COMMENTARY ON BAYER DECISION

BAYER V. CRESTED BUTTE

Court: UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF COLORADO

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.

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. 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.

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."

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