Why Colorado's Slopes Are More Dangerous This Year

State representative Judy Amabile's mother was killed in a skiing accident in Aspen in 1987. For Amabile, it was a wake-up call to the dangers of skiing.

“At the time that happened, I had no idea, really, that people died skiing,” Amabile says. “We'd been skiing all our life and just had never heard that that was a possibility.”

Today Amabile represents the district that includes Eldora ski area, where longtime ski instructor Ron LeMaster died last month after a collision with a snowboarder. Just eight days later, another skier died in an accident at Eldora.

Amabile doesn’t think that enough work has been done to educate Colorado skiers about the risks of the sport.

And the sport just became riskier than ever, says attorney Jim Chalat, a ski law expert who points to a recent Colorado Supreme Court move that weakened the Ski Safety Act and its companion, the Passenger Tramway Safety Act of 1965.

According to the Ski Safety Act, which was passed by the Colorado Legislature in 1979 and then amended in 2006, people assume inherent dangers and risks when they ski — including snow conditions, terrain, impacts with clearly labeled man-made structures and collisions with other skiers. The law specifies, however, that “the term ‘inherent dangers and risks of skiing’ does not include the negligence of a ski area operator.”

But in December 2020, when the Colorado Court of Appeals issued its decision in Redden vs Clear Creek Skiing Corporation, it ruled that when skiers sign waivers, they agree not to hold ski areas responsible, even for negligence. And when the Colorado Supreme Court declined to hear an appeal of that decision in September, it essentially upheld it.

In 2017, Charlotte Redden was on a chairlift at Loveland Ski Area when a passenger in front of her fell; Redden was unable to safely disembark as a result, and she suffered a broken pelvis. She alleged negligence under the Ski Safety and Tramway acts by Clear Creek Skiing Corporation, which operates the area, because the lift was not slowed or stopped despite the hazard.
Clear Creek Skiing Corporation claimed that because Redden had signed a waiver in 2016 when she bought ski boots, she released the area from any liability. Redden was also in possession of an unsigned waiver on the back of her ticket the day of the accident.

Redden’s legal team argued that under traditional Ski Safety Act language, those waivers could be interpreted as excusing areas for the inherent risks of skiing but not from all forms of negligence, including lift-operation problems. But the Court of Appeals ruled that a signed waiver encompasses all risks, including negligence.

Chalat, who was not part of the case, says that reasoning goes against statutory mandates. “If it's a duty of care established by the Ski Safety Act, it can't be abrogated or nullified by a waiver,” he argues. Although Redden hadn’t signed her waiver that day, the court ruled that because one was printed on the back of her ticket, as is common practice, she agreed to it when she used the lift.

The Ski Safety Act "says ‘Nothing in this section shall be construed to limit’ negligence claims against the operators of ski lifts," the court determined. "It says nothing, however, about whether, wholly apart from the statute, the parties could or could not privately agree to waive such claims.”

Because the court determined that the legal obligation of care could be waived, “it effectively made a dead letter out of the Colorado Ski Safety Act and the Tramway Act,” Chalat says, arguing that there is no longer a legal remedy if a ski area fails to comply with ski safety standards.

In its ruling, the court said that if the Colorado General Assembly had intended to ensure that negligence can’t be waived, it would have stated that. As a result, Chalat suggests, new legislation would not make much of a difference, because the court decision has guaranteed that there will always be the waiver loophole.

"I think the waiver element we have in Colorado is not balanced well," says state senator Tammy Story, whose district covers Eldora. "It provides so much more coverage for the ski industry than it does for individual participants. There's a huge percentage of participants that enjoy skiing and snowboarding in Colorado and have no idea what they are signing on to, without physically signing on to it, when they purchase that lift ticket."

Despite such concerns, Chalat and fellow attorney Joseph Bloch say it’s difficult to get ski safety laws passed because the ski industry has such a big impact on the state's economy that lawmakers are wary to implement any form of regulation that might have even a slight impact on profits.

Bloch has been trying to persuade Colorado legislators to create stricter laws governing ski safety for several years. In 2020, Story co-sponsored a measure that Bloch endorsed (but thought could have done more): Ski Area Safety Plans and Accident Reporting. According to Story, the bill's goal was to collect data on accidents in order to analyze and advise further safety measures in ski areas. She compares it to efforts in the automotive industry, when data about car crashes led to the adoption of seat belts and airbags. "I don't think we can be dismissive of that," Story says. "Does it make me want to stop driving cars? No."

But the ski industry has been very resistant to making accident data publicly available, she adds, despite what she sees as advantages for areas that could publicize the improvements they make to promote safety. The bill didn't make it out of committee.

This year, Bloch’s firm has again submitted proposed legislation to the Colorado Trial Lawyers Association for consideration for the upcoming session. Bloch says that the CTLA had praised a similar proposal in the past, but didn't prioritize it because bills related to COVID took precedent. While Bloch isn't hopeful that ski safety will be a priority in 2022, he thinks the recent tragedies might make more Colorado residents interested in improving ski safety laws and persuade a lawmaker to sponsor the proposal. “It takes something bad to happen for people to take notice,” he says.

Bloch calls the proposed bill “The End of the Fox Guarding the Henhouse” — a metaphor for how the ski industry currently regulates its own safety measures — and says it focuses on requiring ski areas to install cameras in high-impact areas where accidents commonly occur, such as lifts, and also to be more transparent regarding injuries that occur on the slopes.

Ski areas are currently only required to report deaths.

Safe Slopes Colorado, which promoted last year’s failed bill, has attempted to catalogue ski injuries despite the lack of reporting from ski areas. During the 2018-2019 ski season, the organization determined that there were, on average, 66 ski-related trips to the emergency room each day. The Consumer Product Safety Commission's National Electronic Injury Surveillance System found that a total of 42,137 skiing- or snowboarding-related injuries were seen at hospitals across the country in 2020.

Colorado Ski Country, which represents most resorts in the state, did not respond to numerous requests for comment.

Story says she hasn't decided what will be on her legislative slate for early next year, but adds that a ski safety bill "isn't out of the realm of possibility."

Amabile says that she hasn't read Bloch's proposal, but generally supports a public-health-based approach to improving ski safety, including education about injuries and risks.

“I know they've done a lot with slow ski areas and signage and things like that, but I don't know that there's a lot of messaging about the inherent dangers, and I'd like to see more of that,” she says, adding that she would also like to see more ski patrol presence. “If you see a patrolman standing next to the ‘slow down’ sign, you slow down, but if you don't, then I think a lot of people don't slow down. I've even been guilty of that myself.”

That’s the reasoning behind Bloch’s video-camera proposal: If people know someone is watching, they might ski more slowly; if employees know that their work is being observed, they might be more attentive.

Amabile emphasizes that no one, not even the most experienced skiers, is invincible on the slopes — as LeMaster's death shows. She hopes for more information about the different ways that snowboarders and skiers navigate the slopes, and the different ways that experts and beginners ski. Education about how early-season slopes can be more dangerous would also be helpful, she says, since fewer open runs and poor snow conditions contribute to danger on the slopes.

The problem, according to Bloch, is that ski areas say safety is a priority, but they won’t make any changes to promote safety without the legislature requiring them to do so.

“If you're not responsible financially for the harm that you cause...there's no incentive to be safe,” Chalat agrees. “Liability breeds responsibility.”

But Amabile suggests that increasing liability for ski areas would likely be too punitive, and wouldn’t help the public understand safety risks in a productive way. And Story worries that given the economic hardships of the pandemic, most ski areas can't afford to embark on a big education project now.

There is one small move they could make, though. Amabile would like to see the waivers about safety displayed more prominently on tickets. Colorado law currently stipulates that if the fine print can be read without a special device, such as a magnifying glass, then it's large enough.