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Patterson v. Powdermonarch, LLC

United States Court of Appeals, Tenth Circuit

June 10, 2019

BRENDA M. PATTERSON; TIMOTHY WELKER, Plaintiffs - Appellants,
v.
POWDERMONARCH, LLC, a Colorado limited liability company, Defendant-Appellee.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:16-CV-00411-WYD-NYW)

          Douglas P. Dowd of Dowd & Dowd, P.C., St. Louis, Missouri, for Plaintiffs-Appellants.

          Brian A. Birenbach (Kimberly A. Viergever with him on the brief) of The Rietz Law Firm, L.L.C., Dillon, Colorado, for Defendant-Appellee.

          Before HOLMES, McKAY, and MORITZ, Circuit Judges.

          MCKAY, CIRCUIT JUDGE.

         Plaintiff Brenda Patterson and her husband, Plaintiff Timothy Welker, appeal from the district court's entry of summary judgment in favor of Defendant PowderMonarch, LLC, on their claims of negligence and loss of consortium based on injuries Ms. Patterson allegedly sustained at Defendant's ski resort. Because the district court correctly held that these claims are barred by an exculpatory agreement included on Ms. Patterson's ski lift ticket, we affirm.

         I.

         On March 18, 2014, Ms. Patterson made an online payment of $57.00 for a ski lift ticket to use at Monarch Mountain, a ski resort owned and operated by Defendant PowderMonarch. A lift ticket is required for any non-season pass holder at Monarch Mountain to use the resort's ski facilities, such as trails and lifts. After paying for her lift ticket, Ms. Patterson received an email confirmation, which thanked her for her "reservation" and informed her that there would be "NO REFUNDS for any cancellations under 48 hours." (Appellants' App. at 106-07.) Ms. Patterson testified that she could not print her lift ticket at home, but "had to pick it up when [she] got there." (Id. at 116.)

         On March 20, 2014, Ms. Patterson went to Monarch Mountain with her husband and other family members. At the resort, either she or her husband physically picked up the ticket she had paid for two days earlier. 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. (Id. at 81.) The first and fourth paragraphs read as follows:

Under Colorado law, a skier[1] 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 PARTY from 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.

(Id.)

         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 testified that she placed the lift ticket on her ...


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