Is this hot dog dangerous? A Pitkin County, Colo. jury will have to decide.

Aspen Skiing Co. Sued Over Hot Dogs

Aspen, CO – The Aspen Daily News is reporting that Pitkin County District Court Judge Denise Lynch has ruled that a negligence lawsuit against Aspen Skiing Co. can proceed. The source of Aspen’s potential liability? A hot dog.

The plaintiff in the lawsuit – a Mr. Ryan Bradley – will get a chance to convince a jury that a hot dog was to blame his injuries. According to the article, Aspen’s tradition of having its lift attendants serve hot dogs to skiers on Wednesdays distracted lift attendants who failed to notice that the chair Bradley was about to board still contained a metal apparatus used by ski patrol for transporting toboggans. Bradley claims he was injured as a result and filed suit against the resort.

Ski resorts are shielded from liability by two things: statutes and contracts. Many states, including Colorado, afford broad statutory protections to ski resort operators. These laws (often “Ski Safety Acts”) essentially make skiers assume the risk of participating in the sport. Public policy favors allowing individuals to participate in snow sports, but lawmakers recognized that absent statutory protections, resorts’ insurance premiums would be unaffordable. Skiing would virtually cease to exist.

Is this hot dog dangerous? A Pitkin County, Colo. jury will have to decide.
Is this hot dog dangerous? A Pitkin County, Colo. jury will have to decide.

Resorts augment statutory protections with releases and waivers. Generally these are found on the back of lift tickets or contained in a season pass agreement. Between the two sources of protection, it is normally quite difficult to successfully sue a ski resort. In fact, Aspen sought to defend Bradley’s claim using this tried and true defense, alleging that his suit was barred by his season pass agreement in which he agreed to “waive, release, indemnify, defend and hold harmless” Aspen from “any and all claims of any sort whatsoever arising out of or related to [the] use of the facilities, ski area and lifts.”

However, the same ski safety acts that protects resorts also impose certain duties. All Colorado resorts must operate their aerial tramways and chairlifts in conformance with standards set forth in the Colorado Passenger Tramway Safety Act. Bradley claims that by having its lift attendants serve hot dogs instead of focusing on loading chairs, the resort violated the act. Aspen disagreed. Judge Lynch’s ruling paves the way for a jury to decide the question of fact.

The reason it is important to determine whether the resort violated the Passenger Tramway Safety Act is that a violation of the act is one of the narrow instances where a plaintiff can recover against a resort. While lawmakers may have been willing to make skiers assume the risks associated with the sport, they did not want to allow resorts to operate complex and potentially dangerous machinery in a negligent manner without consequence. The specter of lawsuits incentivizes resorts to maintain a proper standard of care. Additionally, resorts cannot get around the requirements of the Passenger Tramway Safety Act by having skiers waive its requirements or release the resort for violations. As Judge Lynch put it, “[p]arties may not privately contract to abrogate statutory requirements.”

As the article correctly notes, “an injury-causing violation by the ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board constitutes negligence [per se]” (internal quotations omitted). Consequently, the distinction between negligence and negligence per se becomes critical. Negligence claims against the resort are generally barred by the Ski Safety Act (or contracted away), while negligence per se claims are permitted where the resort has violated the Passenger Tramway Safety Act: a small distinction, with a huge difference.

Negligence requires a plaintiff to prove four elements, in short: duty, breach, causation, and damages. Making out a negligence claim can be difficult. It is a highly fact-specific inquiry. By comparison, negligence per se is a much easier claim to prove and thus is a favorite cause of action amongst plaintiffs’ lawyers. Negligence per se generally requires that: the defendant violated a statute; the statute was designed to protect health or safety; the defendant’s breach of the statute caused the kind of harm the law aims to prevent; and the claimant is a member of the group of people that the safety law was created to protect.

The reason the case is headed to trial is the question of whether or not Aspen Skiing Co.’s actions violated a statute, the Colorado Passenger Tramway Safety Act, by asking its lift attendants to serve patrons hot dogs.  A quick scan of Colorado case law shows some support for Bradley’s claim even under common law negligence principles. In Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 441 P.2d 658 (1968), the court required a higher degree of care in operating a ski tow, because the lift operator was essentially in the position of a common carrier; a skier has little or no control over his own movements while riding a chairlift or gondola and must necessarily depend on the operator for his safe passage. While Bagnoli suggests an outcome favorable to Bradley, it should be noted that the case was decided under a slightly different statutory scheme. The current Ski Safety Act of 1979 was enacted 11 years after the decision.

A heightened standard of care would tip the scales in Bradley’s favor by requiring Aspen to prove it was not negligent. Based on the foregoing it appears Bradley might well prevail on a negligence per se claim.

Author David B. Cronheim, Esq. is the Chief Legal Correspondent for First Tracks!! Online, an attorney at Norris, McLaughlin & Marcus, PA in Bridgewater, N.J., and author of the ski law blog – Ski, Esq. Please feel free to contact the author at DBCronheim@nmmlaw.com. The opinions expressed herein are the author’s own and do not necessarily reflect the opinions of First Tracks!! Online Media or its principals.

2 thoughts on “Aspen Skiing Co. Sued Over Hot Dogs”

  1. speaking of weiners:
    here’s a little history from Aspen Skollie from Feb 5th, 2010:

    This is the story about a small town folk singer and his “anthem for local working people.” It’s about corporate bullying, irony and karma. It’s the story of “Big Money.”

    Dan Sheridan, a 20-plus year Aspen local, released an album in 2003 that included a song called “Big Money.” While the song has been popular among some locals, Sheridan has never gained much notoriety past the Aspen corridor of Highway 82. That is until recently. On January 1, 2010, Sheridan played a gig at Sneaky’s Tavern in the new and incomplete Snowmass Base Village. [Yesterday’s front page story was: Skico accused of fraudulent actions in Base Village condo sales. It was written by local author Brent Gardner-Smith.] A group in the small crowd requested “Big Money” and Sheridan obliged them by playing the song. Sheridan said he had noticed “dudes in full-length fur coats and cowboy boots” but that he “got the feeling that everyone wanted to hear it.”

    While no one ever heard from the man-fur sporting tourists, there was apparently one person in the crowd who did not want to hear it. An Aspen Skiing Company Vice President complained to the Director of Food and Beverage, and on the following Monday Sheridan was fried. By that Wednesday the Aspen Times published a story detailing the events, and Jeff Hanle, the Skico’s spokesman, was quoted as saying, “An artist can express himself how he wants. But that doesn’t mean we have to provide him the stage.” Suddenly everybody was talking about “Big Money.”

    The newspaper was flooded with letters to the Editor with such headlines as “Censorship by Skico,” “Downright Pathetic,” and “Boycott Skico,” and by Thursday the Aspen Skiing Company was calling Sheridan to say that he could come back and play any song except for “Big Money.” Aspen Daily News printed the story “Skico welcomes Sheridan back without “Big Money””. Hanle called the incident a “PR debacle” and said that he hoped Skico could put the incident behind them and move on.

    Unfortunately for Skico, that was just the beginning. More letters poured into both Aspen newspapers,… and even Pitkin County Commissioner Jack Hatfield dissed the Skico for all to see on Grassroots TV. The original story became the most read article on the Aspen Times website, and it was picked up by Denver’s Westword.

    Skico moved on and decided to ride the holiday wave by promoting Aspen Snowmass in major cities like Chicago, San Francisco, and L.A. The company took its first billboard ads since 1958 with the headline “It’s Time to Fly” featuring hometown sweetheart Gretchen Bleiler. However, the story would not die.

    While the Skico was posting billboards along the 405 in L.A., the L.A. Times was printing an article titled “Folk song strikes a touchy chord in Aspen”, which can now be found on their website under Home/Collections/Wealthy People. Instead of giving Sheridan a quiet warning and letting a couple of urban cowboys take offense at a small show, Skico officials alienated Aspen locals and undermined their own major advertising campaign. Corporate karma can be a real bi#ch.

    The story finally reached Gawker: “Take heart, hippie communist folk singer Dan Sheridan… you are quite correct. Big money ruins everything. And that’s gonna suck for the rich, if they ever leave their cocaine-and-expensive-hooker-strewn Jacuzzis.”

    The good news is that Dan Sheridan is now a folk hero, and everyone wants to hear “Big Money.” Still, is an apology authentic if it only comes after you have been called out? Would Sheridan still have a job if the Aspen Times had never printed that story? No one at Skico has yet to take responsibility for the firing of Dan Sheridan. There is no transparency and no accountability, and perhaps that is why this story continues to play.

    You have to wonder what is going on at Aspen Skiing Company. In a new story Curtis Wackerle for the Aspen Daily News ask why Skico has stopped delivery of the newspaper to its hotel properties. Hanle is quoted as saying that the amount of newsprint on display at the properties “was just overwhelming” and that it had nothing to do with the Daily News running the story “Skico’s green efforts didn’t include Residences at The Little Nell.”

    “An artist can express himself how he wants. But that doesn’t mean we have to provide him the stage” sounds a lot like “A newspaper can say what it wants, but that doesn’t mean we have to provide it the circulation” or advertise with it. It’s not so much a bullet to the Daily News as it is a sucker punch. Skico fail.

    -Skollie Life

  2. ore on weiners and lawsuits: Aspen Skiing faces another NLRB complaint…yet again: http://www.aspendailynews.com/section/home/155327

    From occupy aspen’s facebook page: “Freud is not far off: It all goes back to the playground & Aspen is ….1 big junior high. Boys will be boys and swagger is Jungian in nature, but it needs to be backed up by reality. Warning: Lewd Texas language to follow. The girls in Ski School always used to gossip about how well James Cohen [the Aspen Ski Instructor who filed complaints against Skico including threats and coercion] was blessed by God in the manhood dept. In other words, James Cohen is hung like a horse. The CEO of Skico, not so much. Whereas I worked out The Snowmass Club Aspen for 10 years where I would occasionally see the CEO of Skico, who bless his heart, is a bully with a small tootsie roll.”-lee mulcahy phd

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