Colorado high court to hear ski race case | AspenTimes.com

Colorado high court to hear ski race case

Brent Gardner-Smith
Aspen Times Staff Writer

The Colorado Supreme Court will hear oral arguments today at Glenwood Springs High School in a lawsuit about whether parents can sign binding release forms for their children.

The seven-member panel of judges will listen to lawyers representing both sides of David Cooper and Michael Cooper vs. The Aspen Valley Ski Club and John McBride, Jr. The case stems from a 1996 ski race accident on Aspen Mountain.

The court’s day in Glenwood Springs is part of an educational outreach program conducted by the Supreme Court. Select students from around the region have been invited to listen to the formal proceedings and discuss the cases with the justices.

The Cooper lawsuit, which was filed in 1996 by David and his father, Michael, claims that McBride, a paid Ski Club coach, was negligent in 1995 when he set a Super G race course on Strawpile on Aspen Mountain.

During a training run on the course in 1995, David Cooper, then 17, skied out of the course and hit a tree. He spent almost two weeks in the hospital and was blinded for life.

Cooper has since graduated from the University of Colorado. McBride was recently named the head men’s downhill and Super G coach for the U.S. Ski Team.

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His lawsuit claims that McBride set the race course too close to the side of the trail and that protective fencing and padding were not used.

But so far in the case, two courts have decided that the waiver signed by David Cooper’s mother protects the Ski Club and McBride from any liability.

The Supreme Court today will not be weighing whether McBride was negligent.

Instead, it will be considering whether the Ski Club waiver that Cooper’s mother signed really does protect the Ski Club and McBride.

“The issue is whether David’s mother’s signature binds David,” said Herb Klein of the Klein-Zimet law firm in Aspen, which is representing Cooper along with attorneys Martin Freeman and Michele Nelson Bass. “There is plenty of precedence in the law that there are certain rights of a child that only a court of law can waive.”

And more generally, the issue is whether parents have the right to sign a waiver for their children who are engaged in recreational activities such as ski racing.

Or, to put it into the more precise language of the court, the justices will be deciding “whether the public policy of Colorado allows a parent to release the claims of a minor child for possible future injuries from a recreational activity.”

If the justices rule in Cooper’s favor and find that the waiver is not binding, Cooper will be able to proceed with a negligence case against McBride, which requires a jury trial.

“If the Supreme Court ruled that the waiver did not prevent the claim, we would go back and challenge the setting of the course,” said Klein.

If the court finds that a parent’s signature on a waiver for someone under 18 is indeed binding, the Cooper case would be over.

Stephen Hopkins, a partner with Higgins, Hopkins, McLain and Roswell in Denver, is representing McBride and the Ski Club in the case.

He said that Colorado courts in the past have found that waivers do protect groups from liability.

“I’ve won the waiver argument a lot,” Hopkins said. “The courts here enforce a properly written waiver for adults.”

But do those waivers extend to children under 18?

So far in the Cooper case, two Colorado courts have said they do, because parents have a “fundamental liberty interest” when it comes to rearing their children.

“Parents make decisions for their children all the time,” Hopkins said.

A decision in the case is expected in three to six months.

The justices will start their day at Glenwood High at 8:30 a.m. with opening remarks to students in the auditorium.

At 8:45 a.m., they will hear a case concerning the issue of “false light,” in which a Denver man is claiming that the Rocky Mountain News falsely portrayed him in an article about his family, which was reported to have an extensive criminal history.

After the oral arguments have been completed, the justices will participate in a question and answer session with students.

Then, at 10:15 a.m., the judges will hear the Cooper case.

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