Colorado Supreme Court Will Not Allow Waiver of Negligence Per Se Claims

We have had grounds to consider liability waivers recently, for example, here in connection with the implosion of the OceanGate submersible, here in connection with venues where invitees are encouraged to engage in activities that might result in injury, here in connection with “no responsibility waivers,” and here in connection with the Warsaw Convention. The issue before the Colorado Supreme Court in Miller v. Crested Butte, LLC, was the enforcement of a waiver that purported to override statutory duties.

The case involves a chairlift accident that left a minor a quadriplegic. The details are horrifying, involving her father trying desperately to pull her into the lift as it ascended. He eventually lost his grip and she plummeted thirty feet, landing on her back. Her parents brought claims based in negligence and negligence per se.

The child’s father, Mr. Miller, purchased a three-day pass for the skiing venue online. In order to do so, he had to agree to a liability waiver. The waiver is spelled out in detail, mostly in ALLCAPS in multiple separate paragraphs. This would all be very impressive if Mr. Miller had actually read and understood the waivers, but given the nature of online contracting, he almost certainly did neither. And then there is the empirical evidence that people are actually less likely to read and understand text written in ALLCAPS.

The parents alleged negligence, gross negligence, and negligence per se. The trial court granted Crested Butte’s motion to dismiss as to the first and third claims, but not as to gross negligence. The Colorado Supreme Court has discretion to assume original jurisdiction in extraordinary circumstances, and it exercised its discretion to review the negligence and negligence per se claims in this instance.

Negligence per se occurs when a defendant violates a statute adopted for the public’s safety and the violation proximately causes a plaintiff’s injury. In this case, there were Colorado rules imposing a duty on ski venues to monitor their chair lifts. The Millers alleged that Crested Butte had not done so,  and that their daughter was injured as a result. The trial court treated the rule as just establishing a general duty to exercise reasonable care. The Supreme Court rejected that characterization of the rule. The rule’s specifically-delineated duties exceed those of a general duty to exercise reasonable care. Because the statute in question was adopted for the public’s safety, the Millers have stated a negligence per se claim. 

The next issue is whether Crested Butte could be permitted to absolve itself of its duties through a liability waiver. In general, Colorado law provides that a party cannot discharge its obligation to perform a statutory duty by way of an exculpatory agreement. Crested Butte relied on a separate statutory provision that permits parents to sign liability waivers on behalf of their children. The Court was “not convinced that the legislature would have authorized ski area operators to override a longstanding legislative scheme detailing the duties and liabilities of lift operators without an express reference to that statutory scheme.” Nor did the Court think that the legislature would tacitly permit ski area operators to absolve themselves of statutory obligations through private contract. 

The Millers’ negligence claim did not fare as well. Colorado scrutinizes with care exculpatory agreements that seek to insulate parties form their own negligence. It applies a four-factor test: “(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 expressed in clear and unambiguous language.”

The discussion turned on the third and fourth factors. As to the third, the Court found the waiver language had the requisite specificity to alert Mr. Miller to its scope. It also found that that Mr. Miller did not suffer from an obvious disadvantage in bargaining power. It did so without attempting to determine whether it was possible to ski at any venue in Colorado without signing a similar waiver, but perhaps that is too much to ask of a court. The Court’s analysis of the fourth factor also turned on the specificity of the waiver language and the notice they provided to the prospective skier. The Court found no problem with the clarity of the release and thus affirmed the dismissal of the Millers’ ordinary negligence claim. Two Justices dissented in part. They would have dismissed both of the Millers’ claims.