Brigance v. Vail Corporation, The
ORDER granting in part and denying in part 17 Defendant's Partial Motion to Dismiss Amended Complaint. Defendants Motion to Dismiss is GRANTED as to Claim One (Negligence) and Claim Two (Negligence Per Se) and DENIED as to all other claims; Claim One of Plaintiffs Amended Complaint 6 is DISMISSED WITH PREJUDICE; and Claim Two of Plaintiffs Amended Complaint 6 is DISMISSED WITHOUT PREJUDICE by Judge William J. Martinez on 03/11/2016.(cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-1394-WJM-NYW
VAIL SUMMIT RESORTS, INC.,
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S PARTIAL
MOTION TO DISMISS AMENDED COMPLAINT
Plaintiff Teresa Brigance (“Plaintiff”) brings this action against Defendant Vail
Summit Resorts, Inc. (“Defendant”). This matter is before the Court on Defendant’s
Motion to Dismiss Amended Complaint (“Motion”) pursuant to Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 17.) Defendant filed the Motion on August 28, 2015.
(Id.) On September 25, 2015, Plaintiff filed her Response to the Motion. (ECF No. 27.)
Defendant filed its Reply on October 13, 2015. (ECF No. 31.) For the reasons set forth
below, the Motion is granted in part and denied in part.
I. STANDARD OF REVIEW
Under Rule 12(b)(6), a party may move to dismiss a claim in a complaint for
“failure to state a claim upon which relief can be granted.” The 12(b)(6) standard
requires the Court to “assume the truth of the plaintiff’s well-pleaded factual allegations
and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the
dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to
relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and that a recovery is very remote
and unlikely.’” Id. (quoting Twombly, 550 U.S. at 556).
The following allegations are taken from Plaintiff’s Amended Complaint
(“Complaint”). (ECF No. 6.) The Court assumes these allegations to be true for
purposes of this motion.
On March 23, 2015, Plaintiff visited the Keystone ski area, which is owned and
operated by Defendant. (Id. ¶ 9.) Plaintiff participated in a ski lesson which was taught
by Megan McKinney, an employee of Defendant. (Id. ¶ 6.) Ms. McKinney instructed
Plaintiff on the procedures for getting on and off the chair lift. (Id. ¶ 7.) The chair lift
was operated by an unknown chair lift operator who was also an employee of
Defendant and whom the Court will refer to as John Doe. (Id. ¶ 26.) While unloading
from the chair lift, Plaintiff’s ski boot became wedged between the chair and the ground
at the unloading area, causing injury to Plaintiff. (Id. ¶ 8.)
Plaintiff filed this lawsuit on June 30, 2015. (ECF No. 1.) Plaintiff then filed an
Amended Complaint on July 27, 2015. (ECF No. 6.) Plaintiff asserted numerous claims
arising out of events related to the chair lift incident. (See id.) Plaintiff asserts claims
for (1) negligence, (2) negligence per se, (3) negligent supervision/training,
(4) negligence (respondeat superior), (5) negligent hiring, and (6) premises liability
pursuant to Colorado Revised Statutes § 13-21-115. (See id.)
Defendant, through its Motion, moves to dismiss all of Plaintiff’s claims except for
the premises liability claim. (ECF No. 17.) Defendant argues that Plaintiff’s claim for
negligence per se (Claim Two) should be dismissed for failure to state a claim. (Id. at
4.) Defendant further contends that Plaintiff’s claims for negligence (Claim One) and
negligence per se should be dismissed as they are preempted by the Premises Liability
Act. (Id. at 2.) Lastly, Defendant argues that Plaintiff’s claims for negligent
supervision/training, negligence (respondeat superior), and negligent hiring should be
dismissed as duplicative. (Id. at 6.) The Court will discuss these arguments in turn.
Negligence Per Se
Defendant argues that Plaintiff fails to state a claim for negligence per se. (ECF
No. 17 at 4.) “In contrast to negligence, negligence per se occurs when a defendant
violates a statute adopted for the public’s safety and the violation proximately causes
the plaintiff’s injury.” Scott v. Matlack, Inc., 39 P.3d 1160, 1166 (Colo. 2002). Plaintiff
must also show that the statute was intended to protect against the type of injury the
plaintiff suffered and that the plaintiff is a member of the group of persons the statute
was intended to protect. Id. If those requirements are met, “then the statute
conclusively establishes the defendant’s standard of care and violation of the statute is
a breach of [defendant’s] duty.” Id.
In its Motion, Defendant asserts that Plaintiff’s Amended Complaint fails to
identify any statutory standard of care that has been violated. (ECF No. 17 at 4.)
Plaintiff identifies two statutes as the basis of her negligence per se claim: the Skier
Safety Act and the Passenger Tramway Safety Act. (ECF No. 6 ¶¶ 18–19.)
As to the Skier Safety Act, certain violations of that Act do constitute negligence
per se. See Stamp v. Vail Corp., 172 P.3d 437, 443 (Colo. 2007). Under the Skier
Safety Act, “a violation by a ski area operator of any requirement of this article or any
rule or regulation promulgated by the passenger tramway safety board pursuant to
section 25-5-704(1)(a), C.R.S., shall, to the extent such violation causes injury to any
person or damage to property, constitute negligence on the part of such operator.”
Colo. Rev. Stat. § 33-44-104(2). However, Plaintiff fails to identify any requirement of
that article—the Skier Safety Act—which has been violated. Instead, Plaintiff alleges
that Defendant violated § 25-5-706(3)(d)–(e) of the Passenger Tramway Safety Act.1
Colo. Rev. Stat. § 25-5-706(3)(d)–(e). (See also ECF No. 6 ¶¶ 18, 20–21.) Section 255-706(3)(d)–(e) identifies certain situations in which the passenger tramway safety
board may take disciplinary action. However, § 25-5-706(3)(d)–(e) is not a rule or
regulation promulgated by the passenger tramway safety board and therefore Plaintiff
does not properly state a claim for negligence per se under the Skier Safety Act.
In its response to the Motion, Plaintiff argues that the Passenger Tramway Safety
Act provides a statutory standard of care independent of the Skier Safety Act.
Specifically, Plaintiff stresses that § 25-5-706(3)(d)–(e) allows for disciplinary action to
be taken if there is either “[w]illful or wanton misconduct in the operation or maintenance
of a passenger tramway” or “[o]peration of a passenger tramway while a condition exists
in the design, construction, operation, or maintenance of the passenger tramway which
Plaintiff identifies this language as coming from § 25-5-706(2)(d)–(e). However, it is
clear that Plaintiff is actually referring to § 25-5-706(3)(d)–(e), since the language Plaintiff
quotes is from that subsection of the statute.
endangers the public health, safety, or welfare, which condition was known, or
reasonably should have been known, by the area operator.”
Nevertheless, this language does not provide a statutory standard of care which
is adequate to support Plaintiff’s claim for negligence per se. This Court has previously
held that a claim for negligence per se requires a statute, “the violation of which can be
clearly established.” Hendrickson v. Doyle, ___ F. Supp. 3d ___, ___, 2015 WL
8533769, at *5 (D. Colo. Dec. 11, 2015). “In other words, the relevant statute needs to
prescribe or proscribe some relatively discrete action.” Id. The language of § 25-5706(3)(d) proscribes willful or wanton misconduct and § 25-5-706(3)(e) proscribes
something akin to negligent conduct. This is not statutory language prescribing or
proscribing some discrete action (e.g., all chairs must be two feet removed from the
ground at the unloading area). Therefore, the Court finds that Plaintiff has failed to state
a claim for negligence per se. The Court grants the Motion as to Claim Two and
dismisses Claim Two without prejudice.
Premises Liability Act Preemption
The Colorado Premises Liability Act contains the following provision:
In any civil action brought against a landowner by a person
who alleges injury occurring while on the real property of
another and by reason of the condition of such property, or
activities conducted or circumstances existing on such
property, the landowner shall be liable only as provided in
subsection (3) of this section.
Colo. Rev. Stat. § 13-21-115(2). Defendant does not dispute that it meets the statutory
definition of a “landowner”. (ECF No. 17 at n.1.) Based on its status as a landowner
and the language of § 13-21-115(2), Defendant asserts that it can only be found liable, if
at all, under the Premises Liability Act. (Id. at 4.) Therefore, Defendant argues that
Claims One and Two are preempted and must be dismissed. (Id. at 3–4.)
To support its argument, Defendant cites the Colorado Supreme Court in Vigil v.
Franklin, 103 P.3d 322 (Colo. 2004). In that case, the court held that the language of
§ 13-21-115(2) was “specific in its terms and without ambiguity,” and demonstrated that
the General Assembly intended “to completely occupy the field and supercede existing
law in the area” of premises liability. Vigil, 103 P.3d at 328. Furthermore, “[t]his
language, coupled with the precisely drawn landowner duties in subsection (3), leaves
no room for application of common law tort duties.” Id. Ultimately, the Court held that
the Premises Liability Act “abrogate[s] the common law with respect to landowner
duties.” Id. at 330.
This Court has interpreted the Colorado Supreme Court’s opinion in Vigil and has
held that “all common law claims involving landowner duties, including negligence . . .
are abrogated by the Premises Liability Act which provides the exclusive remedy.” Raup
v. Vail Summit Resorts, Inc., ___ F. Supp. 3d ___, ___, 2016 WL 374463, at *3 (D.
Colo. Feb. 1, 2016); see also Giebink v. Fischer, 709 F. Supp. 1012, 1017 (D. Colo.
1989) (holding that when a common law negligence claim is founded on negligent
maintenance of a ski area, such a claim is within the scope of the Premises Liability Act
and must be dismissed).
Claim One is a common law negligence claim. (See ECF No. 6.) Plaintiff also
alleges that her injury occurred while on the property of Defendant, the admitted
landowner. (Id.) Therefore, the claim would be preempted by the Premises Liability Act
if the alleged injury occurred “by reason of the condition of such property, or activities
conducted or circumstances existing on such property.” Colo. Rev. Stat. § 13-21115(2).
Plaintiff alleges in Claim One that her injury occurred due to Defendant’s failure
“to maintain a proper distance between the chair and the ground at the unloading point,
and/or [failure] to property operate and/or maintain the chair lift.” (ECF No. 6 ¶ 15.) The
alleged failures to maintain the conditions of the property clearly fall under the Premises
Liability Act. Furthermore, failing to properly operate the chair lift is an “activity
conducted” on the property that also falls under the Premises Liability Act. See Colo.
Rev. Stat. § 13-21-115(2); see also Raup, 2016 WL 374463, at *4 (holding that the
affirmative actions of a chair lift operator, in directing passengers to exit the lift, qualified
as activity conducted on the property for the purposes of the Premises Liability Act).
The Court thus has little difficulty in concluding that Plaintiff’s common law
negligence claim is preempted by the Premises Liability Act. Accordingly, the Court
grants the Motion as to Claim One and dismisses Claim One with prejudice. Since the
Court dismissed Plaintiff’s claim for negligence per se in the previous section, the Court
need not discuss, let alone decide, whether that claim should also be dismissed based
on Defendant’s preemption argument.2
Imputed Liability Claims
Defendant admits that both Megan McKinney and chair lift operator John Doe
were employees of Defendant. (ECF No. 17 at 7.) Defendant further admits that both
were acting within the scope of their employment at the time of Plaintiff’s incident. (Id.)
Defendant does not argue that Claims Three, Four, and Five are preempted by the
Premises Liability Act. Therefore, the Court will also not address that issue.
As such, Defendant admits that it is liable under the theory of respondeat superior for
whatever negligent acts or omissions of those two employees, if any, caused Plaintiff’s
injuries. (See id.)
Defendant argues that, because it is vicariously liable for the employees’
negligent acts, claims based on other theories of imputed liability—Claims Three and
Five—are duplicative and should be dismissed.3 (Id. at 7–8.) Defendant cites two trial
court decisions from Colorado state court in which those courts dismissed claims based
on theories of imputed liability that they found to be duplicative. (See id.) However,
Defendant provides no state appellate precedential support for its position. (See id.)
Moreover, Defendant fails to acknowledge that “[p]laintiffs may seek duplicative
relief under federal and state statutes and common [law].” Big Cats of Serenity Springs,
Inc. v. Vilsack, 84 F. Supp. 3d 1179, 1198 (D. Colo. 2015). The pursuit of alternative
claims for similar relief is expressly permitted by the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or
defense alternatively or hypothetically, either in a single count or defense or in separate
ones.”). Plaintiff may not recover for the same injury under multiple theories of imputed
liability, and at some point Plaintiff may have to choose between her theories. However,
that is not a reason to dismiss any of Plaintiff’s claims at this stage. Accordingly, the
In the heading for its third argument in the Motion, Defendant asserts that Plaintiff’s
fourth claim for negligence (respondeat superior) should also be dismissed. (ECF No. 17 at 6,
8.) However, Defendant, in its discussion, does not argue that Claim Four should be dismissed.
(Id. at 6–8.) Defendant’s argument in that section is limited to arguing that Claims Three and
Five should be dismissed because they are duplicative of Claim Four. (See id.)
Court denies Defendant’s Motion as to Claims Three, Four, and Five.4
For the reasons set forth above, the Court ORDERS as follows:
Defendant’s Partial Motion to Dismiss Amended Complaint (ECF No. 17) is
GRANTED IN PART and DENIED IN PART;
Defendant’s Motion to Dismiss is GRANTED as to Claim One (Negligence) and
Claim Two (Negligence Per Se) and DENIED as to all other claims;
Claim One of Plaintiff’s Amended Complaint (ECF No. 6) is DISMISSED WITH
Claim Two of Plaintiff’s Amended Complaint (ECF No. 6) is DISMISSED
Dated this 11th day of March, 2016.
BY THE COURT:
William J. Martínez
United States District Judge
In its reply, Defendant argues that Plaintiff’s claim for negligent hiring should also be
dismissed on the grounds that Plaintiff failed to plead “what knowledge [Defendant] had or
should have had at the time its employees were hired.” (ECF No. 31 at 6.) This argument was
not made in the Motion itself and therefore the Court need not and will not consider it.
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