent ski area operators while an additional two members represent the passenger tramway manufacturing or design industry. Two members represent the public at large. The United States Forest Service designates the seventh member. The current members include a strong, pro-ski area majority. All of whom have a keen interest in liability issues. The current chairman is James A. Spenst, Vice President of Operations, Copper Mountain Resort. He acts as one of two area representatives along with Terry Fernald, Vice President of Mountain Operations,Telluride Ski Resort. They are joined by Randall C. Woolwine, General Manager, Doppelmayr USA. Interestingly, the pro-area majority is then formed by Richard L. Williams, Special Projects Officer, Arlberg Insurance Company. Williams has had a long career in liability insurance for the ski industry, and presumably had a voice in directing the defense of the Bayer case.

The two public members are Leta Holden, an associate with the well-regarded Denver law firm of Trimble and Nulan, P.C., and Linda Balcom who is a project geologist for the international engineering firm of Harza Engineering Company.

Although the fox-in-the-hen house mentality has often dominated Tramway conduct, on several discreet instances, the Board has vigorously acted to enforce public safety, notably in October 1997 when it promptly and publicly, ordered inspections and repair of faulty bullwheel hub welds reported on several Yan lifts. (Yan Maintenance Instruction 4-1996).

On the other hand, the board has eliminated reporting requirements for most accidents, by defining accidents at or near the loading and unloading ramps as non-reportable. This, despite more than 90% of lift related injury accidents occur at the terminals during loading and unloading.

The Bayer opinion, therefore, is an appropriate counterbalance to the Board's inherent favoritism toward the industry, and its tendency to modify regulations, in favor of the industry. Because the Ski Act's negligence provisions incorporate a per se standard based upon the Board's regulations, an amendment to the regulations operates as a movement of the legal standard of care. Thus, an industry dominated board can unilaterally maneuver the negligence standard. Bayer's holding means that a general claim of negligence may still be made, even if there is no per se violation of a regulation.

When a regulatory breach is relied upon, the jury is also to be instructed on the highest duty of care. Trigg v. City and County of Denver, 784 F. 2d 1058 (10th Cir. 1986) held that it was proper for a trial court to give both the negligence per se instruction, under the statute, and the common law instruction that the ski area operator must exercise the highest duty of care.

Given both the per se standard, or in the alternative, a theory of breach of the highest duty of care, then the jury is in a fair position to exercise common sense to reach a just result.