Court rules Cooper can sue ski club | AspenTimes.com

Court rules Cooper can sue ski club

Allyn Harvey
Aspen Times Staff Writer

The Colorado Supreme Court unanimously overturned a local judge and the state court of appeals yesterday, ruling that David Cooper can sue the Aspen Ski and Snowboard Club for its role in a training accident that left him blind.

The court ruled that parents cannot waive a child’s right to compensation for injuries caused by a third party.

The decision means the case of David and Michael Cooper vs. the Aspen Ski and Snowboard Club and John McBride Jr. can now be tried in front of a jury.

David Cooper and his father claim that the accident, which occurred in 1995 during a training run on Aspen Mountain, resulted directly from the actions of then-ski club coach McBride. In their original lawsuit, filed in 1996, the Coopers alleged that McBride was negligent because he set the course too close to the trees at the edge of the run.

David Cooper lost control during a run and hit a tree, losing his vision as a result.

David, then 17, and his mother, Diane, had both signed a standard waiver at the beginning of the ski season, surrendering the right to sue in the event of injury or death. Diane also signed a clause indemnifying the ski club of any financial responsibility in the event David was injured and ended up suing anyway.

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Yesterday, the state Supreme Court said Diane Cooper did not have the right to sign away her son’s right to seek damages, even though he was a minor under her care at the time. In doing so, the justices specifically rejected the argument made by the defendants and their attorneys that a parent can sign a pre-injury waiver as part of their fundamental right “to make decisions concerning the care, custody and control of their children.”

The ruling relied heavily on the state government’s “policy” of protecting children.

“The General Assembly has demonstrated an ongoing commitment to afford minors significant safeguards from harm by passing numerous statutes designed to protect minor children,” the ruling says.

As examples, the ruling points out laws that require child restraints in automobiles, increase the penalties for some crimes against children, set 18 as the minimum age that a child can enter into a contract and regulate child-care facilities.

The law that sets 18 as the minimum age for entering into contracts applies directly to the Cooper case, because both mother and son signed the waiver at the beginning of the 1995 ski season.

David was only 17 at the time, however, so his signature on the waiver has no legal force behind it. His mother is an adult in the eyes of the law, however, and the district court ruled that Diane Cooper must abide by the waiver and remove herself as a plaintiff.

In concluding that parents can’t sign their children’s rights away before they participate in an activity, the court pointed out that state law already bars parents from signing away their child’s right to seek damages after an injury has occurred.

“The General Assembly has granted minors a number of protections to safeguard their post-injury rights of recovery,” the ruling says. Although, the court did acknowledge that the post-injury law is meant to protect children from parents who may be looking to cash in on a child’s injury with little regard for the well-being of that child.

Attorneys on both sides of the case agreed that it is an important decision.

Herb Klein, the attorney representing the Coopers, said the ruling aligns Colorado law with that of many other states. In fact, yesterday’s decision relies heavily on decisions made by the Utah and Washington state supreme courts in similar cases and cites rulings in Pennsylvania, Connecticut, Illinois, New Jersey, Tennessee and Texas as well.

The Washington case is distinctly similar to the Cooper case. It dates back to 1992, when a 12-year-old boy received severe head injuries after crashing on a slalom course that was part of his ski school class. The boy’s mother had signed a waiver that included a section “relieving the school from any liability for its own negligence.”

As in Colorado, the Washington Supreme Court also noted parents can’t give up a child’s right to file a claim against a negligent party after an injury, “so it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury.” The court also ruled that the exculpatory clause that protected the ski school from its own negligence “violates public policy and is unenforceable.”

Klein said yesterday’s ruling should have little impact on the ability of companies and other organizations to offer youth activities. Nor will it affect the authority parents have over their children in the eyes of the law.

“I think what’s going on here with this decision is businesses that are providing recreational opportunities for kids need to be careful,” Klein said. And the crux of his client’s case is that McBride and the Aspen Ski and Snowboard Club were not careful enough, because the course was set improperly and too close to the trees along the Strawpile run on Aspen Mountain.

Steve Hopkins, who represents the ski club and McBride, reckons the ruling will have a long-lasting and detrimental effect on recreational activities for young people, especially for smaller organizations that won’t be able to cover higher insurance costs.

Hopkins had successfully argued before Judge Thomas Ossola and a three-judge panel from the state court of appeals that parents indeed have the authority to sign away their children’s right to sue, just as they have the right to determine their children’s religious and educational upbringing, punish them – within reason – as they see fit, or even commit them to a mental institution.

“It’s a very sweeping decision,” Hopkins said. “I’m personally not persuaded by their logic – the court of appeals opinion was 180 degrees the other way.”

Hopkins said the ski club has insurance, although he doesn’t think it will be needed, because the course was properly set. Like other members of the team, David Cooper slid the course in advance, so he had seen the turn that would take his sight. Unlike his teammates, however, he did not make it all the way down.

Barring a settlement, the case will now be argued before a jury either in Glenwood Springs or Aspen.

Allyn Harvey’s e-mail address is aharvey@aspentimes.com.

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