Groups Liable Despite Waiver
Ski Case May Affect Other Sports Entities
The Denver Post
June 25, 2002
Section: A , Page: A-01
By Kirk Mitchell, Denver Post Staff Writer
Liability waivers signed by parents do not protect ski resorts from lawsuits when children are injured because of negligence, the Colorado Supreme Court ruled Monday in a case that could reach far beyond the ski industry.
The ruling will have broad impact on recreational businesses and clubs that require parents to sign indemnity waivers, said James Chalat, an attorney who specializes in recreation industry law. Now, a business or club could still be liable when a child is hurt because of negligence even if a parent signs a liability waiver. "It is very far-reaching, but so were the releases that were being spread around the state by the recreation and insurance industry," Chalat said. "You can't take the kids to a birthday party at the recreation center without filing a release."
But Peter Rietz, an attorney for the U.S. Ski Association, said the decision will have limited impact because indemnification releases for minors have historically not been enforceable in Colorado courts. "This does not really change things," he said.
Monday's decision involves David Cooper, who crashed into a tree while skiing in 1995 and was blinded at age 17. His mother had signed a liability waiver, but the Supreme Court ruled that Colorado public policy offers "significant protections" for minors, which means a parent or guardian can't sign away a child's ability to sue for negligence.
Rietz predicted that most sports clubs and recreation businesses will continue to require parents to sign waivers to warn them of potential risks of skiing or playing football.
"I think that is healthy," he said. Chalat, however, said that the way the releases are written, a ski resort would not be liable if a chairlift was mishandled and dropped children to the ground and seriously injured them.
The Supreme Court decision will affect businesses that offer river rafting, skiing and mountain climbing experiences, he said. "That's a big component of the Colorado tourism industry," Chalat said. It will also affect all sports clubs including youth league soccer, baseball, hockey and football teams, Chalat said. All sports entities that require parents to sign a liability waiver for their children are affected, he said. But he added that youth sports negligence cases are extremely rare. A plaintiff would have to prove that a volunteer caused a child's injury by inappropriately directing team members to play rough, for example.
Public schools and coaches have immunity against negligence claims, but in limited cases, the Supreme Court decision could affect them as well, Chalat said. Randy McCall, athletic director of the Cherry Creek School District, said he had not seen the court decision and could not comment. Cooper had been a member of the Aspen Valley Ski Club for nine years when his accident left him blind and caused other injuries. He filed a lawsuit against the Aspen Skiing Co., the Aspen Valley Ski Club and the U.S. Ski Association.
The trial court ruled that Cooper was barred from filing a claim because his parents had signed a liability waiver. The waiver said that the club was not liable for any injury even when it was caused by carelessness or negligence. The lower-court decision was upheld on appeal. The Supreme Court ruled, however, that in some instances the care of a child outweighs contractual obligations. The high court's decision was based on its understanding of the state legislature's commitment to safeguarding children.
The court could be convinced otherwise if legislators chose a different stance, the court ruled. The state Supreme Court ruling orders that Cooper's case be returned to state district court for a trial. A jury could still decide that the defendants were not negligent and therefore not liable for Cooper's injuries, Chalat said.
The decision should help rather than harm Colorado's tourist industry, he said. Visitors will know that businesses will be held responsible for their actions and therefore will be more careful, he said. "It will make Colorado a much safer place to ski," Chalat said. Denver Post staff writer Monte Whaley contributed to this report.
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