Schlumbrecht-Muniz v. Steamboat Ski and Resort Corporation et al

Filing 58

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT: The Defendant's Motion for Summary Judgment 41 is DENIED IN PART AND GRANTED IN PART. The Motion is granted with respect to the Plaintiff's claim of negligence per se for violation of Colo.Rev.Stat. § 33-44-107(7). The Motion is denied in all other respects. The only claim remaining in this case to be tried is the Plaintff's claim for common-law negligence. The parties are directe d to begin preparation of a Proposed Final Pretrial Order, in accordance with the previously issued Trial Preparation Order (#23), and shall jointly contact chambers within 14 days of the date of this order for the purpose of scheduling a final pretrial conference. by Chief Judge Marcia S. Krieger on 9/21/15.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 14-cv-00191-MSK-NYW
LINDA SCHLUMBRECHT-MUNIZ, M.D.,
Plaintiff,
v.
STEAMBOAT SKI AND RESORT CORPORATION,
Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court on the Defendant’s Motion for Summary
Judgment (#41), the Plaintiff’s Response (#45), and the Defendant’s Reply (#47).
I. Material Facts
The Court has reviewed the record and submissions of the parties and finds the following
facts to be undisputed, or if disputed, resolves them most favorably to the non-movant.
The Plaintiff Linda Schlumbrecht-Muniz, M.D., was a member of the Sarasota, Florida
Ski Team. She travelled to Steamboat Springs Ski Resort with the ski team to participate in
NASTAR ski races.1 Prior to participating in the ski races, Dr. Muniz registered with NASTAR
by filling out and signing a registration form that contained an exculpatory clause and paid a

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According to the NASTAR.com website, NASTAR stands for NAtional STAndard Race and is
a national ski race program. Participants compete within their age and gender groups based on a
standardized scoring program (a handicap system), which provides them the ability to compete
and compare scores regardless of when and where they race. The NASTAR ski program has
several sponsors, including Nature Valley and the U.S. Ski Team.
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registration fee. She also purchased a lift ticket from the Defendant, Steamboat Ski and Resort
Corporation.
On January 24, 2012, Dr. Muniz was present to participate in the ski races and to ski
recreationally. The race course was set up on the Bashor Trail, which Dr. Muniz accessed via
the Bashor Lift. After finishing her second race and exiting the race course, she skied down the
Bashor Trail and headed toward the lift. She had intended to ski past the lift to a picnic area to
meet up with other racers, but on her way Dr. Muniz collided with a snowmobile that was parked
near the lift. Dr. Muniz sustained serious injuries as a result of the collision.
Dr. Muniz asserts two claims against the Defendant, Steamboat: (1) common-law
negligence by the Defendant’s employee in parking the snowmobile in a dangerous, high-traffic
area,2 and (2) negligence per se under the Colorado Ski Safety Act (SSA), Colo. Rev. Stat. § 3344-107(7),3 by failing to mark and pad the snowmobile.
The Defendant moves for summary judgment on both claims. It argues that (1) both
claims are barred by the exculpatory clause contained in the NASTAR participation agreement;
(2) the common-law negligence claim is barred as a matter of law by Colo. Rev. Stat. § 33-44112; and (3) the claim of negligence per se for violation of the SSA fails because the statute is
inapplicable and, if it is applicable, Dr. Muniz cannot present sufficient evidence for a prima
facie claim.
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Although the Amended Complaint (#7) lists a third claim for relief titled “Respondeat
Superior,” the Court recognizes that the Plaintiff simply seeks to hold the Defendant liable for
the alleged negligent conduct of its employee.
3

The Amended Complaint does not specify which section of the SSA the Defendant allegedly
violated. In response to the Defendant's Motion to Dismiss (#14), the Plaintiff asserted that the
Defendant had violated C.R.S. § 33-44-107(7) and/or § 33-44-108(3). The Court found,
however, that the complaint did not allege sufficient facts to state a claim for violation of C.R.S.
§ 33-44-108(3) and dismissed the Plaintiff's claim of negligence per se for violation of that
section. See Docket #50. Thus, the remaining claim for negligence per se pertains only to an
alleged violation of C.R.S. § 33-44-107(7).
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II. Standard of Review
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine dispute as to any material fact and
a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs
which facts are material and what issues must be determined. It also specifies the elements that
must be proved for a given claim or defense, sets the standard of proof, and identifies the party
with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is “genuine” and summary judgment is precluded if the evidence presented in support of
and in opposition to the motion is so contradictory that, if presented at trial, a judgment could
enter for either party. See Anderson, 477 U.S. at 248. When considering a motion for summary
judgment, the Court views all evidence in the light most favorable to the non-moving party,
thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213
(10th Cir. 2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the
responding party must present sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine
dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material

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fact, no trial is required. The Court then applies the law to the undisputed facts and enters
judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.
If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent
evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
III. Analysis
A. Exculpatory Clause
The Defendant first argues that it is entitled to summary judgment on both of Dr. Muniz’s
claims based on the exculpatory agreement contained in the NASTAR participation agreement
signed by Dr. Muniz. This is an affirmative defense, on which the Defendant bears the burden of
proof.
In relevant part, the agreement provides:
In exchange for being permitted to participate in NASTAR events
(the “Event”), I agree to the following:
....
I acknowledge that participating in the Event poses a RISK OF
PERSONAL INJURY to me and damage to my property, and I
knowingly and voluntarily ASSUME ALL RISKS associated with
my involvement in the Event and the risk of injury caused by the
condition of any property, facilities, or equipment used during the
Event, whether foreseeable or unforeseeable. I hereby release and
agree not to sue NASTAR, Bonnier Mountain Group, Bonnier
Active Media, Inc., the applicable sponsoring ski area where the
Event is held, and the Event sponsors, along with their parent
companies, affiliates, successors, assigns, employees, agents, or
other volunteers, and insurers of any of the above (collectively, the
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“Releasees”) for any injuries, losses, damages, claims, liabilities,
or expenses that are caused or alleged to be caused by the
Releasees, their negligent or reckless acts or omissions, hazards
that are normally associated with participating in the Event, or the
condition of the property, facilities, or equipment used for the
Event.
....
The Defendant argues that the exculpatory clause is valid and enforceable under the four-factor
test set forth in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981), and thus, Dr. Muniz’s claims
are barred as a matter of law.
The determination of the sufficiency and validity of an exculpatory agreement is a
question of law for the Court. Jones, 623 P.2d at 376. Generally, exculpatory agreements are
recognized under Colorado law, but are construed narrowly and “closely scrutinized” to make
sure the agreement was fairly entered into and that the intention of the parties is expressed in
clear and unambiguous language. Id. In addition, the terms of exculpatory agreements are
construed strictly against the drafter. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo.
1990). In determining the validity of an exculpatory agreement, Jones requires the Court to
consider the following factors: (1) whether the service provided involves a duty to the public; (2)
the nature of the service provided; (3) whether the agreement was fairly entered into; and (4)
whether the agreement is clear and unambiguous. Jones, 623 P.2d at 376; see also B& B Livery,
Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998).
Dr. Muniz implicitly concedes that the agreement satisfies the first three criteria,
challenging only whether it is clear and unambiguous. She argues that the agreement is
ambiguous because its scope is unclear. Specifically, she argues that the agreement does not
specify whether the waiver of liability extends to claims for injuries that occur outside of her

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participation in “the Event,” i.e. the NASTAR ski race.4 Dr. Muniz contends that the more
reasonable interpretation of the agreement is that it is limited to racing activities during the
NASTAR ski event, and that because the collision occurred outside of the race course there is no
enforceable waiver. The Defendant responds that the agreement plainly covers injuries that
occur outside of the ski race. The Defendant argues that Dr. Muniz’s claims clearly fall within
the agreement because she alleges that the Defendant “caused” her injuries and because she was
skiing on the trail used to access the race course.
The parties’ disagreement highlights a difference between clarity in the agreement’s
expression of intent to extinguish liability and clarity in the scope of the conduct or claims
affected. The Jones v. Dressel test focuses on the clarity of the parties’ intent to extinguish
liability. For that purpose, Colorado courts examine the actual language of the agreement for
legal jargon, length and complication, and any likelihood of confusion or failure of a party to
recognize the full extent of the release provisions. See Heil Valley Ranch v. Simkin, 784 P.2d
781, 785 (Colo. 1989); Chadwick v. Colt Ross Outfitters, Inc., 10 P.3d 465, 467 (Colo. 2004).
Specific terms such as “negligence” or “breach of warranty” are not required to shield a party
from liability. What matters is whether the intent of the parties was to extinguish liability was
clearly and unambiguously expressed. Heil Valley Ranch, 784 P.2d at 785.
With this focus, the Court finds that the agreement clearly and unambiguously expresses
the parties’ intent to release the Defendant from liability for certain claims. The agreement is not
particularly long, a total of seven paragraphs, nor is it riddled with confusing language or legal
4

Although unclear, it appears that Dr. Muniz also argues that the agreement is inapplicable
because the Defendant was not a party to the agreement. The Court is unpersuaded. It is
undisputed that the ski race was being held at the Defendant’s ski resort. The plain terms of the
exculpatory agreement make clear that the “Releasees” include “the applicable sponsoring area
where the Event is held” and its “employees.” Dr. Muniz makes no argument that the waiver
could not, by its terms, include the Defendant.
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jargon. Stripped down to its operative terms, the release/waiver provides that a signatory
releases the Defendant from liability “for any injuries . . . that are caused or alleged to be caused
by [the Defendant], [its] negligent or reckless acts or omissions, hazards that are normally
associated with participating in the Event, or the condition of the property, facilities, or
equipment used for the Event.” Clearly, such language expresses the intent to categorically bar
claims arising from participation in “the Event.” In the context of the facts, here, the Court
understands that “the Event” to be the ski race.
What is more difficult to interpret is what the parties intended by the language “normally
associated with participating the Event.” This arguably defines the geographic and temporal
scope of the release/waiver. This phrase, when applied to claims brought against the “sponsoring
ski area where the Event is held,” might be understood to bar all claims for injuries to a race
participant based on any injury that occurred anywhere at the sponsoring ski area before, after, or
during the time of the race. Alternatively, it could be so narrow as to be limited to injuries that
occur only on the race course during the race. Because such language is subject to differing
interpretations, it is ambiguous.
Because the Defendant relies on the exculpatory agreement as an affirmative defense, it
has the burden of proof to show that it bars Dr. Muniz’s claims. But the Defendant has presented
no evidence of the parties’ intent as to the scope of the agreement or law that categorically
governs its interpretation. As a consequence, the Defendant’s Motion for Summary Judgment on
that basis is denied. At this juncture, the Court could enter summary judgment in favor of Dr.
Muniz on this affirmative defense, but in light of need for a trial on other issues, the Court
declines to do so.

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B. Negligence
The Defendant contends that Dr. Muniz’s claim for negligence is barred as a matter of
law by the Ski Safety Act, § 33-44-112. This, too, is an affirmative defense on which the
Defendant bears the burden of proof.
The Ski Safety Act, § 33-44-112 provides, in relevant part, that “no skier may make any
claim against or recover from any ski area operator” for injuries resulting from any of the
“inherent dangers and risks of skiing.”5 The Defendant argues that a collision with a
snowmobile is an inherent danger and risk of skiing.
The Defendant has raised this argument on at least two prior occasions — in its Motion to
Dismiss (#14) and its Motion for Reconsideration (#51). On both occasions, the Court rejected
the argument, concluding that whether a collision with a snowmobile is an inherent danger or
risk of skiing is not necessarily a question of law because what is an inherent danger or risk of
skiing is not limited to the circumstances specifically enumerated in the SSA. See Docket Nos.
50, 54. Having extensively addressed this legal argument on two previous occasions, the Court
declines to address it for a third time. Thus, the Court finds that the Defendant is not entitled to
summary judgment on the claim for negligence.
C. Violation of the Colorado Ski Safety Act
Finally, the Defendant seeks a determination that Dr. Muniz cannot establish that it
violated Colorado Ski Safety Act § 33-44-107(7). The SSA identifies several specific duties that
ski area operators owe to skiers. See C.R.S. §§ 33-44-106 to -108. A breach of these duties
5

Section 33-44-103(3.5) defines “inherent dangers and risks of skiing” to include “those dangers
or conditions that are part of the sport of skiing, including changing weather conditions; snow
conditions as they exist or may change . . . ; surface or subsurface conditions . . . ; impact with
lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made
structures and their components; variations in steepness or terrain, . . . ; collisions with other
skiers; and the failure of skiers to ski within their own abilities.”
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constitutes negligence. C.R.S. § 33-44-104. As pertinent here, § 33-44-107(7) of the SSA
requires a ski area operator to mark “hydrants, water pipes, and all other man-made structures on
slopes and trails which are not readily visible to skiers under conditions of ordinary visibility
from a distance of one hundred feet” with a marker (such as a flag or sign), and to “adequately
and appropriately cover such obstructions with a shock-absorbent material that will lessen
injuries.” Section 33-44-103(3) defines “conditions of ordinary visibility” to mean “daylight . . .
in nonprecipitating weather.” Thus, as a threshold matter, to prove her claim Dr. Muniz must
establish that she collided with (1) a man-made structure that (2) was not visible from a distance
of 100 feet in daylight and nonprecipitating weather and (3) was not marked or padded as
required by § 107(7). The Defendant contends that Dr. Muniz cannot establish the first two
elements.
First, the Defendant argues that § 107(7), which applies to man-made structures, cannot
apply to snowmobiles as a matter of law because the SSA contains a more specific provision
directed at snowmobiles, C.R.S. § 33-44-108(3). The Defendant made this same argument in its
Motion to Dismiss (#14), which the Court addressed and rejected. See Docket #50. The Court
concluded that the statutes were not so inconsistent as to be irreconcilable and therefore it
declined to conclude that § 107(7) was inapplicable to snowmobiles as a matter of law. The
Court does not revisit its prior ruling here.
However, the Defendant presents an alternative argument as to why Dr. Muniz cannot
prevail on her claim of negligence per se. Assuming that a snowmobile is deemed to be a manmade structure for purposes of § 107(7), Dr. Muniz must present evidence that the snowmobile
was not visible from a distance of 100 feet under conditions of ordinary visibility. As noted,
"conditions of ordinary visibility" are defined as "daylight . . . in nonprecipitating weather."

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Dr. Muniz has failed to do so. Dr. Muniz relies solely on her own affidavit, in which she states
that the snowmobile was not visible from 100 feet and was not visible to her until moments
before she collided with it. She states that at the time of the collision, it was lightly snowing and
the visibility was moderate to poor. Because the conditions Dr. Muniz describes do not reflect
nonprecipitating weather, the evidence is insufficient to establish a violation of § 107(7).
Accordingly, the Defendant is entitled to summary judgment on the claim for negligence per se.
IV. Conclusion
For the forgoing reasons, the Defendant’s Motion for Summary Judgment (#41) is
DENIED IN PART AND GRANTED IN PART. The Motion is granted with respect to the
Plaintiff’s claim of negligence per se for violation of Colo. Rev. Stat. § 33-44-107(7). The
Motion is denied in all other respects. The only claim remaining in this case to be tried is the
Plaintiff’s claim for common-law negligence.
The parties are directed to begin preparation of a Proposed Final Pretrial Order, in
accordance with the previously issued Trial Preparation Order (#23), and shall jointly contact
chambers within 14 days of the date of this order for the purpose of scheduling a final pretrial
conference.
Dated this 21st day of September, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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