Archive for the ‘Colorado’ Category

Pass Interference – Woman Injured Chasing Frisbee Thrown From Stage; Claims Barred as a Matter of Law (MN)

November 2, 2015

Strelow v. Winona Steamboat Days Festival Association (Minnesota)
(not published)

Plaintiff attended a festival organized by the defendant.  During a break in the music, representatives from a local radio station went on stage and began throwing t-shirts and Frisbees from the stage.  The Frisbees had tickets to the local zoo attached to them.  Plaintiff gestured as if she wanted to catch a Frisbee and one of the people on stage threw one in her direction, but it veered off course.  Plaintiff took took four to six steps diagonally and slightly backwards with her arms in the air, trying to catch it.  However, plaintiff fell down, rolled against a curb, and fractured her shoulder.

Plaintiff and her husband filed a lawsuit against the defendant event organizer, alleging that defendant failed to maintain a safe area and failed to warn plaintiff of a hazardous condition on the premises.  Plaintiff contended that she fell as a result of tripping on electrical cords that were “black and rubbery” and “bigger than extension cords.”  She indicated that she did not know whether they were connected to anything, she said she did not see them before she fell, and she had not previously walked in the area of the incident.  Plaintiff was unable to find any witnesses to her fall.

Defendant filed a motion for summary judgment, asserting (1) no evidence of a dangerous condition caused by defendant existed, (2) any alleged dangerous condition was open and obvious, (3) the defendant did not owe the plaintiff a duty because it had no actual or constructive notice of the alleged condition, and (4) plaintiff’s claims were barred by primary assumption of risk.  The trial court granted defendant’s motion, finding that plaintiff “failed to establish a prima facie case of negligence because no evidence was presented that any cords ran over the blacktop” in the area of the incident.  Plaintiff appealed.

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Snowmobile Wins Again – Claims of Injured Ski Racer Survive Motion Based on Waiver and Assumption of Risk Statutes (CO)

October 29, 2015

Schlumbrecht-Muniz v. Steamboat Ski and Resort Corp. (Colorado)
(trial court disposition)

Plaintiff was a member of the Sarasota, Florida Ski Team.  She traveled to the Steamboat Springs Ski Resort in Colorado to participate in ski races.  After finishing her second race and exiting the race course, plaintiff skied down a trail and headed toward the ski lift.  She attempted to ski past the lift to a picnic area to meet up with other racers.  However, she collided with a snowmobile that was parked near the lift.  Plaintiff sued the ski resort alleging (1) common law negligence in parking the snowmobile in a dangerous, high-traffic area, and (2) negligence per se under the Colorado Ski Safety Act (“SSA”) by failing to mark and pad the snowmobile.

The defendant moved for summary judgment, arguing (1) that the exculpatory clause contained in the race participation agreement signed by the plaintiff prior to her participation barred the plaintiff’s claims, (2) the common law negligence claim was barred by the SSA (“no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing”), and (3) the negligence per se claim failed because the SSA does not apply under the circumstances (i.e., with regard to a parked snowmobile).

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Beyond Control – Woman Injured on Costa Rican Bicycle Tour; Claims Survive Motion to Dismiss (CO)

October 15, 2015

Steinfeld v. EmPG International, LLC (Colorado)
(trial court disposition)

A woman fell off her bicycle during a bicycle your vacation in Costa Rica.  She and her husband filed a lawsuit against the bicycle tour company.  The lawsuit was filed in Pennsylvania where the plaintiffs resided, but the Pennsylvania District Court held that is lacked personal jurisdiction over the defendant tour company that was based in Colorado.  The defendant filed a motion to dismiss based in large part on the assumption of risk and waiver of liability forms (“Releases”) signed by the plaintiffs prior to their participation in the tour.  However, the Colorado District Court applied Colorado law (as having the “most significant relationship” to claims), denied the motion, and allowed the case to proceed to discovery, finding that the Releases did not bar all of the plaintiffs claims.  The Court explained:

“A waiver implicitly or explicitly is grounded on warranties of fitness, and assumption of risk can only take place when the risk is inherent and clearly foreseeable.  The Complaint in this case abounds with allegations of misrepresentations and abandonment of good faith attempts to fulfill the obligations of the contract.”

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Unintended Consequences – Claims of Woman Injured on ATV Tour Not Barred by Prior Jeep Tour Waiver (CO)

October 1, 2015

Soucy v. Nova Guides, Inc. (Colorado)
(trial court disposition)

Plaintiff and her family, including her mother and two younger sisters, were vacationing in Vail, Colorado.  On July 9, 2012, plaintiff went on jeep tour, and on July 11, 2012, she went on an ATV tour.  Both tours were operated by the defendant tour guide company.  During the ATV tour, plaintiff’s ATV overturned, causing her personal injury, and plaintiff thereafter filed a negligence lawsuit.  The defendant filed a motion for summary judgment asserting that the plaintiff’s claims were barred by a waiver of liability that the plaintiff has signed prior to her participation.  However, the U.S. District Court ultimately held that there was a triable issue of fact as to the existence of a waiver of liability as between plaintiff and defendant in relation to the ATV tour.  The facts are a little convoluted.

Prior to participating in the jeep tour on July 9th, plaintiff signed a “Lease Agreement and Waiver of Liability” (the “Waiver”) on which a handwritten check mark appeared next to “Jeep tour.”  Nothing was marked next to the other options on the agreement, which were “ATV,” “Mtn. Bike,” and “Hiking.”  However, plaintiff did not sign another Waiver prior to taking part in the ATV tour on July 12th.  Plaintiff’s mother signed a Waiver for the ATV tour, and she listed plaintiff and her sisters as participants in the tour, but the mother did not have the capacity to sign the Waiver for the ATV tour on plaintiff’s behalf.

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Unreasonable Eviction – Colorado Supreme Court Finds That Hotel Owed a Duty to Evicted Drunk Guests (CO)

May 6, 2015

Westin Operator, LLC v. Groh (Colorado)

The issue raised by the case (an issue of first impression for the Supreme Court of Colorado) was: “What duty of care, if any, does a hotel owe to a guest during a lawful eviction?”

Following a late night out in downtown Denver, the plaintiff brought a group of friends back to a hotel room she had rented at the hotel operated by the defendant.  Thereafter, security guards from the hotel confronted the group about the noise level coming from their room, and the hotel eventually evicted them from the premises.  Plaintiff and her group were evicted “even though [they] advised the guards that they were drunk and could not drive.”  One of the members of the party asked if he could stay in the lobby to wait for a taxicab because it was cold outside, but the security guarded refused.  Plaintiff and six others got into plaintiff’s car, with a drunk driver behind the wheel.  Fifteen miles later, the car rear-ended another car.  The resulting crash killed a third party and left the plaintiff in a persistent vegetative state with traumatic brain injuries.

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Can’t Catch a “Brake” – Woman Injured on Foreign Bicycle Tour Forced to Litigate Away from Home (PA)

April 20, 2015

Steinfeld v. EMPG International (Pennsylvania)

The Pennsylvania plaintiffs were injured during a trip to Costa Rica.  Prior to leaving for Costa Rica, the plaintiffs visited the website of defendant EMPG International, LLC (a Colorado limited liability company) and consummated an online transaction to rent bicycles and sign up for a bicycle tour while in Costa Rica.  The bicycle equipment was allegedly not in the condition originally promised by the defendant, and one of the plaintiffs was injured during the tour due to faulty brakes on the bicycle.  The plaintiffs filed a federal lawsuit in the U.S. District Court for the Eastern District of Pennsylvania, alleging negligence, negligent hiring and retention, vicarious liability, joint enterprise, agency, breach of contract, violation of the Pennsylvania Consumer Protection Law, fraud, negligent misrepresentation, and loss of consortium.

The defendant filed a motion to dismiss the action based on a lack of personal jurisdiction and a failure to state a claim under which relief could be granted.  Following a pretrial conference, the Court entered an order permitting the parties to conduct discovery regarding jurisdiction, and the court required the parties to submit a joint stipulation of facts with respect to jurisdiction so that it could rule on the defendant’s motion to dismiss.  After reviewing the evidence and stipulated facts, the Court found that the “plaintiffs’ cause of action did not arise out of or relate to the company’s contacts with Pennsylvania.”  However, because the defendant was subject to general personal jurisdiction in Colorado, the Court transferred the case to the U.S. District Court for the District of Colorado.

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And the Case Rides Off Into the Sunset

September 18, 2012

Eburn v. Capitol Peak Outfitters, Inc. (Colorado)
(An inexperienced rider was injured during a horseback ride and she sued the facility and equipment provider for negligence; the court found that the exculpatory agreement signed by the plaintiff precluded liability.)

Prior to her participation in a horseback ride, the plaintiff signed two documents, a “Participant Release of Liability and Assumption of Risk Agreement” and a “Protective Headgear Refusal.”  The release document addressed both the inherent risks associated with the activity and included a release of liability for the potential negligent conduct of the defendant.  The District Court denied the plaintiff’s motion for partial summary judgment and granted the defendant’s cross motion for partial summary judgment based on the exculpatory document.

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Skier v. Snowmobile

May 19, 2009

Robinette v. Snowmass Ski Area (Colorado)
(Federal District Court Rules in Favor of Ski Resort in a Collision Case Based Upon Release)

The Aspen Daily News published an article today discussing the recent decision of a U.S. District Court Judge in Denver Colorado. The article can be found here: http://www.aspendailynews.com/section/home/134580

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