On February 20, 2004, Julia Parsons nipped out from her job as a Vail real-estate agent for a quick bit of afternoon skiing on the local mountain. It's one of her favorite things to do, a big reason she'd moved up to Vail from Denver six years earlier. Parsons hits the slopes about 35 times a year, so a Vail season pass always seems to make sense, and she's bought one every year since 1998.
After a half-dozen runs, Parsons headed back toward the lodge. The run took her over Lionshead Bridge, the bottleneck that connects the front west side of the ski area to the amenities and Eagle Bahn gondola below. As she skied across the bridge, she recalls, she suddenly caught an edge and veered into the railing on the side of the bridge. She says the accident was more a failure of balance than anything.
"I'm a controlled skier," she says. "Speed isn't my thing." Still, Parsons felt a tug and a sharp flash of pain. "I knew I'd injured myself," she remembers, "but it felt like I'd just banged something."
Parsons was wearing ski pants and long underwear, so she didn't see the blood until she returned to her office and took off her snow clothes. There was a large gash in her knee. The cut required three layers of stitches to close.
The following day, Parsons returned to Lionshead Bridge to see what she'd hit. She found the bent bracket without much trouble. Used to hold up a railing, it had apparently been bent outward by a snowplow. When Parsons had slipped into the wall, she'd swiped the bracket, which had sliced into her knee.
Several attempts over the following months to earn some sympathy and help with her medical bills from Vail led nowhere, so Parsons contacted a lawyer. A skier for more than twenty years, she isn't naive about the sport; she knows the risks. But in her view, not attending to a sharp object protruding from a major route on and off the mountain made Vail at least partly at fault for her injury.
In October 2004, Parsons sued Vail in Eagle County District Court, arguing that the resort operator should have maintained the bridge properly, or at least placed a warning that parts of it were dangerous. To both Parsons and her attorney, Joe Bloch, the lawsuit was no big deal -- "a couple thousand bucks for damages, and that's it," he says.
Which made it all the more surprising when, a couple months later, Vail turned around and filed a counterclaim against Julia Parsons, seeking legal costs -- and perhaps a precedent. The reason? Her season pass.
Remember filling out the paperwork for your season pass last year? If you're like most people, you probably didn't give a second thought to the waiver -- if you even looked at it at all. "Everyone's waiting in line, sometimes for a couple of hours, and you just want to get in and out," Parsons recalls. "You sign what they put in front of you and you leave."
Same for those who sign up for a season pass on the Internet. Purchase a pass at most any Colorado ski area, and you'll be asked to sign a waiver -- or agree to its terms with a click of the mouse. But few people understand what that really means -- that outside of "willful and wanton" negligence on the part of the resort, said resort cannot be held liable for whatever happens on the mountain, no matter whose fault it is.
Parsons's lawsuit is a blip on the screen of the ski industry's legal radar, one of hundreds of important-looking papers resort lawyers handle every week. Yet in another way, her case is extremely unusual. Colorado already has laws that specifically divide up what resort owners are liable for and what risks skiers assume when they strap on their boards. The season-pass waiver, however, tips the balance. It essentially holds resorts harmless for any accident, whether the law says they are at fault or not. Jim Chalet, a Denver lawyer who is a national expert on ski law, says he's never seen a case before in which a resort has mounted a legal attack against an injured skier, claiming protection under the waiver. For that reason, he says, "this could be a very, very important case."
In recognition of the ski industry's importance to Colorado's heavily tourism-reliant economy, state legislators have been very kind to resort owners when it comes to questions of legal liability. The first major law that offered a broad layer of protection was the Colorado Ski Safety Act of 1979. The law established that, in some instances, resorts were responsible for the safety of their guests -- for example, placing appropriate signs warning of hazards such as man-made and terrain features.
Yet the law also advised skiers that they were undertaking a risky endeavor. A warning appears on the back of every lift ticket in the state, informing skiers that they should be mindful of the "inherent dangers and risks of skiing."
Since 1979, the law has been amended twice, both times to the advantage of resort owners. The changes in 1990 capped damages that aggrieved riders could be awarded if their lawsuits were successful. In 2004, legislators again gave resorts more protection from being sued by skiers. Last year's amendments eliminated the requirement that so-called extreme freestyle terrain be identified as dangerous. The new provision also lumped all ski-area property -- not just slopes -- under the protections of the Ski Safety Act.
Naturally, personal-injury attorneys loathe the measure. "It's really the Colorado Ski Area Immunity and Resort Relief Act," complains Chalet. Even he, however, says that countersuing an injured skier for violating a waiver takes chutzpah.
Vail attorney Peter Rietz declined to comment for this story. The resort has a legal history of aggressively defending itself against liability lawsuits, though, and Parsons's case has been no different. In court filings, the resort has argued that, for starters, just because there was a bracket that might pose a danger to skiers, it is not to blame for Parsons's injuries. The Lionshead Bridge, Vail claims, is an inherent risk of skiing at Vail -- no matter what its condition.
In addition, Vail notes that Parsons had a choice about skiing on its mountain, as well as whether or not to sign its waiver. "Skiing at Vail is a voluntary activity, and so is purchasing a season pass," the company notes. "People are not compelled to do either." Vail adds that, in effect, it asks its season-pass holders to sign a waiver in exchange for a killer deal on the ticket. (Parsons says she paid about $700 for hers.)
The idea that signing a waiver of liability might protect a business beyond what the law dictates is not unheard of. With its long tradition of horse-related activities, Colorado also has laws that protect businesses that use horses -- hunting outfitters and riding stables being the most common -- from many lawsuits. In a decision late last year, the Supreme Court ruled that a hunter who'd sustained serious injuries after falling off his mule could not sue the outfitter. Even though the company might have been at fault -- the mule's saddle apparently was not properly cinched -- the court ruled that since the man had signed a waiver before going on the hunt, he had no case.
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Yet there are differences with the Parsons case, which is still in the early stages. For one thing, a ski-area liability waiver such as the one she signed effectively creates two classes of skiers: those who purchase season passes and by doing so agree to hold the ski area harmless for whatever happens, and those who buy single-day passes or four-passes and therefore maintain their right to sue. "Why should it be any different if you buy a season pass rather than just a one-day ticket?" Bloch wonders.
Still, Chalet says the biggest issue remains the apparent clash between public policy as represented in the Ski Safety Act and the resort owners' attempt to extend the law beyond what legislators intended when they passed those very specific laws. "They want the whole enchilada," he says. "They're not happy with the law; they want full immunity for all their wrongdoing."
For her part, Parsons has resumed her regular life -- in other words, skiing at Vail. "I think it's the greatest mountain to ski on," she says. "I love it -- the terrain, the atmosphere, everything."
Which, of course, is exactly what Vail is counting on. As long as people keep thinking that way, signing away their rights will be just another irritation on the way to the slopes.