from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-01394-WJM-NYW)
Trenton J. Ongert (Joseph D. Bloch with him on the briefs),
Bloch & Chapleau, LLC, Denver, Colorado, for Plaintiff -
Michael J. Hofmann, Bryan Cave LLP, Denver, Colorado, for
Defendant - Appellee.
PHILLIPS, KELLY, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
a ski lesson at Keystone Mountain Resort
("Keystone"), Doctor Teresa Brigance's ski boot
became wedged between the ground and the chairlift. She was
unable to unload but the chairlift kept moving, which caused
her femur to fracture. Dr. Brigance filed suit against Vail
Summit Resorts, Inc. ("VSRI"), raising claims of
(1) negligence, (2) negligence per se, (3) negligent
supervision and training, (4) negligence (respondeat
superior), (5) negligent hiring, and (6) violation of the
Colorado Premises Liability Act (the "PLA"), Colo.
Rev. Stat. § 13-21-115. The district court dismissed Dr.
Brigance's negligence and negligence per se claims at the
motion to dismiss stage. After discovery, the district court
granted VSRI's motion for summary judgment on the
remaining claims, concluding the waiver Dr. Brigance signed
before participating in her ski lesson, as well as the waiver
contained on the back of her lift ticket, are enforceable and
bar her claims against VSRI. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
is a ski resort located in Colorado that is operated by VSRI.
In March 2015, Dr. Brigance visited Keystone with her family
and participated in a ski lesson. At the time, ski lesson
participants, including Dr. Brigance, were required to sign a
liability waiver (the "Ski School Waiver") before
beginning their lessons. The Ski School Waiver
signed by Dr. Brigance contained, among other
things, the following provisions:
ACTIVITY, SKI SCHOOL, & EQUIPMENT RENTAL WARNING,
ASSUMPTION OF RISK, RELEASE OF LIABILITY &
IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL
. . .
2. I understand the dangers and risks of the
Activity and that the Participant ASSUMES ALL
INHERENT DANGERS AND RISKS of the Activity,
including those of a "skier" (as may be defined by
statute or other applicable law).
3. I expressly acknowledge and assume all additional
risks and dangers that may result in . . . physical
injury and/or death above and beyond the inherent
dangers and risks of the Activity, including but not
limited to: Falling; free skiing; following the
direction of an instructor or guide; . . . equipment
malfunction, failure or damage; improper use or maintenance
of equipment; . . . the negligence of Participant, Ski Area
employees, an instructor . . . or others; . . . lift loading,
unloading, and riding; . . . . I UNDERSTAND THAT THE
DESCRIPTION OF THE RISKS IN THIS AGREEMENT IS NOT
COMPLETE AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO
PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND
DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN
OR UNKNOWN, INHERENT OR OTHERWISE.
4.Participant assumes the responsibility . .
. for reading, understanding and complying with all signage,
including instructions on the use of lifts. Participant must
have the physical dexterity and knowledge to safely load,
ride and unload the lifts. . . .
. . .
6. Additionally, in consideration for
allowing the Participant to participate in the Activity,
I AGREE TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT
TO SUE [VSRI] FOR
ANY . . . INJURY OR LOSS TO PARTICIPANT,
INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN
WHOLE OR IN PART OUT OF PARTICIPANT'S PARTICIPATION IN
THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS
BASED ON [VSRI's] ALLEGED OR ACTUAL NEGLIGENCE .
. . .
App'x at 117 (emphasis in original).
addition, Dr. Brigance's husband purchased a lift ticket
enabling her to ride the ski lifts at Keystone. Dr. Brigance
received the ticket from her husband and used it to ride the
Discovery Lift. The lift ticket contained a warning and
liability waiver (the "Lift Ticket Waiver") on its
back side, which provides in pertinent part:
AGREES AND UNDERSTANDS THAT SKIING . . . AND
USING A SKI AREA, INCLUDING LIFTS, CAN BE HAZARDOUS.
Under state law, the Holder of this pass 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
the ski area operator for any injury resulting from any of
the inherent dangers and risks of skiing. Other risks include
cliffs, extreme terrain, jumps, and freestyle terrain. Holder
is responsible for having the physical dexterity to safely
load, ride and unload the lifts and must control speed and
course at all times. . . . Holder agrees to ASSUME
ALL RISKS, inherent or otherwise. Holder agrees to
hold the ski area harmless for claims to person or property.
. . .
. . .
REFUNDS. NOT TRANSFERABLE. NO RESALE.
at 121 (emphasis in original).
receiving some instruction during her ski lesson on how to
load and unload from a chairlift, Dr. Brigance boarded the
Discovery Lift. As Dr. Brigance attempted to unload from the
lift, her left ski boot became wedged between the ground and
the lift. Although she was able to stand up, she could not
disengage the lift because her boot remained squeezed between
the ground and the lift. Eventually, the motion of the lift
pushed Dr. Brigance forward, fracturing her femur.
Brigance filed suit against VSRI in the United States
District Court for the District of Colorado as a result of
the injuries she sustained while attempting to unload from
the Discovery Lift. In her amended complaint Dr. Brigance
alleged that the short distance between the ground and the
Discovery Lift at the unloading point-coupled with the
inadequate instruction provided by her ski instructor, the
chairlift operator's failure to stop the lift, and
VSRI's deficient hiring, training, and supervision of
employees-caused her injuries. She consequently asserted the
following six claims against VSRI: (1) negligence; (2)
negligence per se; (3) negligent supervision and training;
(4) negligence (respondeat superior); (5) negligent hiring;
and (6) liability under the PLA.
moved to dismiss all claims raised by Dr. Brigance with the
exception of her respondeat superior and PLA claims. The
district court granted in part and denied in part VSRI's
motion. Brigance v. Vail Summit Resorts, Inc.
("Brigance I"), No. 15-cv-1394-WJM-NYM,
2016 WL 931261, at *1-5 (D. Colo. Mar. 11, 2016). It
dismissed Dr. Brigance's negligence claim as preempted by
the PLA. Id. at *3-4. It also dismissed her
negligence per se claim, concluding that she "fail[ed]
to identify any requirement" of the Colorado Ski Safety
Act of 1979 (the "SSA"), Colo. Rev. Stat.
§§ 33-44-101 to -114, that VSRI had allegedly
violated. Brigance I, 2016 WL 931261, at *2. In
dismissing this claim, the district court also held that the
provisions of the Passenger Tramway Safety Act (the
"PTSA"), Colo. Rev. Stat. §§ 25-5-701 to
-721, relied upon by Dr. Brigance "do[ ] not provide a
statutory standard of care which is adequate to support [a]
claim for negligence per se." Brigance I, 2016
WL 931261, at *2 (emphasis omitted). But the district court
refused to dismiss Dr. Brigance's claims regarding
negligent supervision and training and negligent hiring.
Id. at *4-5.
completion of discovery, VSRI moved for summary judgment on
the basis that the Ski School Waiver and Lift Ticket Waiver
completely bar Dr. Brigance's remaining claims. In the
alternative, VSRI argued that summary judgment was
appropriate because (1) Dr. Brigance failed to satisfy the
elements of her PLA claim and (2) her common-law negligence
claims are preempted by the PLA and otherwise lack
evidentiary support. Dr. Brigance opposed the motion,
contending in part that the waivers are unenforceable under
the SSA and the four-factor test established by the Colorado
Supreme Court in Jones v. Dressel, 623 P.2d 370
(Colo. 1981). Dr. ...