Raup v. Vail Summit Resorts

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 8, 2018
• Docket: 17-1039
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 8, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court CAROLYN S. RAUP,

Plaintiff - Appellant,

v.

VAIL SUMMIT RESORTS, INC., No. 17-1039 (D.C. No. 1:15-CV-00641-WYD-NYW) Defendant - Appellee. (D. Colo.)

------------------------------

COLORADO TRIAL LAWYERS ASSOCIATION,

Amicus Curiae. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges. _________________________________

Carolyn Raup was badly injured upon dismounting a chairlift operated by Vail

Summit Resorts, Inc. She sued Vail in the United States District Court for the District of

Colorado under diversity jurisdiction, see 28 U.S.C. § 1332, asserting a negligence claim

and a claim under Colorado’s Premises Liability Act (PLA), Colo. Rev. Stat. § 13-21-

115. The district court dismissed the negligence claim as preempted by the PLA and

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. granted summary judgment to Vail on the PLA claim as barred by a waiver on the lift

ticket. Raup appeals only the dismissal of the PLA claim, asserting that the waiver was

unenforceable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Under

Colorado’s common-law test for waiver enforceability, the release was “fairly entered

into” and “expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d

370, 376 (Colo. 1981). And the PLA does not preempt the common-law defense.

I. BACKGROUND

Vail operates the “Fun Park” in Breckenridge, Colorado. The park’s “Colorado

SuperChair” provides chairlift rides. Raup visited the Fun Park in June 2013 with

Elizabeth Raup (her daughter) and Jason Pyle (Elizabeth’s husband). Elizabeth and Pyle

bought Raup a SuperChair ticket.

The bottom of the ticket’s face states, “IMPORTANT WARNING ON

REVERSE.” Fed. R. App. P. 28(j) Notice of Supplemental Authority Ex. 1 (Oct. 2,

2017) (referred to hereafter as “Lift Ticket”). On the top of the backside is printed,

“WARNING,” followed by several bullet points purporting to limit Vail’s liability for

ticketholder injuries:

 The Holder of this ticket understands and VOLUNTARILY ASSUMES ALL RISKS associated with visiting the Fun Park, including the risks of property damage, personal injury, and death.

 The Holder agrees to not bring any claim or lawsuit against the Fun Park or its affiliates that could arise from the negligence of the Holder or others, including the negligence of the Fun Park operator or its employees, or from incidents occurring in connection with the natural environment or reasons outside the

2 Fun Park’s or its affiliates’ control.

 The Holder understands that many activities in the Fun Park are self-directed, and that property damage, injury or death to Holder or others may occur as a result of the Holder’s own decisions and actions in these activities.

...

 The Fun Park and its affiliates affirmatively deny all liability for any property damage, injury, or death occurring as a result of or related to the Holder’s visit to the Fun Park, and the Holder, by use of this ticket, hereby understands and accepts such denial of liability and agrees to hold harmless and indemnify the Fun Park and its affiliates for any claim or lawsuit that may arise as a result of or related to the Holder’s visit.

Id. The bottom of the ticket’s back states, “NOT TRANSFERABLE — NO REFUNDS

— NOT REPLACEABLE — CAN NOT BE RESOLD.” Id.

After the ticket purchase Raup, Elizabeth, and Pyle boarded the SuperChair. At

the summit, staff allegedly told Raup to prepare to get off the chair well beyond the point

where they should have. She claims that she tried to comply, but stumbled when she

hopped off the chair and was hit by the chair from behind. She was knocked off the

platform and severely injured her leg and ankle. To recover damages for her injuries, she

sued Vail.

II. ANALYSIS

“We review summary judgments de novo, applying the same standards that the

district court should apply.” United States v. Turley, 878 F.3d 953, 956 (10th Cir. 2017).

There is no dispute that the law of Colorado governs this litigation. Raup contends that

3 the waiver of liability on the ticket is unenforceable for three reasons: (1) the waiver

does not satisfy the common-law requirements for waiver of liability established in

Jones, (2) the PLA provides the exclusive grounds for assessing liability and does not

recognize a waiver defense, and (3) the waiver is contrary to public policy established by

the PLA. Because this is a diversity case, our task is to predict how Colorado’s highest

court would resolve Raup’s three contentions. See Flores v. Monumental Life Ins. Co.,

620 F.3d 1248, 1250 (10th Cir. 2010). For the following reasons, we believe that the

court would reject them all.

A. Jones Factors

Raup argues that the lift-ticket waiver is unenforceable under the test set forth by

the Supreme Court of Colorado in Jones, 623 P.2d 370. Jones said that exculpatory

agreements releasing a party from liability for negligence are permissible but “must be

closely scrutinized.” Id. at 376. To assess a release’s enforceability, courts consider four

factors: “(1) the existence of a duty to the public; (2) the nature of the service performed;

(3) whether the contract was fairly entered into; and (4) whether the intention of the

parties is expressed in clear and unambiguous language.” Id. This court has recently

noted that a waiver must satisfy all four factors to be enforceable. See Brigance v. Vail

Summit Resorts, Inc., 883 F.3d 1243, 1250 (10th Cir. 2018).

In district court Raup explicitly abandoned any arguments based on the first two

Jones factors. This concession was probably sound. See Espinoza v. Ark. Valley

Adventures, LLC, 809 F.3d 1150, 1153 (10th Cir. 2016) (“Though some businesses

perform essential public services and owe special duties to the public, the [Colorado

4 Supreme Court] has held that businesses engaged in recreational activities generally do

not.” (internal quotation marks omitted)); Brigance, 883 F.3d at 1250–53.1

The third Jones factor is “whether the [exculpatory] contract was fairly entered

into.” Jones, 623 P.2d at 376. We recently explicated this factor in the context of

another chairlift accident: An exculpatory “contract is fairly entered into if one party is

not so obviously disadvantaged with respect to bargaining power that the resulting

contract essentially places him at the mercy of the other party’s negligence.” Brigance,

883 F.3d at 1253 (internal quotation marks omitted). “When engaging in this analysis,

we examine the nature of the service involved, the circumstances surrounding the

formation of the contract, and whether the services provided are available from a source

other than the party with which the plaintiff contracted.” Id. (citations omitted).

Although Colorado courts have indicated that there may be unfair disparity in bargaining

power in an employee-employer or residential landlord-tenant relationship, or when a

member of the public obtains service from a common carrier or public utility, they have

“held that this type of unfair disparity is generally not implicated when a person contracts

with a business providing recreational services. This is because recreational activities are

not essential services or practically necessary, and therefore a person is not at the mercy

of a business’s negligence . . . .” Id. (citation and internal quotation marks omitted). In

1 Although the amicus brief of the Colorado Trial Lawyers Association presents arguments based on the first two Jones factors, no one has suggested that there exist “exceptional circumstances” justifying consideration of arguments made only by amici. Dutcher v. Matheson, 840 F.3d 1183, 1204 (10th Cir. 2016) (internal quotation marks omitted).

5 other words, when it comes to recreational services, “individuals are generally free to

walk away if they do not wish to assume the risks described in an exculpatory

agreement.” Id. at 1253–54 (original brackets and internal quotation marks omitted).

As for the fourth Jones factor—whether the parties’ intent to release liability is

“expressed in clear and unambiguous language”—we have observed that “[t]he inquiry

conducted under this factor should be whether the intent of the parties was to extinguish

liability and whether this intent was clearly and unambiguously expressed.” Id. at 1255

(internal quotation marks omitted). To make this determination, “we may examine the

actual language of the agreement for legal jargon, length and complication, and any

likelihood of confusion or failure of a party to recognize the full extent of the release

provisions.” Id. (brackets and internal quotation marks omitted).

Raup makes two arguments based on the third and fourth Jones factors. Her

argument under the third factor is based on standard contract law. See Aplt. Br. at 16

(“The third prong of a recreational waiver analysis is a contract analysis. Ultimately,

waiver is a contract. Thus, whether and how it will be enforced requires a garden-variety

contract analysis.” (internal quotation marks omitted)). She contends that the lift-ticket

release was not “fairly entered into” because she “did not receive her lift ticket until after

the contract was consummated, and the lift ticket had become non-refundable.” Aplt. Br.

at 17.2 We do not consider this argument, however, because she did not make it in

2 Perhaps recognizing Colorado law expressed in Feeney v. America West Airlines, 948 P.2d 110, 112–13 (Colo. App. 1997) (passenger who took the flight was bound by language on back of airline ticket and baggage check), Raup does not contest that her

6 district court and has not attempted to explain how it could survive the strict requirements

of plain-error review on appeal. See Jacks v. CMH Homes, Inc., 856 F.3d 1301, 1306

(10th Cir. 2017) (argument is waived by failure to preserve it below and subsequent

failure to argue plain error on appeal).

Raup’s remaining argument is based on a composite of the third and fourth Jones

factors. She asserts that “[t]he uncontroverted facts demonstrate that an exculpatory

contract was not ‘fairly entered into . . . expressed in clear and unambiguous language.’”

Aplt. Br. at 19–20 (quoting Jones, 623 P.2d at 376 (emphasis omitted; ellipsis in Raup’s

brief)). She focuses on the small font size of the waiver and the allegedly obscure

language.3

conduct after receiving the lift ticket—that is, electing to ride the lift—was enough to enter into the lift-ticket contract if the contract was otherwise valid. See, e.g., Aplt. Br. at 22–23 (conceding that district court was “technically accurate” in stating that “under Colorado law, contracts may be formed without signatures of the parties bound by them and without the party having read them”). 3 Judge Briscoe’s separate opinion makes additional arguments on behalf of Raup, but we decline to address arguments not adequately preserved by the appellant. If anything, we have been too generous in addressing Raup’s arguments, because she probably did not preserve in district court her obscure-language argument. See Pl.’s Resp. in Opp’n to Def.’s Mot. for Summ. J., Aplt. App., Vol. II at 233–36. In Raup’s discussion of this point in the argument section of her district-court response to the motion for summary judgment, she makes no argument based on the circumstances surrounding her obtaining the ticket or general conspicuousness. See id. Her preserved arguments do not distinguish between this case and one in which the ticket had been mailed to her in advance. Unlike the separate opinion, we follow this court’s practice of considering only contentions raised in the argument section of an attorney’s brief. If courts, either district or appellate, were expected to search for arguments in the statement of facts of an attorney’s brief, we would impose an improper burden on opposing counsel to do the same and would create much more injustice than justice. We therefore do not consider any possible “implicit” arguments contained in the “Response to Movant's Statement of Material Facts” in Raup’s response to Vail’s motion for summary judgment. We also

7 The Colorado Court of Appeals has recently advised that “a provision that would

exempt its drafter from any liability occasioned by his fault should not compel resort to a

magnifying glass and lexicon.” Stone v. Life Time Fitness, Inc., 411 P.3d 225, 230 (Colo.

App. 2017) (internal quotation marks omitted), cert. denied sub nom. Life Time Fitness,

Inc. v. Stone, No. 17SC82, 2017 WL 2772252 (Colo. June 26, 2017). In other words, a

waiver provision must be accessible to a customer who wishes to read it. It should be

legible without resort to a special device (that is, a device unlikely to be readily

available), and it should be readily comprehensible by a layperson.

Vail does not dispute Raup’s assertion that the warning on the ticket’s front and

the release on its back both appear to be in five-point font. Certainly anyone who uses

reading glasses to read a newspaper would need such glasses to read the language on the

ticket. But we agree with the district court that the print, although small, does not require

a magnifying glass. And the words “WARNING” and “VOLUNTARILY ASSUMES

note that her cross-motion for partial summary judgment contains no additional argument regarding waiver; it simply incorporates her argument from her response to the motion for summary judgment. In addition, we are concerned that the separate opinion relies on a photocopy of a ticket to support the argument that the type on the ticket was illegible. We are unwilling to rely on such a photocopy, because of the possible distortions in size and clarity of an image. The original of the ticket is not available in the district-court record. And the copies of tickets in the record are much more legible than the copy attached to the separate opinion. See also Fed. R. App. P. 28(j) Notice of Supplemental Authority (Oct. 2, 2017) (explaining that copy of ticket in the record is reduced in size from the copy submitted to the district court). The only argument regarding legibility raised by Raup on appeal is that the size of the font—5-point font, according to Raup—is too small. Although we generally rely on copies of documents in the record, it would be grossly unfair to rely on a defective copy to make an argument for reversal that was not preserved below. If Vail had been alerted in the district court to claims of cramped or fuzzy typography, it could have responded by providing a better copy for the record.

8 ALL RISKS” are printed so as to attract attention to the essentials of the waiver. See

Colo. Rev. Stat. § 4-1-201(10) (Colorado Uniform Commercial Code provision defining

conspicuous to include “contrasting type”).4 (In any event, Raup’s briefs on appeal do

not complain that the language on the ticket is inconspicuous. The words conspicuous

and inconspicuous are not to be found in those briefs.)

As for the alleged obscurity of the exculpatory language, we think laypersons

would have little difficulty comprehending “The Holder of this ticket understands and

VOLUNTARILY ASSUMES ALL RISKS associated with visiting the Fun Park,

including the risks of property damage, personal injury, and death,” or “The Holder

agrees to not bring any claim or lawsuit against the Fun Park or its affiliates that could

arise from the negligence of the Holder or others, including the negligence of the Fun

Park operator or its employees.” Lift Ticket. The language is readily distinguishable

4 Colorado Rev. Stat. § 4-1-201(10), a provision of the Colorado Uniform Commercial Code, states in full (emphasis added): “Conspicuous”, with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following: (A) A heading in capital letters equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and (B) Language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

9 from the language in the exculpatory clause held unenforceable in Stone. That

exculpatory clause was “replete with legal jargon,” Stone, 411 P.3d at 230, focused on

risks very different from those that caused the plaintiff’s injury, had a misleading caption

apparently referring to some unknown statutes, and had other features heightening the

clause’s ambiguity, see id. at 230–32.

We live in a world where it seems that every product and service comes with

numerous warnings and conditions. Most of us pay little or no attention to them. Raup,

for example, testified that she did not look at the back of her lift ticket. What Jones and

the common law require is that the warnings and conditions be reasonably apparent and

accessible to the consumer who wishes to be informed. In our view, the ticket satisfied

those requirements. We are not persuaded that the lift-ticket waiver is unenforceable

under the third or fourth factors of Jones.

B. Statutory Arguments

Raup presents two arguments why the waiver is invalid because of the PLA. She

argues (1) that the PLA preempts the common-law defense of release through an

exculpatory agreement and (2) that the common-law defense is contrary to public policy

established by the PLA.

1. Preemption

Raup contends that the PLA “defined the full extent of claims against landowners

as well as all defenses available to landowners.” Aplt. Br. at 28. In her view, it therefore

follows that Vail cannot use the waiver defense because the PLA does not explicitly

10 recognize it.5 We disagree.

Colorado enacted the PLA “to protect landowners from liability in some

circumstances when they were not protected at common law and to define the instances

when liability will be imposed.” Colo. Rev. Stat. § 13-21-115(1.5)(e). Subsection 3 of

the Act sets forth the standard of care owed to trespassers, licensees, and invitees.6

Subsection 2 makes clear that subsection 3 sets a limit on the liability of property owners,

5 Vail contends that Raup waived this argument by not raising it below. We disagree. Raup argued below that the PLA “abrogate[d] the common law with respect to landowner duties,” so “Vail’s so called ‘ticket waiver’ is invalid.” Aplt. App., Vol. II at 296. 6 Subsection 3 states in full: (a) A trespasser may recover only for damages willfully or deliberately caused by the landowner. (b) A licensee may recover only for damages caused: (I) By the landowner’s unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew; or (II) By the landowner’s unreasonable failure to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew. (c) (I) Except as otherwise provided in subparagraph (II) of this paragraph (c), an invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known. (II) If the landowner’s real property is classified for property tax purposes as agricultural land or vacant land, an invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew.

11 stating: “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.”7

Raup relies on the interpretation of the PLA in Vigil v. Franklin, 103 P.3d 322

(Colo. 2004). The issue before the court was whether a landowner could invoke the

open-and-obvious-danger doctrine as a defense to liability. See id. at 323. The court said

that subsection 2 of the Act established the state legislature’s “intent to establish a

comprehensive and exclusive specification of the duties landowners owe to those injured

on their property. . . . The plain language preempts prior common-law theories of

liability, and establishes the statute as the sole codification of landowner duties in tort.”

Id. at 328. “Consequently,” it concluded, “while a landowner may argue that he owes no

duty to an injured plaintiff, he may do so only pursuant to the defenses set forth in the

statute.” Id. at 330.

7 The full text of Section 2 is as follows:

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. Sections 13-21-111 [relating to comparative negligence], 13-21-111.5 [same], and 13-21-111.7 [relating to construction contracts] shall apply to an action to which this section applies. This subsection (2) shall not be construed to abrogate the doctrine of attractive nuisance as applied to persons under fourteen years of age. A person who is at least fourteen years of age but is less than eighteen years of age shall be presumed competent for purposes of the application of this section.

12 Vail responds that “the Colorado courts and the Tenth Circuit have routinely

analyzed whether waivers of [PLA] claims are valid under the Jones factors”—analysis

that would be irrelevant under Raup’s preemption theory. Aplee. Br. at 32. And it

contends that “the only common-law defenses that the [PLA] eliminates are those that

relate to the duty of care owed by landowners,” so “defenses that do not contradict the

[PLA’s] standard of care”—arguably including waiver through exculpatory agreements—

“are still available.” Id. at 33. It points to Union Pacific Railroad Co. v. Martin, 209

P.3d 185, 189 (Colo. 2009), which held that the PLA does not override Colorado’s

comparative-fault statute and described Vigil’s rule of decision as being “limited to the

abrogation of common-law doctrines affecting the duties of landowners.” These

arguments have some force, but we need not rely on them. A third argument of Vail’s is

dispositive. We reject Raup’s preemption argument because, as pointed out by Vail, the

context and language of a post-PLA enactment make clear that the legislative purpose of

the PLA is not to bar the waiver defense.

To explain, we must relate some history. In June 2002 the Colorado Supreme

Court decided Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1231 (Colo. 2002), which

considered a release signed by a mother on behalf of her minor child, relieving a ski club

from liability for negligence. The child suffered injuries while skiing and sued the ski

club for, among other things, negligence. See id. at 1230, 1232. The Colorado Supreme

Court ruled that “Colorado’s public policy affords minors significant protections which

preclude parents or guardians from releasing a minor’s own prospective claim for

negligence.” Id. at 1232. By affording minors special treatment, the court seemed to

13 implicitly assume that adults could waive negligence claims for themselves.

More importantly, less than a year later the Colorado General Assembly rejected

Cooper, enacting legislation stating that “[a] parent of a child may, on behalf of the child,

release or waive the child’s prospective claim for negligence.” Colo. Rev. Stat. § 13-22-

107(3) (enacted in May 2003). This language in itself indicates legislative approval of

waivers of liability for recreational activity.

But the legislature said much more. Paragraph 1(b) of the statute explicitly states

that Cooper “has not been adopted by the general assembly and does not reflect the intent

of the general assembly or the public policy of this state.” Further, Paragraph (1)(a),

which we quote in full in a footnote,8 “finds, determines, and declares” six propositions

8 Paragraph 1(a) states: The general assembly hereby finds, determines, and declares it is the public policy of this state that: (I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist; (II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities; (III) Parents have a fundamental right and responsibility to make decisions concerning the care, custody, and control of their children. The law has long presumed that parents act in the best interest of their children. (IV) Parents make conscious choices every day on behalf of their children concerning the risks and benefits of participation in activities that may involve risk;

14 to be “the public policy of this state.” These propositions make clear the legislative

support for waivers in the recreational context. In particular, subparagraphs I, II, and VI

recognize that waivers are essential to the provision of sporting and recreational

opportunities:

(I) Children of this state should have the maximum opportunity to participate in sporting, recreational, educational, and other activities where certain risks may exist; (II) Public, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits, and without the measure of protection these entities may be unwilling or unable to provide the activities; (VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.

Of course, § 13-22-107 could not have served these purposes if the PLA prohibited all

waivers of landowner negligence liability. And we would have to blind ourselves to

reality to doubt that the legislature that enacted the statute was assuming that adults could

(V) These are proper parental choices on behalf of children that should not be ignored. So long as the decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education; and (VI) It is the intent of the general assembly to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities.

15 waive their own negligence claims to enable themselves to participate in sporting and

recreational activities. If there had ever been any question that the PLA accommodates

appropriate waivers of negligence, that question was answered when the legislature spoke

in § 13-22-107.

This conclusion follows from recognized principles of statutory interpretation.

When we interpret a statute, we must look at the context. “Statutory construction is a

holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by

the remainder of the statutory scheme—because the same terminology is used elsewhere

in the context that makes its meaning clear, or because only one of the permissible

meanings produces a substantive effect that is compatible with the rest of the law.” Smith

v. United States, 508 U.S. 223, 233 (1993) (ellipsis and internal quotation marks

omitted); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts 252 (2012) (“Any word or phrase that comes before a court for

interpretation is . . . part of an entire corpus juris. So, if possible, it should no more be

interpreted to clash with the rest of that corpus than it should be interpreted to clash with

other provisions of the same law. Hence laws dealing with the same subject . . . should

if possible be interpreted harmoniously.”). And even if there has been no change in the

language of a statutory provision, the change in the surrounding context can require that

the construction of the language, even just a word, be modified. See Smith, 508 U.S. at

236 (“Even if we assume that Congress had intended the term ‘use’ to have a more

limited scope when it passed the original version of [the statute] . . . , we believe it clear

from the face of the statute that the Congress that amended [the statute]. . . did not.”).

16 Perhaps at one time it would have been proper to interpret the PLA to bar waivers

because it said that “the landowner shall be liable only as provided in [§ 13-21-115(3)].”

Col. Rev. Stat. § 13-21-115(2). But the statutory language is hardly unambiguous on that

point, see Union Pacific, 209 P.3d at 189 (PLA supplants only common-law duties); and

that interpretation is not tenable after the enactment of § 13-22-107 in 2003.

2. Public Policy

Raup’s second statutory argument is that exculpatory agreements like the one at

issue here run afoul of public-policy considerations reflected in three pieces of Colorado

legislation—the PLA; Colorado’s Ski Safety Act, Col. Rev. Stat. §§ 33-44-101 to 114;

and Colorado’s Passenger Tramway Safety Act, id. §§ 25-5-701 to 721.9 As Vail points

out, Raup did not invoke the public policy behind the Ski Safety Act and the Tramway

Act below,10 nor does she assert plain error now. Raup’s argument based on these two

9 Confusingly, Raup states that this argument “focuses on Jones’ first consideration, i.e., public policy.” Aplt. Br. at 28. Because Raup expressly declined to press arguments based on the first Jones factor below, Raup’s association of this public-policy argument with the first Jones factor is odd. See Aplt. App., Vol. II at 233 (“Plaintiff . . . does not contest [factors one and two].”). We recently observed, however, that “[a]lthough consideration of [the Jones] factors is generally sufficient to determine the enforceability of exculpatory agreements, the Colorado Supreme Court has clarified that other public policy considerations not necessarily encompassed in the Jones factors may invalidate exculpatory agreements.” Brigance, 883 F.3d at 1250 (internal quotation marks omitted). Following this lead, we will address Raup’s public-policy argument outside the Jones framework. 10 In her reply brief on appeal, Raup cites one sentence from her cross-motion for partial summary judgment, and a four-page portion of her reply in support of the cross-motion, as evidence that it invoked the public-policy considerations of the Ski Safety Act and the Tramway Act below. Neither citation discusses either piece of legislation; they do not preserve the issue.

17 statutes is thus waived. See Jacks, 856 F.3d at 1306.11

This leaves only the public-policy considerations underlying the PLA. We begin

our analysis with an admonition from the Colorado courts: “The power of courts to

declare a contract void for being in violation of public policy is a very delicate and

undefined power and, like the power to declare a statute unconstitutional, should be

exercised only in cases free from doubt.” Armed Forces Bank, N.A. v. Hicks, 365 P.3d

378, 385 (Colo. App. 2014).

Raup’s PLA public-policy argument is unpersuasive. It points to nothing

particular in the PLA that suggests a public policy against exculpatory contracts. The

only authority it cites in support is our statement in Mincin v. Vail Holdings, Inc., 308

F.3d 1105, 1111 n.2 (10th Cir. 2002), that the PLA “demonstrates that, at least in some

circumstances, premises liability is an issue of public concern grave enough to invalidate

an otherwise valid exculpatory agreement.” Our opinion, however, hardly held that

exculpatory clauses are prohibited by the public policy behind the PLA. On the contrary,

we affirmed the validity of an exculpatory clause. See id. at 1109.

In any event, Raup’s argument fails under the analysis we applied in rejecting

similar public-policy arguments based on related statutes. In Brigance the plaintiff

contended that the public policies behind the Ski Safety Act and the Tramway Act made

exculpatory waivers invalid. See Brigance, 883 F.3d at 1258–59. We observed that

11 Even if Raup had not waived an argument based on these two statutes, this court recently addressed a similar argument in a very similar context. See Brigance, 883 F.3d at 1258–59. After a thorough analysis, we concluded that neither statute bars exculpatory agreements. See id.

18 while “the [two statutes] identify various duties and responsibilities that, if violated, may

subject a ski area operator to liability,” they “do nothing to expressly or implicitly

preclude private parties from contractually releasing potential common law negligence

claims through use of an exculpatory agreement.” Id. at 1260. Indeed, the plaintiff

“[did] not identify a single provision in either the [Ski Safety Act] or [the Tramway Act]

suggesting the enforcement of exculpatory agreements in the ski and ski lift context is

impermissible or contrary to public policy.” Id.

The same can be said of the PLA. Nothing in § 13-21-115 expressly precludes

parties from executing waivers by exculpatory agreements. The concerns of the statute

were unrelated to waivers. Its stated purposes include “to assure that the ability of an

injured party to recover [from a landowner] is correlated with his status as a trespasser,

licensee, or invitee,” Colo. Rev. Stat. § 13-21-115(1.5)(a), and “to create a legal climate

which will promote private property rights and commercial enterprise and will foster the

availability and affordability of insurance,” id. § 13-21-115(1.5)(d). Neither goal

supports a ban on exculpatory waivers—which would diminish landowners’ common-

law protections and make insurance less available and more expensive. Certainly this is

not the sort of “free from doubt” case that merits voiding a contract on public-policy

grounds.

We reject Raup’s statutory arguments against the enforceability of the

19 exculpatory agreement on the lift ticket.12

III. CONCLUSION

We AFFIRM the judgment of the district court. We DENY Raup’s motion to

certify questions of state law.

Entered for the Court

Harris L Hartz Circuit Judge

12 Raup has requested that this court certify two questions to the Supreme Court of Colorado. We decline the invitation and DENY Raup’s motion. When, as here, “we see a reasonably clear and principled course, we will seek to follow it ourselves.” Sundance Energy Okla., LLC v. Dan D. Drilling Corp., 836 F.3d 1271, 1277–78 n.6 (10th Cir. 2016).

20 17-1039, Raup v. Vail Resorts, Inc. BRISCOE, Circuit Judge, concurring in part and dissenting in part.

I concur in part and dissent in part. I agree with the majority that, in light of this

court’s recent decision in Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243 (10th Cir.

2018), we are bound to reject Raup’s claim that the exculpatory language printed on the

back of her lift ticket was invalid as a matter of public policy. But I disagree with the

majority’s conclusion that the exculpatory language contained on the back of the lift

ticket was expressed in clear and unambiguous language and is therefore enforceable. In

my view, nothing—including the warning language printed on the front of the lift

ticket—reasonably alerted Raup to the presence of the exculpatory language contained on

the back of the lift ticket. I therefore would reverse the district court’s grant of summary

judgment in favor of Vail on Raup’s claim under Colorado’s Premises Liability Act

(PLA) and remand the case to the district court for further proceedings.

I

Factual background

The events at issue in this case occurred at the Breckenridge Ski Resort in

Breckenridge, Colorado, which is operated by defendant Vail. During the summer

months, Vail operated what was known as the Fun Park at the base of Breckenridge Peak

8. The Fun Park offered the public, for a fee, scenic rides on the Colorado SuperChair

chairlift (SuperChair).

On June 25, 2013, Raup visited the Fun Park with her adult daughter, Elizabeth

Pyle, and her son-in-law, Jason Pyle. The Pyles purchased tickets for themselves and Raup to ride the SuperChair that day. Neither the Pyles nor Raup signed a release of

liability.1 Raup may have looked at the front of the ticket before she rode the SuperChair.

At the very bottom of the front of the ticket, in capital letters printed in 5-point font, was 2 the following: “ IMPORTANT WARNING ON REVERSE..” Aplt. App. at 79, 212. This statement was printed

directly below, and was effectively touching, a series of thirteen letters and numbers,

which in turn were printed directly below and effectively touching the ticket’s bar code.

Raup did not look at the back of the ticket. The back of the ticket included the

following language, printed in a small font:

The Holder of this lift ticket understands and VOLUNTARILY ASSUMES ALL RISKS associated with visiting the Fun Park, including the risks of property damage, personal injury, and death.

The holder agrees to not bring any claim or lawsuit against the Fun Park or its affiliates that could arise from the negligence of the Holder or others, including the negligence of the Fun Park operator or its employees, or from incidents occurring in connection with the natural environment or reasons outside the Fun Park’s or its affiliates’ control.

The Holder understands that many activities in the Fun Park are self- directed, and that property damage, injury or death to Holder or others may occur as a result of the Holder’s own decisions and actions in these activities.

The Holder agrees to read and follow the directions and warnings on all posted signs, and to follow any verbal or written instructions provided by the Fun Park or its employees.

1 The record indicates that in the summer of 2012, Vail required anyone purchasing a ticket for the SuperChair to sign a liability release. Vail apparently abandoned that practice during the summer of 2013. 2 A photocopy of the front and back of the ticket is attached to this opinion.

2 The Fun Park and its affiliates affirmatively deny all liability for any property damages, injury, or death occurring as a result of or related to the Holder’s visit to the Fun Park, and the Holder, by use of this ticket, hereby understands and accepts such denial of liability and agrees to hold harmless and indemnify the Fun Park and its affiliates for any claim or lawsuit that may arise as a result of or related to the Holder’s visit.

Id. at 80.

Raup and the Pyles, with their purchased tickets, walked to the base of the

SuperChair to get on the chairlift. Their intention was to ride the SuperChair to the top

and back down without getting off at the top. Raup and the Pyles did not, however,

inform anyone at the base of the SuperChair of their intention. Raup and the Pyles

presented their lift tickets to the attendant at the base, got on the SuperChair without

incident, and began riding to the top.

Near the top of the SuperChair, but prior to the unloading area, signs were posted

that said “PREPARE TO UNLOAD/RAISE BAR” and “CHECK FOR LOOSE

CLOTHING AND EQUIPMENT.” Id. At the top of the SuperChair at the unloading

area, there was a vertical sign on the right-hand side that states, “UNLOAD HERE.” Id.

The unloading area at that time consisted of a flat area at the UNLOAD HERE sign (i.e.,

the point at which most riders unload), followed by a ramp of unspecified length that

declined in elevation by approximately one inch per foot. During summer operations,

chairs on the SuperChair travel more slowly than they do in the winter, and as they

proceed through the unloading terminal, the chairs automatically detach from the main

haul rope and slow to 1.6 miles per hour to allow for unloading.

3 As their chair approached the unloading area, Raup and the Pyles did not raise

their safety bar because, as noted, their intention was to ride the chairlift back down the

mountain. The lift attendants working at the unloading area signaled for them to raise the

bar on their chair in order to get off of the lift. It is disputed whether one of the lift

attendants also slowed the lift down so that Raup and the Pyles could get off of their chair

more easily. After their chair had traveled past the “PREPARE TO UNLOAD/RAISE

BAR” sign, one of the lift operators began waving his arms and yelling at Raup and the

Pyles to raise the foot rest and get off the chair. Id at 216.

According to Raup, she and the Pyles did not understand that the lift operators

wanted them to get off of the chair until they were approximately five feet from the

unloading area. At that point, Raup and the Pyles responded by raising the foot rest,

which caused Raup to lose one of her sandals. The Pyles were able to hop off of the

chairlift without incident. Raup, however, did not hop off of the chairlift until it was

approximately ten feet past the unloading sign, which meant that the unloading platform

was approximately ten inches lower than at the unloading sign. More specifically, the

seat of the chairlift was approximately 32 inches off of the platform at the point at which

Raup hopped off, versus the seat of the chairlift being 22 inches off of the platform at the

unloading sign. Shortly after hopping off the chairlift, Raup stumbled and was struck by

the chair as it swung around to the left to descend down the mountain. Raup then fell off

of the platform and, in the process, sustained fractures to her left femur, tibial plateau, and

ankle.

4 Procedural background

On March 30, 2015, Raup initiated this diversity action by filing a complaint in

federal district court against Vail. Raup’s amended complaint asserted two claims for

relief. The first claim alleged that “Vail’s actions or lack thereof constituted a violation

of its obligations to Raup, as an invitee, as set forth in the [Premises Liability Act] at §13-

21-115(3)(c), C.R.S.” Id. at 14. “Specifically,” the amended complaint alleged, “Vail’s

actions . . . constituted an ‘unreasonable failure to exercise reasonable care to protect

[Raup] against dangers of which [Vail] actually knew or should have known.’” Id. at 15.

The second claim alleged negligence, including negligence per se. Id. In particular, the

amended complaint alleged that “Vail was operating a passenger tramway ‘while a

condition exist[ed] in the design, construction, operation, or maintenance of the passenger

tramway which endanger[ed] the public health, safety, or welfare, which condition was

known, or reasonably should have been known, by [Vail],’ in violation of the provisions

of [Colorado’s] Tramway Act, at §25-5-706(3)(c), C.R.S.” Id. The amended complaint

also alleged that “[t]he lift operator was negligent as well in abruptly ordering [Raup] to

disembark from the chairlift, . . . as well as not being in a position to and/or choosing not

to exercise the safe options of either stopping the chairlift, assisting Raup in getting off of

the chairlift, or allowing her to continue to travel down the mountain in the chairlift.” Id.

at 16.

On June 1, 2015, Vail moved to dismiss Raup’s negligence and negligence per se

claim, arguing that the PLA “abrogate[d] all common law claims for negligence against a

5 landowner.” Id. at 19. On February 1, 2016, the district court granted Vail’s motion.

On May 27, 2016, Vail moved for summary judgment on Raup’s remaining claim

for relief under the PLA. In its motion, Vail argued, in pertinent part, that Raup’s claim

was barred by the exculpatory language that was printed on the back of her lift ticket.

Raup filed a response in opposition to Vail’s motion. Raup also filed a cross-motion for

partial summary judgment on the issue of waiver.

On January 23, 2017, the district court issued a written order granting Vail’s

motion for summary judgment and denying Raup’s cross-motion for partial summary

judgment. In doing so, the district court concluded that Vail did not owe any special

duties to the public or perform essential public services, and that Raup fairly entered into

a contract with Vail when she decided to engage in the voluntary and recreational activity

of riding a chairlift. The district court also concluded that the exculpatory language

printed on the back of Raup’s lift ticket clearly reflected an intent on the part of Vail to

extinguish liability, and that Raup’s failure to read, or even attempt to read, the warning

on the back of the lift ticket did not absolve her from the waiver of liability. Lastly, the

district court rejected Raup’s argument that the PLA precluded liability releases as a

matter of public policy.

Judgment in the case was entered on January 24, 2017. Raup filed a timely notice

of appeal.

II

6 Raup argues on appeal that the district court erred in granting summary judgment

in favor of Vail. “We review the district court’s grant of summary judgment de novo.”

Pioneer Centres Holding Co. Emp. Stock Ownership Plan v. Alerus Fin., N.A., 858 F.3d

1324, 1333 (10th Cir. 2017). “[B]ecause this is a diversity case, we apply federal law to

procedural questions and apply the substantive law of the forum state, Colorado, to

analyze the underlying claims.” Brokers’ Choice of Am., Inc. v. NBC Univ., Inc., 861

F.3d 1081, 1099 (10th Cir. 2017).

Under Colorado law, “[t]he determination of the sufficiency and validity of an

exculpatory agreement is a question of law for the court to determine.” Jones v. Dressel,

623 P.2d 370, 376 (Colo. 1981). “An exculpatory agreement, which attempts to insulate

a party from his own negligence, must be closely scrutinized, and in no event will such an

agreement provide a shield against a claim for willful and wanton negligence.” Id. “In

determining whether an exculpatory agreement is valid, there are four factors which a

court must consider.” Id. These include: “(1) the existence of a duty to the public; (2) the

nature of the service performed; (3) whether the contract was fairly entered into; and

(4) whether the intention of the parties is expressed in clear and unambiguous language.”

Id.

In my view, the fourth Jones factor is dispositive in this case. See Stone v. Life

Time Fitness, Inc., 411 P.3d 225, 229 (Colo. App. 2016) (noting that “[t]he validity of

exculpatory clauses releasing or waiving future negligence claims usually turns on the

fourth Jones factor”). It is undisputed that Raup had the lift ticket in her possession for a

7 short period of time (before presenting it to the lift operator) and may have looked at the

front of it. It is also undisputed, however, that Raup did not look at the back of the lift

ticket. Further, there is no evidence that any Vail employee verbally alerted Raup or the

Pyles to the exculpatory language printed on the back of the lift ticket, nor is there any

evidence that there were any signs in the Fun Park alerting Raup and other visitors to the

exculpatory language. Thus, the only way that we could say as a matter of law that Raup

reasonably knew or should have known about the exculpatory language on the back of the

lift ticket is because of the presence of the warning language printed on the front of the

lift ticket, i.e., “IMPORTANT WARNING ON REVERSE.” The problem with this

warning language, however, is that it was printed in an extremely small

font—approximately 5-point font—at the very bottom of the ticket. The majority

concludes, and I agree, that “[c]ertainly anyone who uses reading glasses to read a

newspaper would need such glasses to read the [warning] language on the [front of the]

ticket.” O&J at 8–9. Moreover, the warning language was positioned directly below and

literally touched a series of thirteen larger letters and numbers, which in turn were

positioned directly below the ticket’s even larger bar code. As Raup argues on appeal,

“Vail’s reliance on tiny words crowded onto the front of the lift ticket is not sufficient to

satisfy the strict scrutiny standard required to enforce an exculpatory agreement.” Aplt.

Br. at 20. In sum, the warning language was both inconspicuous (a factor that the

majority does not discuss) and illegible—at least without use of an assistive device—to a

significant percentage of the population. Consequently, I conclude as a matter of law that

8 the waiver language on the back of the lift ticket is unenforceable.

No Colorado cases that I have found address facts similar to those presented here.3

But the Superior Court of Pennsylvania addressed a somewhat similar set of facts in

Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266 (Pa. Super. Ct. 2006). In that case,

the plaintiff, her husband, and their two children visited Ski Shawnee in Pennsylvania for

the purpose of going snow tubing. The plaintiff’s husband purchased four tubing tickets,

which he in turn gave to the plaintiff and their children for their use. On the back of each

tubing ticket was exculpatory language written in small print. No employee of Ski

Shawnee verbally informed the plaintiff or her husband of the existence of the

exculpatory language. Neither plaintiff nor her husband read the exculpatory language on

the back of the tickets. The plaintiff used her ticket and fractured her ankle while snow

tubing. She subsequently sued Ski Shawnee and Ski Shawnee asserted as a defense the

existence of the exculpatory language on the tickets. The state trial court granted

summary judgment in favor of Ski Shawnee and the plaintiff appealed. The Pennsylvania

Superior Court reversed, concluding that “[u]nder the circumstances of this case, where it

is undisputed that neither the purchaser nor user of the ticket read its language, and where

the language of the ticket itself is not so conspicuous as to, without more, put the

3 Because the Colorado courts have never before addressed the validity of an exculpatory provision contained on an unsigned document, such as a ski lift ticket, this case is significant and should arguably be addressed by the Colorado Supreme Court in the first instance, rather than by this court. In any event, exculpatory provisions contained on documents of this type surely must be easily noticeable by customers in order to be deemed valid.

9 user/purchaser on notice, we cannot conclude as a matter of law that the disclaimer is

enforceable.” Id. at 1275. In reaching this conclusion, the court noted that “[t]he

disclaimer language on the ticket was in a font size . . . that . . . was just barely readable,”

and that, consequently, “the disclaimer language on the ticket itself was [not] sufficiently

conspicuous such that, without any further indications from the ski facility, a purchaser

would be put on notice of its contents.” Id.

Much the same can be said in Raup’s case. In short, neither the warning language

printed on the front of the lift ticket nor any other factor would have reasonably alerted

Raup to the exculpatory language printed on the back of the lift ticket. Consequently, the

exculpatory language printed on the back of the lift ticket is invalid and unenforceable.

In arriving at the opposite conclusion, the majority states simply “that the print” of

the warning language on the front of the ticket, “although small, does not require a

magnifying glass.” O&J at 9. In other words, the majority focuses solely on the size of

the “IMPORTANT WARNING ON REVERSE” language on the front of the ticket and,

in doing so, draws a distinction between print, such as that used here, that “anyone who

uses reading glasses to read a newspaper would need such glasses to read,” and print that

“require[s] a magnifying glass” to read. Id. Of course it is true that both the Colorado

Supreme Court and the Colorado Court of Appeals have cited with approval a New York

Court of Appeals case holding that “‘a provision that would exempt its drafter from any

liability occasioned by his fault should not compel resort to a magnifying glass and

lexicon.’” Stone, 411 P.3d at 230 (quoting Gross v. Sweet, 400 N.E. 2d 306, 309 (N.Y.

10 1979)). But neither the Colorado Court of Appeals nor the Colorado Supreme Court

intended for that phrase to serve as the literal or exclusive test for the validity of

exculpatory language. And, indeed, the Colorado Court of Appeals’ decision in Stone

proves otherwise. There, the Colorado Court of Appeals held that exculpatory language

in a written agreement was invalid, in part, because it “consist[ed] of extremely dense fine

print, for which a great many people would require a magnifying glass or magnifying

reading glasses.” 411 P.3d at 230 (emphasis added). In short, the Colorado Court of

Appeals, unlike the majority in this case, saw no distinction between print that required

the use of a magnifying glass and print that required the use of magnifying reading

glasses. Thus, the majority’s decision in this case is contrary to the Colorado Court of

Appeals’ decision in Stone.

Curiously, the majority declines to address “the circumstances surrounding

[Raup’s] obtaining the ticket or [the] conspicuousness” of the warning language on the

front of the ticket, asserting that Raup failed to argue those factors below. O&J at 7 n.3.

A review of the district court pleadings, however, refutes the majority’s conclusion. In

her response to Vail’s summary judgment motion, Raup noted under the heading

“Plaintiff’s Direct Response to Vail’s Statement of Material Facts” that “it was the Pyles

who purchased the lift tickets and not plaintiff.” Aplt. App., Vol. II at 211. In that same

section of her response, Raup also noted that the warning language was printed “on the

very bottom of the front side of the lift ticket.” Id. at 212. In a subsequent section of her

response titled “Plaintiff’s Version of the Undisputed Facts,” Raup again noted that “her

11 daughter went into the hut and purchased the lift tickets, together with Mr. Pyle, and the

party thereafter proceeded to the chairlift where her daughter likely presented the tickets

to the lift operator at the bottom of the lift.” Id. at 214. In that section of her response,

Raup also again noted that the warning was printed “in tiny language on the very end of

the front of the lift ticket.” Id. at 215. In the argument section of her response, Raup

then, as is the usual briefing practice, tied her legal arguments to the preceding factual

background she had set forth. Under a heading titled “There Did Not Exist an

Enforceable Agreement Between Plaintiff and Vail Whereby Plaintiff Released Them

from Liability for Negligence,” Raup again noted that the warning language was “in . . .

tiny print (likely 5 pt. font) . . . located at the very end of the front side.” Id. at 235. She

in turn argued that “[u]nder the best of circumstances, this may have alerted a very

inquisitive middle aged person, who had brought along her strongest reading glasses, that

there was a warning on the reverse side, but certainly not a release agreement.” Id.

Although Raup never mentioned the word “conspicuous,” it is obvious that that was the

intent of her repeated references to the font size and location of the warning language on

the front of the ticket. Thus, in sum, Raup clearly preserved her arguments regarding the

circumstances surrounding the purchase of the ticket, as well as the size and

conspicuousness of the warning on the front of the ticket.

The majority also takes me to task for “rel[ying] on a photocopy of a ticket to

support the argument that the type on the ticket was illegible.” O&J at 8 n.3. According

to the majority, it is “unwilling to rely on such a photocopy, because of the possible

12 distortions in size and clarity of an image,” and because “[t]he original of the ticket is not

available” to us. Id. The majority is well aware, however, that it is the rare case in which

we are provided with originals of an exhibit. More importantly, the record on appeal in

this case establishes that it was Vail, as the movant for summary judgment, who relied on

a photocopy of the lift ticket. Aplt. App., Vol. I at 126. And Raup, in her response to that

motion, noted that the photocopied “images of the lift ticket on [Vail’s] Exh. 4 appear[ed]

to be their actual size.” Id., Vol. II at 215. Thus, we are bound to rely on that photocopy

in resolving this case. Or, stated differently, it would be wholly improper for us, in

deciding whether Vail was entitled to summary judgment in its favor, to infer that the

actual ticket might have been more legible than the photocopy provided to us in the

record on appeal.

For these reasons, I would reverse the district court’s grant of summary judgment

in favor of Vail on Raup’s claim under the PLA and remand for further proceedings.

13 14