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This order and judgment is not binding precedent, except under the doctrines of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
-2-
Attachment not available electronically.