BRENDA M. PATTERSON; TIMOTHY WELKER, Plaintiffs - Appellants,
POWDERMONARCH, LLC, a Colorado limited liability company, Defendant-Appellee.
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.
A. Birenbach (Kimberly A. Viergever with him on the brief) of
The Rietz Law Firm, L.L.C., Dillon, Colorado, for
HOLMES, McKAY, and MORITZ, Circuit Judges.
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.
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.)
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 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.
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