                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                               JUN 30 1998
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                           PATRICK FISHER
                                                                                   Clerk


 ERIC BAYER,

               Plaintiff - Appellant,                       No. 96-1269
          v.                                               (D. Colorado)
 CRESTED BUTTE MOUNTAIN                               (D.C. No. 94-M-2958)
 RESORT, INC.,

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before ANDERSON, LUCERO, and MURPHY, Circuit Judges.



      This appeal involves the standard of care governing the duty owed by ski

lift operators in Colorado to users of those lifts, like appellant Eric Bayer, during

the winter season. After oral argument, we determined that Colorado law

contained no controlling precedent that would guide us in resolving that issue. By

order dated April 14, 1997, we certified to the Colorado Supreme Court the

following question:


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
             What standard of care governs the duty owed by ski lift
      operators in Colorado to users of those lifts in the winter season?
      Separately, and more particularly, does the Colorado Passenger
      Tramway Safety Act and/or the Colorado Ski Safety and Liability Act
      preempt or otherwise supersede the pre-existing Colorado common
      law standard of care governing the duty owed by ski lift operators to
      users of those lifts in the winter season?

      The Colorado Supreme Court has now answered the certified question,

holding that “[a] ski lift operator must exercise the highest degree of care

commensurate with the lift’s practical operation, regardless of the season.” Bayer

v. Crested Butte Mountain Resort, Inc., No. 97SA145, 1998 WL 251485 at *1

(Colo. May 18, 1998), modified on denial of rehearing, June 22, 1998. The

Colorado Supreme Court has denied the petition for rehearing in the case.

Accordingly, the decision of the federal district court is vacated and the case is

remanded to the district court for further consideration in light of the Colorado

Supreme Court’s “Certified Questions Answered,” a copy of which is attached to

this order and transmitted with this order to the United States District Court for

the District of Colorado.

                                        ENTERED FOR THE COURT


                                        Stephen H. Anderson
                                        Circuit Judge




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