                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                         PUBLISH                     June 10, 2019
                                                                  Elisabeth A. Shumaker
                     UNITED STATES COURT OF APPEALS                   Clerk of Court

                                   TENTH CIRCUIT



 BRENDA M. PATTERSON; TIMOTHY
 WELKER,

              Plaintiffs - Appellants,

 v.                                                       No. 18-1008

 POWDERMONARCH, LLC, a Colorado
 limited liability company,

              Defendant - Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                    (D.C. No. 1:16-CV-00411-WYD-NYW)


Douglas P. Dowd of Dowd & Dowd, P.C., St. Louis, Missouri, for Plaintiffs-Appellants.

Brian A. Birenbach (Kimberly A. Viergever with him on the brief) of The Rietz Law
Firm, L.L.C., Dillon, Colorado, for Defendant-Appellee.


Before HOLMES, McKAY, and MORITZ, Circuit Judges.


McKAY, Circuit Judge.


      Plaintiff Brenda Patterson and her husband, Plaintiff Timothy Welker, appeal from

the district court’s entry of summary judgment in favor of Defendant PowderMonarch,
LLC, on their claims of negligence and loss of consortium based on injuries Ms. Patterson

allegedly sustained at Defendant’s ski resort. Because the district court correctly held that

these claims are barred by an exculpatory agreement included on Ms. Patterson’s ski lift

ticket, we affirm.

                                               I.

       On March 18, 2014, Ms. Patterson made an online payment of $57.00 for a ski lift

ticket to use at Monarch Mountain, a ski resort owned and operated by Defendant

PowderMonarch. A lift ticket is required for any non-season pass holder at Monarch

Mountain to use the resort’s ski facilities, such as trails and lifts. After paying for her lift

ticket, Ms. Patterson received an email confirmation, which thanked her for her

“reservation” and informed her that there would be “NO REFUNDS for any cancellations

under 48 hours.” (Appellants’ App. at 106–07.) Ms. Patterson testified that she could not

print her lift ticket at home, but “had to pick it up when [she] got there.” (Id. at 116.)

       On March 20, 2014, Ms. Patterson went to Monarch Mountain with her husband

and other family members. At the resort, either she or her husband physically picked up

the ticket she had paid for two days earlier. The front of this lift ticket contained an

adhesive sticker, designed to be removed and adhered to a wicket on the ticket holder’s

clothing, on which Ms. Patterson’s name, the ticket type, and a bar code were printed.

The back of the lift ticket, like all lift tickets issued by Monarch Mountain on March 20,

2014, contained the word “WARNING,” followed by seven paragraphs printed in a small


                                               -2-
font. (Id. at 81.) The first and fourth paragraphs read as follows:

        Under Colorado law, a skier1 assumes the risk of any injury to person
        or property resulting from any of the inherent dangers and risks of
        skiing and may not recover from any ski area operator for any injury
        resulting from any of the inherent dangers and risks of skiing,
        including: Changing weather conditions; existing and changing snow
        conditions; bare spots; rocks; stumps; trees; collisions with natural
        objects, man-made objects, or other skiers; variations in terrain; and
        the failure of skiers to ski within their own abilities.

              ....

        In consideration and exchange for allowing Holder to use the ski area
        facilities, Holder agrees to ASSUME ALL RISKS, whether or not
        described above, known or unknown, inherent or otherwise, associated with
        the Holder’s participation in the ACTIVITY. Additionally, Holder agrees
        NOT TO SUE Monarch Mountain, PowderMonarch LLC, its affiliated
        organizations and companies, the United States Forest Service, and all of
        their respective insurance carriers, agents, employees, representatives,
        assignees, officers, directors, and shareholders (each hereinafter a
        “RELEASED PARTY”). Holder agrees to HOLD HARMLESS AND
        RELEASE any RELEASED PARTY from ANY AND ALL liability
        and/or claims for injury or death to persons or damage to property arising
        from Holder’s engagement in the ACTIVITY, including those claims
        based on any RELEASED PARTY’s alleged or actual NEGLIGENCE
        or BREACH of any express or implied WARRANTY.

(Id.)

        Monarch Mountain’s lift tickets are designed so the ticket holder must interact

with this “WARNING” side by peeling it away from the adhesive front of the ticket

before the ticket may be used to access the resort’s ski facilities. Ms. Patterson testified

that she placed the lift ticket on her person, but she did not read the tear-away back of the

        1
         The second paragraph of the agreement sets forth a broad definition of “skier,” which
includes snowboarders and sledders, among others. (Appellants’ App. at 81.)

                                               -3-
ticket before or after doing so.

          During the course of that day’s activities, Ms. Patterson and her son fell as they

were unloading from a chairlift. While Ms. Patterson was still lying on the ground, a

skier from the next chairlift unloaded from the lift and then collided with Ms. Patterson.

Her ski boot hit Ms. Patterson’s leg, causing an injury to Ms. Patterson’s saphenous nerve

that has required extensive medical treatment.

          Plaintiffs filed suit in the U.S. District Court for the District of Colorado based on

federal diversity jurisdiction. See 28 U.S.C. § 1332. In their complaint, Plaintiffs each

raised one claim against Defendant PowderMonarch: Ms. Patterson brought a claim of

negligence, and Mr. Welker brought a derivative claim of loss of consortium.

          The district court held that Defendant was entitled to summary judgment for two

separate reasons: (1) application of the release of liability from the back of the lift ticket,

and (2) preemption under Colorado’s premises liability statute, Colo. Rev. Stat. § 13-21-

115. Plaintiffs appeal, arguing both that the district court erred in granting summary

judgment in favor of Defendant and that the court should have construed their complaint

to raise a non-preempted statutory cause of action under the Ski Safety Act, Colo. Rev.

Stat. § 33-44-101 et seq., or Passenger Tramway Safety Act, Colo. Rev. Stat. § 25-5-701

et seq.

                                                II.

          We review the district court’s summary judgment decision de novo, applying the


                                                -4-
same standards as the district court. Pepsi-Cola Bottling Co. of Pittsburg, Inc. v.

PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005). Because this is a diversity action,

we apply the substantive law of Colorado to the legal questions at issue in this case. See

id. In applying Colorado law, we “must follow the most recent decisions of the state’s

highest court.” Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665–66 (10th Cir. 2007).

“Of course, by the principles of stare decisis, we are also bound by our own prior

interpretations of state law.” Kokins v. Teleflex, Inc., 621 F.3d 1290, 1295 (10th Cir.

2010). “Thus, when a panel of this Court has rendered a decision interpreting state law,

that interpretation is binding on district courts in this circuit, and on subsequent panels of

this Court, unless an intervening decision of the state’s highest court has resolved the

issue.” Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003). Where no

controlling decision exists, we must attempt to predict what the Colorado Supreme Court

would do, “seek[ing] guidance from decisions rendered by lower courts in the relevant

state, appellate decisions in other states with similar legal principles, district court

decisions interpreting the law of the state in question, and the general weight and trend of

authority in the relevant area of law.” Wade, 483 F.3d at 666 (internal quotation marks

and citations omitted).

       Plaintiffs argue that there are two reasons why the lift ticket’s exculpatory

language should not bar their claims in this case: (1) the addition of a release of liability

two days after Ms. Patterson paid for her ticket constituted a contract modification for


                                               -5-
which there was no additional consideration, and (2) the exculpatory agreement is invalid

under Colorado law because it was neither fairly entered into nor expressed in clear and

unambiguous language.2 We consider each of these arguments in turn.

       In Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1109 (10th Cir. 2002), we

considered the question of whether an exculpatory agreement that is received after an

individual has already paid for a recreational activity should be considered a contract

modification requiring additional consideration under Colorado law. In that case, the

plaintiff purchased a gondola lift ticket and a bike rental coupon at the base of a

mountain. Id. at 1107. After taking the gondola to the top of the mountain, he went to

the bike rental area, where he received his bicycle and was presented with a rental

agreement containing exculpatory language. Id. He signed this agreement without

reading it completely, then was injured while riding the bicycle down the mountain. Id. at

1107–08. In his diversity suit against the recreational company, he argued that the signed

rental agreement constituted a modification of the initial agreement, for which additional

consideration was required, because he did not receive it until after he had already paid

for the bicycle. Id. at 1109.

       We rejected this argument in Mincin, holding that the rental agreement did not

constitute a modification to the initial agreement and thus no additional consideration was

       2
          Like Colorado courts, we treat the terms “exculpatory agreement” and “release of
liability” as “interchangeable.” See McShane v. Stirling Ranch Prop. Owners Ass’n, 393 P.3d
978, 984 (Colo. 2017) (citing Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 468–69
(Colo. 2004)).

                                             -6-
required. Id. We noted that Colorado courts have characterized a change to an agreement

as a contract modification “[w]here there is a sufficient time lapse,” such as “several

months,” or “eight months.” Id. (citing H & W Paving Co. v. Asphalt Paving Co., 364

P.2d 185, 186 (Colo. 1961); Hoagland v. Celebrity Homes, Inc., 572 P.2d 493 (Colo.

App. 1977)). In Mincin, however, “the two events were separated by a matter of minutes

and [we]re better considered part of the same transaction.” Id. To support this holding,

we quoted the Minnesota Court of Appeals’ conclusion that “an exculpatory agreement

signed after a fee to participate in a recreational activity has been paid is part of the same

transaction and is therefore enforceable without additional consideration other than

permission to participate in the activity.” Id. (quoting Beehner v. Cragun Corp., 636

N.W.2d 821, 829 (Minn. Ct. App. 2001)); see also Beehner, 636 N.W.2d at 825, 829

(enforcing exculpatory agreement signed by plaintiff the day after she purchased ticket

for horseback ride). We further cited to the Washington Court of Appeals’ holding that a

“release signed by scuba diving student after payment of fee was an integrated part of the

whole transaction and was thus supported by original consideration.” Mincin, 308 F.3d at

1109 (citing Hewitt v. Miller, 521 P.2d 244, 248 n.3 (Wash. Ct. App. 1974)).

       Although the separation between the payment and the receipt of the exculpatory

agreement in this case is longer than in Mincin—two days versus “a matter of minutes,”

this distinction does not lead us to a different result here. As an initial matter, we note

that the two days at issue here are significantly closer to the minutes at issue in Mincin


                                              -7-
than the months at issue in Hoagland and H & W Paving, and we are not persuaded that

the Colorado Supreme Court would treat two days as a sufficient amount of time that this

exculpatory agreement must be characterized as a contract modification.

       Moreover, even aside from the question of timing, we are persuaded based on the

nature and circumstances of the transaction that the payment and exculpatory agreement

here, as in Mincin, are better viewed as part of the same transaction, rather than as a

subsequent contract modification. This case, like Mincin, involves pre-payment for a

recreational activity, followed by receipt of an exculpatory agreement before the

recreational activity begins. In Mincin, we suggested that the Colorado Supreme Court

would follow other state courts’ reasoning that an “exculpatory agreement signed3 after a

fee to participate in a recreational activity has been paid is part of the same transaction.”

308 F.3d at 1109 (quoting Beehner, 636 N.W.2d at 829); cf. Espinoza v. Ark. Valley

Adventures, LLC, 809 F.3d 1150, 1153 (10th Cir. 2016) (noting that Colorado has

adopted a “relatively permissible public policy toward recreational releases,” “a policy

choice that, no doubt, means some losses go uncompensated but . . . also promotes the



       3
          Although Ms. Patterson did not sign the exculpatory agreement at issue in this case, the
parties do not dispute that Colorado law permits contracts to be formed without the signatures of
the parties bound by them. See Yaekle v. Andrews, 195 P.3d 1101, 1107 (Colo. 2008) (noting
that “common law contract principles . . . allow for the formation of contracts without the
signatures of the parties bound by them”); see also Feeney v. Am. W. Airlines, 948 P.2d 110, 113
(Colo. App. 1997) (“[N]o such signature or other method of acknowledgment was required to
accept the . . . terms. Plaintiffs accepted the terms of the travel contract by accepting and using
the passenger tickets.”). Plaintiffs do not rely on the lack of a signature to distinguish this case
from Mincin, but rely solely on the difference between the minutes in Mincin and the days here.

                                                -8-
output and diversity of recreational services consumers may enjoy”). Furthermore, the

specific circumstances in this case support the conclusion that the release of liability “was

an integrated part of the whole transaction,” Mincin, 308 F.3d at 1109 (citing Hewitt, 521

P.2d at 248 n.3). In this case, as in Mincin, the facts indicate that the plaintiff was aware

the transaction was not complete at the time of payment: In Mincin, the plaintiff was

“instructed to redeem” a “bike rental coupon” when he reached the rental area at the top

of the mountain, 308 F.3d at 1107, while here Ms. Patterson’s pre-payment for the lift

ticket gave her only a ticket “reservation,” not the ticket itself, and she knew the actual

ticket had to be picked up from the resort (Appellants’ App. at 106–07). Thus, as in

Mincin and the recreational cases cited therein, Ms. Patterson’s receipt of her lift ticket on

March 20 is “better considered part of the same transaction,” 308 F.3d at 1109, as her

payment for the ticket reservation on March 18. We accordingly hold that no additional

consideration was required for the lift ticket’s exculpatory language to be enforceable.

       We turn then to Plaintiffs’ argument that the lift ticket’s exculpatory agreement is

invalid under Colorado law because it was neither fairly entered into nor expressed in

clear and unambiguous language.

       Colorado courts consider four factors to determine whether an exculpatory

agreement is valid: “(1) the existence of a duty to the public; (2) the nature of the service

performed; (3) whether the contract was fairly entered into; and (4) whether the intention

of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623


                                             -9-
P.2d 370, 376 (Colo. 1981). “Even more specifically, the Colorado Supreme Court has

explained that the first two Jones factors focus on public policy questions—asking

whether ‘the party seeking exculpation is engaged in performing a service of great

importance to the public, which is often a matter of practical necessity.’” Espinoza, 809

F.3d at 1153 (quoting Jones, 623 P.2d at 376) (brackets omitted). “Meanwhile, the latter

two factors focus on more party- and contract-specific questions—asking whether the

release was fairly obtained and clearly and unambiguously expressed.” Id. “If the release

satisfies both sets of questions,” and if it is otherwise a valid contract, “it may be

enforced.” Id.

       It is undisputed that the exculpatory agreement here satisfies the first two factors

of the Jones test, which are generally inapplicable to “‘businesses engaged in recreational

activities.’” Id. (quoting Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo.

2004)). However, Plaintiffs contend that the release of liability was neither fairly entered

into nor expressed in clear and unambiguous language, and they therefore argue that it is

unenforceable under Jones.

       “A contract is fairly entered into if one party is not so obviously disadvantaged

with respect to bargaining power that the resulting contract essentially places him at the

mercy of the other party’s negligence.” Hamill v. Cheley Colo. Camps, Inc., 262 P.3d

945, 949 (Colo. App. 2011). In Espinoza, we held that an exculpatory agreement for a

rafting activity was “fairly entered into” where the plaintiff signed “a document titled in


                                              -10-
part ‘RAFTING WARNING,’” which detailed several hazards of the recreational activity,

added that this description of risks was not complete, and provided that the signer

irrevocably and unconditionally released, discharged, and agreed not to sue the company

for any and all claims and causes of action that might arise. 809 F.3d at 1156–57. We

reasoned that “Colorado courts have repeatedly emphasized that individuals engaged in

recreational activities are generally expected to read materials like these, and because

recreational businesses do not provide ‘essential’ services of ‘practical necessity’

individuals are generally free to walk away if they do not wish to assume the risks

described.” Id. at 1157. “Indeed, Colorado courts and this court have consistently found

releases provided at the outset of a recreational activity and containing language very

much like the one now before us sufficient as a matter of law to supply a fair and full

warning within the meaning of the latter two Jones factors.” Id. at 1157–58.

       Plaintiffs argue that the exculpatory agreement in this case was not fairly entered

into due to the fact that Ms. Patterson’s payment for the lift ticket was nonrefundable,4

and thus she was not “free to walk away,” id. at 1157, because she would have forfeited

the $57 she paid for her lift ticket, plus the travel costs she had incurred to reach the

resort, if she had chosen not to accept the release of liability. However, it is clear in



       4
         The record does not disclose when Ms. Patterson arrived at the resort, and thus it is
impossible to determine from the record whether or not Ms. Patterson’s receipt of her ticket on
March 20 fell within the forty-eight-hour refund window following her payment for the ticket on
March 18. We assume for purposes of this appeal that Ms. Patterson would have been unable to
obtain a refund of her payment by the time she received the actual lift ticket on March 20.

                                             -11-
context that our decision in Espinoza used the term “free to walk away” to explain that an

individual engaging in a recreational activity, unlike an individual who seeks to obtain

housing or other necessities of life, is not constrained to participate and accordingly may

opt out of an activity if he is unwilling to accept exculpatory terms. See id.; see also Heil

Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 781, 784 (Colo. 1989) (noting that

“exculpatory agreements between employer and employee, and between common carriers

or public utilities and members of the public are generally held invalid” because of the

“obvious disadvantage in bargaining power,” while exculpatory agreement relating to

horseback riding did not implicate similar concerns and was accordingly enforceable

(internal quotation marks omitted)). Plaintiffs do not cite to a single Colorado case—or

federal case applying Colorado law—that would support Plaintiffs’ interpretation of “free

to walk away” to mean free from all costs, rather than free from compulsion or coercion.

       To the contrary, our cases have upheld exculpatory agreements for recreational

activities even where the facts would suggest that the individual might well have lost

money if she had chosen not to engage in the activity upon receipt of the exculpatory

agreement. For instance, in Mincin, the plaintiff did not receive the exculpatory bicycle

rental agreement until after he had already paid for the bicycle rental and taken a paid

gondola lift to the rental area at the top of the mountain. 308 F.3d at 1107. However,

these previously incurred costs did not factor into our analysis in that case because the

plaintiff was not compelled to continue with his previous plan of engaging in the


                                            -12-
mountain biking activity when he was given the exculpatory rental agreement, nor was he

otherwise coerced into signing, and this was sufficient for the agreement to be considered

fairly entered into under Colorado law. See id. at 1111. We have found no cases from

either this court or from a Colorado court suggesting that the third Jones factor can only

be satisfied if an individual would have been able to back out of an optional activity

without incurring any costs; rather, all of the pertinent authorities indicate that this factor

will generally be satisfied where the contract relates to a non-essential recreational

activity, absent evidence of unusual circumstances such as incompetency. See Espinoza,

809 F.3d at 1157 (citing Chadwick, 100 P.3d at 469); see also, e.g., Hamill, 262 P.3d at

949–50 (holding that exculpatory agreement for horseback riding was fairly entered into

“[b]ecause horseback riding is not an essential activity,” and thus the participant’s mother

“was not ‘at the mercy’ of [the recreational company’s] negligence when signing the

agreement”).

       Plaintiffs cite to Stone v. Life Time Fitness, Inc., 411 P.3d 225, 229 (Colo. App.

2017), in which the Colorado Court of Appeals held that a fitness club’s exculpatory

agreement was fairly entered into because “[n]othing in the record indicate[d] that [the

plaintiff] could not have taken her business elsewhere and joined a different fitness club

or recreation center,” nor was there “any other evidence that the parties’ relative

bargaining strengths were unfairly disparate so as to weigh against enforcing the

Agreement.” Plaintiffs argue that the Stone court thus recognized that an agreement may


                                              -13-
be invalid as unfairly entered into whenever there is “any other evidence that the parties’

relative bargaining strengths were unfairly disparate,” id., and they argue that the

nonrefundable nature of the lift ticket in this case satisfies that test. However, nothing in

Stone suggests that the appellate court intended to alter Colorado’s rule that recreational

contracts generally do not give rise to an obvious disadvantage in bargaining power, nor

does Stone support Plaintiffs’ specific contention that nonrefundable expenses are

sufficient to avoid this general rule.

       Based on our review of the pertinent cases, we predict that the Colorado Supreme

Court would find the exculpatory agreement at issue in this case to be fairly entered into

due to its recreational nature and the lack of incompetency, compulsion, or other specific

evidence that Ms. Patterson was “essentially place[d] . . . at the mercy of the other party’s

negligence,” Hamill, 262 P.3d at 949. We therefore affirm the district court’s holding

that the third Jones factor has been satisfied in this case.

       As for the fourth Jones factor, Plaintiffs raise four reasons why we should hold

that the lift ticket’s exculpatory language is not clear and unambiguous: (1) the agreement

does not define the “ACTIVITY” to which the release applies; (2) the agreement is

densely printed in tiny font in red ink on white adhesive paper, rendering the entire

document “confusing and indecipherable without magnification”; (3) it is “replete with

legal jargon which is confusing and indecipherable to a lay person”; and (4) “[t]he focus

and title of the alleged exculpatory agreement is a ‘warning’ concerning the dangers of


                                              -14-
skiing, unrelated to lift operator duties or agreements to release legal rights, and therefore

does not clearly and unambiguously state the intent of the parties” to release legal claims.

(Appellants’ Br. at 28–31.) We are not persuaded by any of these arguments.

       The lift ticket states that “[i]n consideration and exchange for allowing Holder to

use the ski area facilities, Holder agrees to ASSUME ALL RISKS, whether or not

described above, known or unknown, inherent or otherwise, associated with the Holder’s

participation in the ACTIVITY.” (Appellants’ App. at 75.) Although the exculpatory

agreement does not explicitly define the term “ACTIVITY,” we are not persuaded that

this term is ambiguous in context, where the term first appears immediately following the

phrase “[i]n consideration and exchange for allowing Holder to use the ski area

facilities,” and where the agreement is located on the back of the ski lift ticket whose sole

purpose is to allow the ticket holder to use the resort’s ski area facilities. (Id.) As the

district court held, “Plaintiff’s argument that the clause is ambiguous because the word

‘activity’ is not defined does not withstand review of the structure, syntax, language, and

purpose of the ticket.” (Id. at 260.)

       As for Plaintiffs’ second and third arguments, we are not persuaded that the

agreement is confusing or indecipherable. While the font size is small, it is certainly

readable, and key phrases are both capitalized and bolded to attract the reader’s attention

to the release of liability and other critical information. Furthermore, we are not

persuaded that phrases such as “affiliated organizations and companies,” “HOLD


                                             -15-
HARMLESS AND RELEASE,” and “ANY AND ALL liability and/or claims” are so

technical and “abstract” that a reasonable layperson could not be expected to understand

the purpose or meaning of the agreement. (Appellants’ Br. at 30–31.) In Brigance v. Vail

Summit Resorts, Inc., 883 F.3d 1243, 1256, 1262 (10th Cir. 2018), we held that a

similarly worded lift ticket waiver was not “overburdened with legal jargon” and was thus

enforceable under Colorado law. Other Tenth Circuit and Colorado cases have likewise

upheld exculpatory clauses containing similar language. See, e.g., Espinoza, 809 F.3d at

1157 (upholding agreement which included phrases such as “the undersigned hereby

irrevocably and unconditionally release[s], forever discharge[s], and agree[s] not to

sue . . . with respect to any and all claims and causes of action . . . which could be asserted

[by] the Undersigned in connection with . . . the Activity” (alterations in original)

(capitalization standardized)); B & B Livery, Inc. v. Riehl, 960 P.2d 134, 135 (Colo. 1998)

(finding no ambiguity in an exculpatory agreement which included phrases such as “I do

hereby release that Company, its officers, directors, shareholders, employees, and anyone

else directly or indirectly connected with that Company from any liability in the event of

any injury or damage of any nature” and “an equine professional is not liable for an

injury . . . resulting from the inherent risks of equine activities”); Hamill, 262 P.3d at 948,

951 (holding that agreement’s “legal jargon [wa]s minimal” where it included phrases

such as “indemnify and hold harmless” and “hereby release and waive any claim of

liability” (emphasis omitted)).


                                             -16-
       We are also unpersuaded by Plaintiffs’ argument that the agreement failed to put

reasonable lay persons on notice that it might include a release of liability due to its

“WARNING” title and alleged focus on the risks of skiing rather than on the release of

liability or on the potential risks posed by ski lifts. We note that the title and first

paragraph of PowderMonarch’s lift ticket were mandated by Colorado law. See Colo.

Rev. Stat. § 33-44-107(8)(b)–(c). In B & B Livery, the Colorado Supreme Court

considered the argument that a release agreement for horseback riding activities was

ambiguous because it contained a mandatory statutory warning “as well as a broader

clause limiting liability from non-inherent risks.” 960 P.2d at 138. The court rejected

this argument, holding that “[b]ecause every equine release agreement limiting liability

must contain the mandatory warning, . . . the insertion of a broader clause further limiting

liability does not make the agreement ambiguous per se.” Id. The agreement here

contains at least as many paragraphs focused on the legal release of liability as on the

risks of skiing, and the fourth paragraph of the agreement clearly and unambiguously

expresses the intent to extinguish liability for any and all claims that might arise from the

ticket holder’s use of the ski area facilities. As in B & B Livery, the release agreement is

“not inordinately long and complicated,” id., such that a reasonable lay person could not

reasonably be expected to see or understand the release of liability contained in the

middle section of the one-page agreement. Additionally, several key terms of the fourth

paragraph are both bolded and capitalized to draw the reader’s attention to the release


                                              -17-
provisions.

       We are not persuaded by Plaintiffs’ contention that the exculpatory agreement was

unclear or ambiguous because it did not specifically detail that it would release claims

arising out of Defendant’s employee’s allegedly negligent operation of the ski lift. The

agreement releases “any and all liability and/or claims” arising out of the ticket holder’s

use of the ski area facilities, “including those claims based on any released party’s alleged

or actual negligence.” (Appellants’ App. at 81 (emphasis omitted).) “Released party” is

specifically defined to include “Monarch Mountain, PowderMonarch LLC, . . . and all of

their respective . . . employees.” (Id. (emphasis omitted).) Moreover, the ticket holder

agrees to “assume all risks, whether or not described above, known or unknown, inherent

or otherwise.” (Id. (emphasis omitted).) In Brigance, we rejected the argument that a

very similar provision in a different lift ticket was ambiguous. We held that the meaning

of this provision was clear: The “holder of the ticket is to assume all risks of skiing,

whether inherent to skiing or not.” 883 F.3d at 1257. The release agreement in this case

is likewise clear, and we are persuaded that it unambiguously applies to the claims at

issue in this case.

       We accordingly conclude that the exculpatory lift ticket agreement is enforceable

under Jones, and we therefore affirm the district court’s entry of summary judgment in

favor of Defendant on Plaintiffs’ negligence and loss-of-consortium claims. Because we

affirm the summary judgment ruling on this basis, we need not address the district court’s


                                             -18-
alternative holding that these claims are also preempted by Colorado’s premises liability

statute. As for Plaintiffs’ argument that the district court erred in failing to construe their

complaint to include a third claim based on the Ski Safety Act or Passenger Tramway

Safety Act, Plaintiffs do not dispute Defendant’s contention that any such statutory claim

would be barred by the exculpatory agreement, if enforceable. Cf. id. at 1259–60

(rejecting argument that ski lift ticket waiver was unenforceable because it conflicted

with Ski Safety Act and Passenger Tramway Safety Act). We therefore reject this

argument based on the enforceability of the exculpatory agreement and do not address the

parties’ other arguments on this point.

                                              III.

       The district court’s decision is accordingly AFFIRMED.




                                              -19-
