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Colorado Supreme Court revives dad’s negligence claim against ski resort over daughter’s lift accident

Michael Miller sued Crested Butte Mountain Resort in 2022 after his daughter became paralyzed when she fell 30 feet from a ski lift.

DENVER (CN) — The Colorado Supreme Court on Monday found a liability waiver does not absolve a ski resort from illegal acts of negligence, reviving a father’s claim against Crested Butte Mountain Resort over his daughter’s paralyzing fall from a chairlift in 2022.

“After determining that that claim states a viable negligence per se claim, we further conclude, as a matter of first impression, that Crested Butte may not absolve itself, by way of private release agreements, of liability for violations of the statutory and regulatory duties on which Miller's negligence per se claim is based,” wrote Colorado Supreme Court Justice Richard Gabriel, an appointee of Governor John Hickenlooper, in a 24-page opinion.

Michael Miller and his 16-year-old daughter Annie decided to ski Crested Butte while visiting the Centennial State from Muskogee, Oklahoma, on a church trip. Vail Resorts owns Crested Butte, which operates on the Epic Pass.

During their second day of skiing, Annie struggled to get on the Paradise lift. Although people shouted at the operator to stop the lift, it continued upward, carrying Annie hanging onto her father’s hands, 30-feet over the hardpacked snow. She fell and her injuries resulted in permanent paralysis from the waist down.

Miller sued in Broomfield County District Court in 2022, claiming violations of duty of care, negligence and gross negligence. Looking to the resort’s liability waiver, a state judge dismissed two of Miller’s three claims in April 2023, leaving intact only the highest bar of gross negligence.

The Colorado Supreme Court analyzed two theories of negligence: negligence per se and negligence-highest duty. Under the first, negligence means violating duties required by law.

For the second theory of negligence, attorney Bruce Braley argued on behalf of the Miller family that ski resorts have a heightened duty of care under Colorado law, particularly when it comes to maintaining and operating lifts.

Braley did not respond to a request for comment prior to publication.

While the high court found the ski resort’s liability waiver did not protect it from negligence per se violations as required by the law, the waiver did shield the resort from negligence of the highest duty, since the Epic Pass specifically disclosed the risk of ski lift injury.

Colorado Ski Country USA estimates 13 million people visited Colorado last year to ride the snow-covered mountains. This, however, was the first case to pose the question to the state supreme court of whether a resort’s liability waiver protected it from negligence claims brought under the Ski Safety Act and the Passenger Tramway Safety Act.

Attorney Michael Hoffman, who practices with the Denver office of Bryan Cave, represented Crested Butte. He did not immediately return a request for comment on the opinion.

In a parenthetical addition, Justice Gabriel wrote that the court withholds an “opinion on the ultimate merits of the claim.” The case is currently slated for a jury trial in September.

Chief Justice Brian Boatright, Justice William Hood and Justice Carlos Samour, all Hickenlooper appointees, signed onto the opinion alongside Governor Jared Polis-appointed Justice Maria Berkenkotter.

Hickenlooper-appointed Justice Melissa Hart penned a partial dissent, agreeing with the enforcement of the ski resort waiver on the highest duty claim, but arguing in favor of dismissing the per se negligence claim, since both are two sides of the same coin. Governor Bill Ritter-appointed Justice Monica Marquez joined Hart on the dissent.

“Miller’s waiver should operate to bar his ‘negligence per se’ claim — that is, a negligence claim premised on a standard of care established in statute or regulation — just as it bars his ordinary negligence claim,” Marquez wrote. “A claim for negligence premised on a statutory or a regulatory standard of care is still just a claim of negligence.”

In the 10-page dissent, Marquez wrote that Colorado law has long erred on the side of the ski industry.

The three governors who appointed the entirety of the current Colorado Supreme Court bench were all Democrats.

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