On January, 8, 2018, the 10th Circuit Court of Appeals issued its Opinion in the case of Teresa Brigance v. Vail Summit Resorts, Inc. The Federal Appeals Court ruled that Vail’s broad liability waiver that appears on the back of a ski lift ticket completely bars the claims of Dr. Teresa Brigance. Dr. Brigance was seriously injured while attempting to unload from a beginner chair lift during a ski lesson at the Keystone ski area, which his owned by Vail Resorts.
“Giving blanket immunity to ski areas for injuries to guests sets a dangerous precedent,” said Joseph D. Bloch, Dr. Brigance’s attorney. “This should be very concerning to the millions of skiers and snowboarders who frequent Colorado’s resorts every year as they may have little or no recourse whatsoever if they are injured on the mountain, even when the ski area is clearly negligent.” A copy of the 10th Circuit’s Opinion is included with this Press Release.
On March 23, 2015, Dr. Teresa Brigance participated in a beginner ski lesson at the Keystone ski area taught by Keystone instructor Meghan Humphrey. Ms. Humphrey had not completed Keystone’s ski instructor training courses, and had recently been moved from her prior position at the Keystone nursery to teach ski lessons to beginner skiers.
During the ski lesson, and after several “magic carpet” rides, Ms. Humphrey instructed the class on the procedures for boarding and unloading the chair lift. After receiving these instructions, Dr. Brigance and the rest of her class boarded the Discovery chair lift. The Discovery chair lift is a beginner lift. As Dr. Brigance attempted to unload from the Discovery chair lift in accordance with Ms. Humphrey’s instructions, her left ski boot became wedged between the chair and the ground at the unloading area, preventing her from standing up.
However, Defendant’s chair lift operator, Brett Carter, did not stop the lift. Rather, Mr. Carter only slowed the lift. As her chair continued to push her forward with her left boot and leg still trapped, Dr. Brigance heard her left leg “snap,” and she was thrown forward to the snow. Dr. Brigance fractured her left femur as a result of the incident. She was hospitalized for over a week and still suffers greatly from her injuries.
Dr. Brigance hired an engineer expert who personally examined the Discovery chair lift and issued an expert opinion. Defendant designed, built, and maintained the unloading area of the Discovery Lift where Dr. Brigance was injured. According to Dr. Brigance’s engineer expert, a “pinch point” exists in the unloading area of the Discovery Lift, which caused Dr. Brigance’s injury. The engineering expert further determined that this “pinch point” constitutes a dangerous condition and that Defendant failed to adequately warn its guests of this dangerous condition.
Dr. Brigance also hired a Senior Ski Patroller expert with 17 years of experience to evaluate Defendant’s training procedures and the conduct of Defendant’s employees. This expert determined that Defendant failed to properly train its ski instructor and chair lift operator, that Defendant’s chair lift operator improperly failed to stop the lift when Dr. Brigance’s boot became wedged, that Defendant did not properly maintain the unloading area of the Discovery Lift, and that Defendant did not properly investigate this incident.
In addition, Vail was aware of other guests’ equipment becoming caught under a chair on the Discovery Lift while unloading.
Dr. Brigance’s incident related medical bills total $238,399.05. In addition, Dr. Brigance’s vocational economic expert determined that Dr. Brigance incurred past lost income of over $134,000 and will incur projected future loss of income of $1,938,664. Thus, Dr. Brigance’s damages from this incident were substantial.
Dr. Brigance filed a lawsuit against Vail Summit Resorts, Inc., in U.S. District Court for the District of Colorado. The District Court dismissed Dr. Brigance’s lawsuit less than 2 months before trial, holding that the broad lift ticket waiver on the back of Dr. Brigance’s lift ticket, as well as the ski school waiver, barred Dr. Brigance’s claims. Importantly, Vail never produced a ski school waiver signed by Dr. Brigance. Following dismissal of her case, Dr. Brigance filed an appeal with the 10th Circuit Court of Appeals.
In its Opinion, the 10th Circuit noted that Colorado has a “permissive policy” with respect to recreational releases “that, no doubt, means some losses go uncompensated.” The 10th Circuit also indicated that the Colorado Supreme Court or General Assembly may someday prefer to change their policy to allow injured guests such as Dr. Brigance to be compensated when the ski area is negligent. However, the 10th Circuit stated “that decision is their decision to make, not ours…”
“This is a very disturbing result as these lifts become very dangerous to guests when not properly operated,” said Mr. Bloch. “Skiers and snowboarders may not even be aware that their lift ticket contains a broad waiver, in small print, on the back of the ticket. However, this waiver may completely prevent them from receiving any compensation from the ski area if an injury occurs, even when the ski area is negligent.”
Importantly, most state courts that have Skier Safety Acts (including Utah, Oregon, and Vermont) have ruled that these exculpatory waivers are “unconscionable” because they are against public policy.
Mr. Bloch is one of the only attorneys in Colorado to convince a jury to award punitive damages against Vail Resorts in a chair lift injury case (Aarons v. Vail Resorts). However, the ability to recover against a ski area for injuries resulting from negligence has been significantly reduced by the 10th Circuit’s decision in the Brigance case.