| District Court, Summit County, Colorado P.O. Box 269 501 N. Park Avenue Breckenridge, Colorado 80424 | ▲COURT USE ONLY▲ |
|---|---|
| JOHN RANDOLPH HARRIS, Plaintiff v. BRANDON SCHREIBER, and VAIL SUMMIT RESORTS, INC. dba KEYSTONE RESORT, Defendants | |
| Case No.: 2009 CV 133 Div.: R | |
| OPINION RE: PLAINTIFF’S C.R.C.P. 56(h) MOTION FOR DETERMINATION OF LAW | |
THIS MATTER comes before the District Court for Summit County by way of plaintiff John Randolph Harris’ (“plaintiff”) C.R.C.P. 56(h) Motion for Determination of Law. Through this motion, plaintiff seeks a ruling that an exculpatory clause does not shield defendants Brandon Schreiber and Vail Summit Resorts, Inc. dba Keystone Resort (respectively, “Schreiber” and “Vail;” collectively, “defendants”) from liability. The Court has considered the record and the arguments presented by the parties, and hereby issues this Opinion.
At the outset, the Court notes that plaintiff has not abided by the formatting requirements of C.R.C.P. 10(d)(3)(II), which requires double spacing for briefs and legal memoranda. The failure to abide by this requirement has also allowed plaintiff to avoid the presumptive ten-page limit of C.R.C.P. 121, §1-15(1). Defendants have likewise failed to abide by the presumptive ten-page limit, although this could perhaps be due to plaintiff’s failure to do so. While the Court may be willing to consider lengthy briefs, the Court does expect the parties to show respect for the Colorado Rules of Civil Procedure. In the future, the parties shall certify to the Court, in the same manner compliance with the duty to confer is certified, that a brief in excess of ten pages is necessary. If the parties do not follow the proper formatting requirements, their filings may be rejected by the Court without notice and without extension of any deadline.
The parties have invoked C.R.C.P. 56(h), which provides that:
At any time after the last required pleading, with or without supporting affidavits,
a party may move for determination of a question of law. If there is no genuine
issue of any material fact necessary for the determination of the question of law,
the court may enter an order deciding the question.
The purpose of this rule is to allow a court to address issues of law which do not decide the claim but which will have a significant impact upon the manner in which the litigation proceeds. In re Bd. of County Commissioners of County of Arapahoe, 891 P.2d 952, n. 14 (Colo. 1995). A court may make such a determination of law only if no determination of a genuine issue of fact is required to do so.
The Court has reviewed the record, and finds no relevant disputes of fact. Additionally, the efficacy of an exculpatory agreement is a question of law for determination by a court. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998). C.R.C.P. 56(h) is thus the appropriate manner by which to proceed.
The issue upon which the parties seek the Court’s opinion is whether an exculpatory clause incorporated into plaintiff’s season ski pass application absolves defendants of liability. In resolving this question, the Court is required to address the following issues:
A. Colorado law on exculpatory clauses;
B. Whether the exculpatory clause herein is wholly invalid as against public
policy; and
C. Whether the exculpatory clause allows Vail to disclaim the duty imposed by C.R.S. §33-14-101, et seq. (the “Snowmobile Act”) on Schreiber. These issues are of first impression in Colorado. The Court has also reviewed some decisions of other jurisdictions regarding their own law on the subject and, while they have assisted the Court in its analysis of the above issues, the Court does not find them to be persuasive as to the result here. The Court concludes the exculpatory clause is not invalid, of itself, as against public policy. The Court finds, however, that the Snowmobile Act imposes duties upon individuals, and that statutorily-imposed duties cannot be contractually waived. The Court goes on to find that the doctrine of respondeat superior is grounded in public policy. The Court ultimately concludes that just as an individual’s negligence per se cannot be waived as a matter of public policy, and as the doctrine of holding an employer responsible for an employee’s negligence is a matter of
public policy, it would be against public policy to allow an employer to contractually avoid liability for an employee’s negligence per se.
This case arises from a collision between plaintiff and a snowmobile operated by Schreiber, an employee of Vail. Plaintiff seeks damages under theories of negligence per se for a violation of the Snowmobile Act, common law negligence, and respondeat superior.
Plaintiff possessed a season ski pass, which through the application required him to agree, inter alia, to the following terms:
The Undersigned expressly ASSUME ALL RISKS associated with Holder’s
participation in the Activity, known or unknown, inherent or otherwise; the
Undersigned agree and understand these risks include, but are not limited to, risks associated with: marked and unmarked obstacles, slick or uneven walking surfaces, surfaces covered with ice and snow, varying weather and surface conditions, diminished visibility, rugged mountainous terrain, variations in terrain, bumps, stumps, forest growth, downed timber, rocks of various sizes, strenuous activity, high altitude, collisions, failure of protective barriers and fencing and sharing the ski area facilities and Activity venues with people directly involved and/or not directly involved in the Activity. Holder assumes the responsibility of maintaining control at all times while engaging in the Activity. The Undersigned understand and acknowledge: 1) Holder has been informed and understands all rules and regulations of participation in the Activity; 2) Holder is responsible for reading, understanding and complying with all signage, including instructions on use of the lifts; 3) Holder must have the physical dexterity and knowledge sufficient to safely load, ride and unload the lifts; 4) Holder assumes the risks of riding the lifts and engaging in activities accessible from the lifts; 5) Holder may encounter snowmobiles, snowmaking, snow-grooming equipment at any time; and 6) that falls and collisions occur and that injuries are a common and ordinary occurrence of the Activity. . . . The Undersigned ASSUME ALL RISKS associated with the Holder’s participation in the Activity. IN CONSIDERATION OF ALLOWING HOLDER TO USE THE SKI AREA FACILITIES, THE UNDERSIGNED AGREE TO HOLD HARMLESS, RELEASE, DEFEND, AND INDEMNIFY Vail Resorts, Inc., The Vail Corporation, it’s [sic] affiliated companies and subsidiaries . . . FROM ANY AND ALL LIABILITY and/or claims for injury or death to persons or damage to properties arising from the Holder’s engagement in the Activity. The Undersigned take full responsibility for any injury or loss to Holder, including death, which Holder may suffer, arising in whole or part out of the Activity, INCLUDING THOSE INJURIES AND DAMAGES CAUSED BY ANY RELEASED PARTY’S ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY. By execution of this release, THE UNDERSIGNED AGREE NOT TO SUE ANY RELEASED PARTY and agree that they are releasing any right to make a claim or file a lawsuit against any Released Party. The Undersigned further agree to defend and indemnify each Released Party for any and all claims of the Undersigned and/or a third party arising in whole or in part from Holder’s engagement in the Activity. The Undersigned agree to pay all costs and attorney’s fees incurred by any Released Party in defending a claim or suit brought by or behalf of the Undersigned. … I HAVE HAD SUFFICIENT TIME TO CAREFULLY READ THE FOREGOING LIABILITY RELEASE. I UNDERSTAND ITS CONTENTS AND SIGN IT WITH FULL KNOWLEDGE OF ITS SIGNIFICANCE. I AM AWARE I AM RELEASING CERTAIN LEGAL RIGHTS THAT I, AND/OR
MY CHILD, MAY OTHERWISE HAVE.1
Defendants argue that the foregoing provisions absolve them of liability for plaintiff’s injuries.
The Court first examines the law of Colorado as it relates to exculpatory clauses and the public interest. The Court then determines whether the exculpatory clause here at issue is void as against the public interest.
A. Applicable Law
While exculpatory agreements attempting to insulate parties from their own negligence are disfavored, such agreements are not invalid per se as against public policy, “as long as one party is not ‘at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence.’” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004), citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Such agreements are to be closely scrutinized to make certain that the intent of the parties is expressed in clear and unambiguous terms, and that the agreement was fairly entered into. Id. Under no circumstances, however, can an exculpatory agreement shield against willful and wanton negligence. Chadwick, 100 P.3d at 467, citing Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981).
Assuming the foregoing to be satisfied, an exculpatory agreement may nevertheless be invalid as against public policy “if it involves a service that the defendant is obligated to provide for the public or was entered into in an unfair manner.” Chadwick, 100 P.3d at 467, citing Jones,
1 The Court has taken this language from the parties’ “Stipulated Exhibit A,” submitted November 18, 2009. The “Original Exhibit C” contains plaintiff’s signature immediately below the last paragraph of the quoted language.
623 P.2d at 376. By way of general characteristics of exculpatory agreements that are void as
against the public interest, the Colorado Supreme Court has stated as follows:
Such agreements generally involve businesses suitable for public regulation; that
are engaged in performing a public service of great importance, or even of
practical necessity; that offer a service that is generally available to any members
of the public who seek it; and that possess a decisive advantage of bargaining
strength, enabling them to confront the public with a standardized adhesion
contract of exculpation. Chadwick, 100 P.3d at 467, citing Jones, 623 P.2d at 376 (citing Tunkl v. Regents of Univ. of Cal., 383 P.2d 441, 444-46 (Cal. 1963)).
Plaintiff argues that the Court should apply the “Tunkl test” to determine Vail’s exculpatory agreement to be invalid, and that the agreement was unfairly obtained. The Court is not persuaded.
B. Vail’s Exculpatory Clause is Not Void, of Itself, as Against the Public Interests
Chadwick declares the Tunkl test to be imprecise. Chadwick, 100 P.3d at 467. The Court recognizes that, in certain situations, consideration of other issues would be appropriate. Nevertheless, in the instant case, application of the Tunkl test, as approved by Chadwick and Jones, resolves the question of whether Vail’s exculpatory agreement is void of itself as against the public interest.
The Court finds the issue of whether defendants provided a service of great importance or practical necessity to be dispositive of the issue. The Court finds that defendants were not providing a service of great importance or practical necessity. Therefore, under existing Colorado law, the exculpatory clause here at issue was not void as against the public interest. The Court declines to discuss the other factors of Tunkl.
The Colorado Supreme Court has expressly determined that recreational activities are not
of practical necessity for purposes of determining the validity of an exculpatory clause. Chadwick, 100 P.3d at 467-68, citing Jones, 623 P.2d at 377; see also B & B Livery, supra, Heil, supra, Barker v. Colo. Region-Sports Car Club of Am., Inc., 532 P.2d 372, 377 (Colo. App. 1974). Thus, the Court must determine whether skiing is a recreational activity.
Plaintiff urges the Court to find that skiing is an activity of great importance or practical necessity, based upon the benefit conferred on the state by the ski industry. The Court agrees that the economic benefit created by the ski industry is important. Plaintiff’s argument, however, simply overlooks the Supreme Court’s explicit determination in Chadwick that a recreational activity is neither of great importance or practical necessity for purposes of the Tunkl test.
The Court agrees with defendants’ assertion that skiing is a recreational activity and that it is an elective activity. People choose to ski; they are not required to ski. Skiing is commonly thought of as a sport; a sport is defined as a “diversion” or a “recreation.”2 All of this indicates skiing to be a recreational activity.
Assuming arguendo that the status of “recreation” is not determinative of the issue, the ski industry does not provide a service that is, in itself, of great importance or fundamental necessity to the public overall. For instance, skiing is not of importance or necessity to the public in the way that housing rentals have been held to be. See Stanley v. Creighton Co., 911 P.2d 705, 708 (Colo. App. 1996).3 The Court finds that for an activity to be of “great importance” or
2 See Webster’s Ninth. 3 The Court notes that Stanley could be argued to require that the exculpatory clause herein be found void, as a ski area is open to the public and this factor was of importance to the Stanley decision. The Court finds Stanley to be distinguishable, in that the service provided to the public in Stanley was of necessity, whereas the service provided by a ski area is not of necessity.
“practical necessity,” it must significantly affect or be requisite to a reasonable person’s life.
Skiing simply does not rise to that level in either category.
Therefore, the Court finds: 1) that skiing is a recreational activity; and 2) that skiing is neither of great importance nor practical necessity. As such, the exculpatory agreement is not invalid on these grounds.
C. The Exculpatory Agreement was Fairly Obtained
Plaintiff also argues that the season pass application was an unfair contract of adhesion obtained through superior bargaining power, and that the exculpatory agreement is thus invalid. The Court disagrees.
As discussed above, skiing is a recreational activity and not an essential service. In such instances, the Colorado Supreme Court has determined that there is no unequal bargaining power such that an exculpatory agreement should be found invalid. See Jones, 623 P.2d at 377-78.
The Court finds no reason to not apply Jones. Skiing, like sky-diving in Jones, is a recreational activity. Although the ski pass application procedure is tantamount to a take-it-orleave-it process, it is not an essential activity. Plaintiff was free to reject the exculpatory clause and forego the season pass, with no resultant harm, had he been uncomfortable with waiving liability on the part of defendants. The Court therefore concludes that the exculpatory agreement was fairly entered into and is not invalid on this ground.
The Snowmobile Act imposes a statutory requirement upon an individual, through both criminal and civil liability, which the Court finds cannot be disclaimed contractually. The Court also concludes that the doctrine of respondeat superior is based in public policy. Given that an
employee’s violation of a statutory duty cannot be disclaimed as to the employee and that a
statutory duty is a matter of public policy, the Court determines that respondeat superior liability for a negligence per se tort of an employee cannot be disclaimed via contract. To do so would violate public policy.4
A. Applicable Law
Despite the fact that exculpatory agreements are not invalid of themselves, statutory requirements cannot be avoided or modified by contract. See Peterman v. State Farm Mut. Auto. Ins. Co., 961 P.2d 487, 492 (Colo. 1998), citing Univ. of Denver v. Indus. Comm’n of Colo., 335 P.2d 292 (Colo. 1959); see also Amedeus Corp. v. McAllister, --- P.3d ---, 2009 WL 400072, *2 (Colo. App. 2009), Phillips v. Monarch Recreation Corp., 668 P.2d 982, 987 (Colo. App. 1983). Conversely, to the extent that an exculpatory clause disclaims duties that are not imposed by statute, such a clause is valid. Martinez v. Cont’l Enters., 730 P.2d 308, 316 (Colo. 1986).
It is axiomatic that a contractual provision which is contrary to public policy is void. Harding v. Heritage Health Prods. Co., 98 P.3d 945, 949 (Colo. App. 2004), citing Menzel v. Niles Co., 281 P. 364, 365 (Colo. 1929). An exculpatory clause is nothing but a contractual provision and, while an exculpatory clause may not be void as a matter of public policy, it can be void as a contractual provision for violating public policy.
4 The subtle, yet important, difference between an exculpatory clause being void of itself as against public policy, and an exculpatory clause avoiding a duty imposed as a matter of public policy, must be noted. The Court does not find the exculpatory clause herein to be void, of itself, as against public policy. Nevertheless, the Court finds that it would violate public policy to allow an employer to avoid liability for an employee’s violation of a statutory duty imposed on the employee.
B. The Snowmobile Act Allows a Claim for Negligence Per Se
C.R.S. §33-14-116 provides, in pertinent part, as follows:
The statute does not expressly provide for a civil remedy.
A statute can prescribe a standard of conduct such that a violation thereof is negligence.
Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 573 (Colo. 2008), citing Largo Corp.
v. Crespin, 727 P.2d 1098, 1107 (Colo. 1986). In order to recover under a negligence per se
theory, a plaintiff must be a member of the class the statute is designed to protect, and the
injuries suffered must be of the variety the statute protects against. Lombard, 187 P.3d at 573-74.
So long as these elements are present, negligence per se can be based upon a criminal statute,
even though that statute does not specifically provide for civil liability. See Bittle v. Brunetti, 750
P.2d 49, 55 (Colo. 1988), citing Largo Corp., 727 P.2d at 1108-9.
The language of C.R.S. §33-14-116 makes clear that it is designed to protect the general
public against the careless, imprudent, or reckless operation of a snowmobile.5 Protection of the
5 For instance, the language of C.R.S. §33-14-116 is similar to that of C.R.S. §42-4-1402, which has been held to be a basis for negligence per se. See Pyles-Knutzen v. Bd. of County Comm’rs of County of Pitkin, 781 P.2d 164, 169 (Colo. App. 1989).
general public necessitates protection against the types of injuries typical of a collision with a snowmobile, which would include the injuries allegedly suffered by plaintiff here. Thus, the Court finds that C.R.S. §33-14-116 allows for a claim of negligence per se.
B. An Exculpatory Clause Cannot Avoid Negligence Per Se The Snowmobile Act imposes statutory requirements that cannot be waived. The Court discusses its reasoning below, which is based upon numerous considerations.
Although the Snowmobile Act imposed no direct duty on Vail, Schreiber had a duty under it that could not be waived. The Court further finds that respondeat superior has its roots in public policy and the law of agency. In light of the foregoing, the Court ultimately determines that allowing Vail to avoid respondeat superior liability for Schreiber’s alleged failure to comply with statutory requirements would violate public policy.
1. The Snowmobile Act Does Not Impose Criminal Liability on Vail
C.R.S. §33-14-116 imposes no direct criminal liability upon Vail. C.R.S. §18-1-606 does impose criminal liability on corporations for violating “a specific duty of affirmative performance imposed upon the business entity by law.” The duty imposed by the Snowmobile Act is, however: 1) not a duty of affirmative performance;6 and 2) not imposed upon Vail, as a corporation cannot operate a snowmobile even if it can be considered a “person” under the statute.7 Therefore, Vail is not criminally liable for Schreiber’s alleged violation of the Snowmobile Act. The corollary finding that no direct statutory duty is imposed on Vail is requisite.
6 See Black’s Seventh, c.f. “negative duty” 7 The Court does not make this determination based upon the legal fiction that a corporation is a distinct entity. Rather, the determination is made simply because a corporation, lacking physical form, lacks the ability to operate a snowmobile in the manner contemplated by the Snowmobile Act.
The question thus becomes: Is Vail able to contractually disclaim respondeat superior
liability for an employee’s negligence per se? Resolution of this issue necessitates an examination of respondeat superior.
2. Respondeat Superior
The doctrine of respondeat superior arises from the law of agency. USAA v. Parker, 200 P.3d 350, 360, n. 13 (Colo. 2009), citing Restatement (Third) of Agency §2.04, cmt. b (2006). To succeed on a claim of respondeat superior, the employee must be under the employer’s control; for example, an independent contractor relationship cannot give rise to a respondeat superior claim, as the employer does not control an independent contractor. Daly v. Aspen Ctr. for Women’s Health, Inc., 134 P.3d 450, 452 (Colo. App. 2005), cert. denied, citing W. Stock Ctr., Inc. v. Sevit, Inc., 578 P.2d 1045, 1049 (Colo. 1978).
It is worthy of note that the law of agency is intimately connected with public policy. See, e.g., Snowden v. Taggart, 17 P.2d 305, 307 (Colo. 1932) (public policy requires that agent cannot commit wrong and then shield himself through a corporate form); Merchants Mut. Fire Ins. Co. of Colo. v. Harris, 116 P. 143, 147 (Colo. 1911) (agent communicating facts to principal, and principal’s constructive knowledge thereof, are matters of public policy); Deutsch
v. Baxter, 47 P. 405, 405 (Colo. App. 1896) (agent not serving two principals in the same transaction is matter of public policy); Higgins v. Armstrong, 10 P. 232, 240 (Colo. 1886) (agent communicating facts to principal is matter of public policy).8 The Court concludes that because
8 These cases do not expressly declare agency law to be a matter of public policy, but rather that certain facets of agency law implicate public policy. This is, however, enough for the Court to find that agency law, as a matter of generality, implicates public concern.
respondeat superior arises from the law of agency, which is connected to public policy,
respondeat superior implicates public policy.
Although Colorado courts have not addressed the issue of whether respondeat superior is grounded in the public interest, the courts of other jurisdictions have; the Court finds the reasoning of these other courts to be persuasive. See, e.g., Polsky ex rel. James Cape & Sons Co.
For the above reasons, the Court concludes that respondeat superior, of itself, involves
issues of public policy and public interest.
3. An Employer Cannot Waive Respondeat Superior Liability for an Employee’s Negligence Per Se If respondeat superior liability for an employee’s failure to abide by statutory requirements could be waived, then corporate entities would have no incentive to abide by, or encourage their employees to abide by, statutory requirements. Defendants, citing Robinette v. Aspen Skiing Co., L.L.C., --- F.Supp.2d ---, 2009 WL 1108093 (D. Colo. 2009), suggest otherwise. With no disrespect intended for the United States District Court, this Court is not persuaded by Robinette. Were the Court to find the exculpatory clause to be effective, Vail would: 1) avoid civil liability; and 2) have no criminal liability. Vail would not have any liability whatsoever for violating a statute, and would thus have no incentive to ensure compliance with a statutory requirement.9 A corollary is that the Snowmobile Act does not impose criminal liability upon Vail; Vail thus cannot be directly liable for its employees’ negligence per se. The Court also concludes an employer’s ability to escape liability for an employee’s breach of a statutorily-imposed duty to be repugnant to the public interest. As discussed above, respondent superior has its roots in public policy. Under Colorado law, respondent superior has its roots in agency law, which has multiple ties to public policy; under the convincing law of other jurisdictions, respondent superior is a matter of public policy.
The Court thus concludes that Vail’s respondeat superior liability for Schreiber’s alleged negligence per se is a matter of public interest and public policy. Vail’s exculpatory clause
9 Civil liability is well-recognized as being an incentive against engaging in wrongful conduct. See, e.g., Crowe v. Tull, 126 P.3d 196, 204 (Colo. 2006).
purports to waive liability for violation of a duty imposed by statute and as a matter of public interest and public policy.
An exculpatory clause purporting to waive a statutory duty is void, except to the extent the duties supposedly waived are not statutory. See Peterman, Martinez, supra. Furthermore, a contract that goes against public policy is also void. See Harding, supra.
In consideration of the foregoing, the Court concludes that Vail cannot contractually waive respondent superior liability, imposed as a matter of public policy, for an employee’s negligence per se, which exists to protect the interests of the public.
The parties have requested the Court‘s opinion on the issue of whether Vail’s exculpatory clause is valid. The Court finds the exculpatory clause is not wholly invalid as against public policy. Nevertheless, the Court concludes that Vail cannot waive respondeat superior liability for its employees’ negligence per se. Once again, to do so would violate the public policy underlying both doctrines.
DATED this 21st day of December, 2009, at Breckenridge.
