Law School Case Brief
Brigance v. Vail Summit Resorts, Inc. - 883 F.3d 1243 (10th Cir. 2018)
The Colorado Supreme Court has instructed courts to consider the following four factors when determining the enforceability of an exculpatory agreement: (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. It appears that if an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable. Although consideration of these factors is generally sufficient to determine the enforceability of exculpatory agreements, the Colorado Supreme Court has clarified that other public policy considerations not necessarily encompassed in the Jones v. Dressel factors may invalidate exculpatory agreements.
During a ski lesson at Keystone Mountain Resort ("Keystone"), plaintiff appellant Dr. 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 defendant appellee 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.
Did any of the factors for determining the enforceability of an exculpatory agreement preclude the enforcement of a Ski School Waiver or Lift Ticket Waiver?
The United States Court of Appeals for the Tenth Circuit affirmed the district court's grant of summary judgment in favor of VSRI and the partial grant of the VSRI's motion to dismiss. The Court examined each of the Jones v. Dressel factors for determining the enforceability of an exculpatory agreement. It led to the conclusion that none of them precluded enforcement of a Ski School Waiver or Lift Ticket Waiver. The factors included the existence of a duty to the public, the nature of the service performed, whether the contract was fairly entered into, and whether the intention of the parties was expressed in clear and unambiguous language. The Court held that the district court properly determined that the provisions of the Colorado Ski Safety Act of 1979 and the Passenger Tramway Safety Act had no effect on the enforceability of defendant ski resort's waivers. Colorado law had long permitted parties to contract away negligence claims in the recreational context. The Court further explained that although analysis of the Jones factors is often sufficient to determine the validity of an exculpatory agreement, the Colorado Supreme Court has identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors. The Court held that Colorado's relatively permissive public policy toward recreational releases is one that means some losses go uncompensated. The Court concluded that Dr. Brigance's claims were barred by the waivers.
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