Injured Ski Patron Claims “No Consideration” when Purchase was Online and Waiver Executed Two Days Later

By Doyice Cotten

Ms. Patterson bought a ski lift ticket online, paying $57. Two days later she picked up her ticket at the resort. The front of this lift ticket contained an adhesive sticker, designed to be removed and adhered to a wicket on the ticket holder’s clothing, on which Ms. Patterson’s name, the ticket type, and a bar code were printed. The back of the lift ticket, like all lift tickets issued by Monarch Mountain on March 20, 2014, contained the word “WARNING,” followed by seven paragraphs printed in a small font. The first and fourth paragraphs read as follows:

Under Colorado law, a skier1 assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities. …

In consideration and exchange for allowing Holder to use the ski area facilities, Holder agrees to ASSUME ALL RISKS, whether or not described above, known or unknown, inherent or otherwise, associated with the Holder’s participation in the ACTIVITY. Additionally, Holder agrees NOT TO SUE Monarch Mountain, PowderMonarch LLC, its affiliated organizations and companies, the United States Forest Service, and all of their respective insurance carriers, agents, employees, representatives, assignees, officers, directors, and shareholders (each hereinafter a  “RELEASED PARTY”). Holder agrees to HOLD HARMLESS AND RELEASE any RELEASED PARTYfrom ANY AND ALL liability and/or claims for injury or death to persons or damage to property arising from Holder’s engagement in the ACTIVITY, including those claims based on any RELEASED PARTY’s alleged or actual NEGLIGENCE or BREACH of any express or implied WARRANTY.

Monarch Mountain’s lift tickets are designed so the ticket holder must “interact” with this “WARNING” side by peeling it away from the adhesive front of the ticket before the ticket may be used to access the resort’s ski facilities. Ms. Patterson claimed that she did not read the back of the ticket when she did this.

The Injury

Ms. Patterson at some point during the day fell when exiting from a chairlift and was injured when the next skier exited the lift and collided with her. She filed suit alleging negligence on the part of PowderMonarch. The district court granted summary judgment based on the waiver and the Colorado premises liability statute.

Patterson appealed arguing  (Patterson v. Powdermonarch, LLC, 2019)

  • the addition of a release of liability two days after Ms. Patterson paid for her ticket constituted a contract modification for which there was no additional consideration, and
  • the exculpatory agreement is invalid under Colorado law because 1) it was neither fairly entered into nor 2) expressed in clear and unambiguous language.

Consideration: Same Transaction or Contract Modification

The court held that the fact that the waiver was executed two days after the ticket was purchased online was irrelevant. The court said that this was better viewed as part of the same transaction, rather than as a subsequent contract modification, citing previous cases where the delay was a matter of minutes in one case and a matter of months in another. Additionally, the court was persuaded based on the nature and circumstances of the transaction that the payment and exculpatory agreement were part of the same transaction and that no additional consideration was required. The federal court noted that Colorado has adopted a “relatively permissible public policy toward recreational releases … We accordingly hold that no additional consideration was required for the lift ticket’s exculpatory language to be enforceable.”

Fairly Entered Into

The court then turned to Plaintiffs’ argument that the lift ticket’s exculpatory agreement is invalid under Colorado law because it was not fairly entered into.  It noted that Colorado courts consider four factors to determine whether an exculpatory agreement is valid: “(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.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). It noted that the first two factors involve public policy and are generally inapplicable to businesses engaged in recreational activities. The court said that “A contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” The court stated that individuals engaged in recreational activities are generally expected to read materials like these and that Colorado courts have consistently found such waivers to provide “fair and full warning.”

Patterson argued that the waiver in this case was not fairly entered into because her payment of $57 was nonrefundable and thus she was not “free to walk away.” The court cited other cases showing that

… individual engaging in a recreational activity, unlike an individual who seeks to obtain housing or other necessities of life, is not constrained to participate and accordingly may opt out of an activity if he is unwilling to accept exculpatory terms. (Heil Valley Ranch, Inc. v. Simkin,Colo. 1989)

The plaintiff “did not cite to a single Colorado case—or federal case applying Colorado law—that would support Plaintiffs’ interpretation of ‘free to walk away’ to mean free from all costs, rather than free from compulsion or coercion.” Based on prior Colorado case law, the appellate court affirmed the district court’s holding that the third Jones factor has been satisfied in this case.

Clear and unambiguous Language

Plaintiff raised several arguments as to why the language is not clear and unambiguous.

  • the agreement does not define the “ACTIVITY” to which the release applies;
  • the agreement is densely printed in tiny font in red ink …, rendering the entire document confusing and indecipherable without magnification;
  • it is replete with legal jargon which is confusing and indecipherable to a lay person; and
  • [t]he focus and title of the alleged exculpatory agreement is a ‘warning’ concerning the dangers of skiing, unrelated to lift operator duties or agreements to release legal rights, and therefore does not clearly and unambiguously state the intent of the parties to release legal claims.

The court was not persuaded by any of these arguments. The court pointed out that on the lift ticket the holder agrees to ASSUME ALL RISKS; that the print size is small, but is readable; that even with legal jargon, the reader is put on notice; and that it applied to negligent operation of the resort. As a result, the court stated that the waiver was clear and unambiguously applies to the claims at issue in this case.

Court Ruling

The waiver met all of the criteria specified in Jones; thus, under Colorado law, the waiver is valid and enforceable.

Photo Credit: Thanks to Jonas Bengtsson via Flickr.