Mountain Law: How many signs does it take?
The Colorado Court of Appeals recently clarified provisions of the Ski Safety Act concerning signage. This article discusses the decision, which should be of interest to ski enthusiasts at our local resorts.
The decision pertained to two unrelated incidents combined on appeal because they were substantially alike. In both cases, skiers at Beaver Creek skied off the Strawberry Park Express Lift through a glade of trees, crossed a catwalk known – ironically – as “Overshot” and continued through the trees (out of bounds) until they skied right off a 19-foot retaining wall onto a paved access road. The extent of the skiers’ injuries was not indicated in the decision. Both skiers ultimately filed suit against Vail Resorts, lost at the trial court level, and appealed. The dispute has to do with whether the ski area boundary along Overshot had proper signage.
The Ski Safety Act sets forth the responsibilities under Colorado law of ski area operators such as Vail Resorts. If ski area operators comply with the statute, they are immune from liability. However, they can be liable if they fail to comply with the statute. With respect to signage, the Court of Appeals found that the Act does not require a certain number, specific placement, or specific distance between ski area boundary signs. It simply requires that the ski area boundary must be reasonably marked in a fashion readily visible to skiers.
In this case, there were nine ski area boundary signs facing uphill at the point where the skiers crossed Overshot. These signs were located from 24 to 51 yards apart over a distance of 303 yards. The boundary was roped uphill and downhill of where the skiers crossed Overshot, but there was a 72 yard gap in the rope where they crossed. They crossed approximately 56 yards downhill from a sign and 16 yards uphill from the end of the nearest rope. They testified that they did not know the area past Overshot was out of bounds and they did not see any of the signage or ropes. A safety expert testified in a deposition that the signs uphill of the crossing point were unreadable and that the signs downhill were hidden behind trees. A responding member of the ski patrol testified in a deposition that he “could see how this happened” and that he did not think the skiers were at fault.
A trial court is permitted to decide a case without holding a trial if it determines the pertinent facts cannot reasonably be disputed. In this case, the trial court entered judgment in favor of Vail Resorts without trial on the basis that the nine boundary signs complied with the Act in that they were “in a fashion readily visible to skiers under conditions of normal visibility.” The Court of Appeals reversed the decision of the trial court and determined that the sufficiency of the signage was a factual dispute that needed to be determined following presentation of evidence at trial. It sent the case back for trial.
The Court of Appeals further found that (1) skiers have no duty to locate signage unless the signage complies with the Act (which was the dispute in the case); and (2) a liability waiver in the season pass application does not relieve a ski operator’s liability for failure to comply with the Act.
This case shows the need for ski operators to constantly review and improve their signage to protect skiers, but it also underscores how careful skiers need to be when departing established ski trails into unfamiliar areas. If the parties don’t settle, there will be a trial to determine whether the signage was sufficient in this case (and, accordingly, whether Vail Resorts is liable to the skiers).
Noah Klug is principal of The Klug Law Firm, LLC, a general law practice in Summit County emphasizing real estate and business law. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.
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