6 Positive As of: February 5, 2021 2:00 AM Z Gifford v. Vail Resorts inc. United States Court of Appeals for the Tenth Circuit June 14, 2002, Filed Nos. 01-1155 & 01-1191 Reporter 37 Fed. Appx. 486 *: 2002 U.S. App. LEXIS 11801 \" SANDRA GIFFORD, Plaintiff - Appellant - Cross- Appellee, g. VAiL RESORTS, |NC., a Colorado corporation, Defendant - Appellee - Cross-Appellant. Notice: [\"1] RULES OF THE TENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION T0 UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT. Subsequent History: Motion denied by Gifford v. Vail Resorts Inc, 154 L. Ed. 2d 892, 123 S. Ct. 985, 2003 U.S. LEXIS 760 (U.S., 2003) US Supreme Court certiorari denied by Gifford v. Vail Resorts 2003 U. S. LEXIS 2999 (U.S., Agr. 21 20031 Prior History: (D. Colorado). (0.0. No. 99-5-53). Disposition: Afrmed. Cross-Appeal dismissed. Core Terms skiing, inherently dangerous, district court, risks, Ski Safety Act, gully, ski area, prejudicial, skiers, instruct a jury, integral, snow, sport, court's decision, expert witness, instructions. conditions, terrain, warning, season Case Summary Procedural Posture Appellant mother brought a wrongful death suit against appellee ski resort and alleged violation of the Colorado Ski Safety Act, Col'o. Rev. Stat. 33-44-101 et seq. A jury in the United States District Court for the District of Colorado found in favor of the resort. The mother appealed. The resort crossappealed from the denial Of its motion for judgment as a matter of law and the decision to permit the mother's expert witness to testify. Overview The mother's son died after he fell into a natural gully at the resort. In her suit, the mother alleged that the resort was negligent per se under the Colorado Ski Safety Act, Colo. Rev. Stat. 33-44-101 et seq, because the gully constituted a "danger area" which should have been marked with a danger sign. A jury found that the son's accident was the result of the inherent dangers and risks of skiing and entered judgment in favor of the resort. On appeal, the mother claimed that the jury instructions were erroneous because they did not instruct the jury to consider whether the resort violated the act. The appellate court found that because the gully where the accident occurred was open for skiing, and it was natural terrain, the only statutory marking issue was whether the resort had a duty to mark the gully with a danger sign under Page 2 of 8 37 Fed. Appx. 486, \"436; 2002 U.S. App. LEXIS 11801. \"1 Colo. Rev. Stat. 3344-107{22[dl. The jury's nding that the son's accident was the result of the inherent dangers and risks of skiing, was equivalent of a determination that the gully where the accident occurred was not a danger area that required a danger sign under 33-44-107j2jtdl. Thus, the error in the jury instructions was not prejudicial. Outcome The judgment of the district court was affirmed. The ski resorts cross-appeal was denied as moot. LexisNexis Headnotes Civil Procedure > > Jury Trials > Jury Instructions > General Overview Criminal Law & Procedure > > Standards of Review > Plain Error > Denition of Plain Error Civil Procedure > > Standards of Review > Harmless & Invited Errors > General Overview Civil Procedure > > Standards of Review > Harmless 8: Invited Errors > Harmless Error Rule Civil Procedure > > Standards of Review > Plain Error > General Overview Criminal Law 8: Procedure > > Standards of Review > De Novo Review > Jury Instructions HN1[$] Jury Trials, Jury Instructions When an appellant failed to specically raise instructional errors at trial, the appellant is not entitled to relief on appeal unless the instructions are patently plainly erroneous and prejudicial. A hamless error analysis is applicable to review challenges to jury instructions in civil cases. Civil Procedure > > Standards of Review > Plain Error > General Overview Evidence > Admissibility > Procedural Matters > Rulings on Evidence Civil Procedure > > Jury Trials > Jury Instructions > General Overview Civil Procedure > > Jury Trials > Jury Instructions > Objections Civil Procedure > Appeals > Standards of Review > General Overview Criminal Law 8: Procedure > > Standards of Review > Plain Error > Burdens of Proof Criminal Law & Procedure > > Standards of Review > Plain Error > Denition of Plain Error HN2[*] Standards of Review, Plain Error While an appellant's failure to raise instructional errors at trial constitutes a waiver under Fed. R. Civ. P. 51, it is the United States Court of Appeals for the Tenth Circuit's general practice to review such errors on appeal under a plain error standard of review that has been modied for civil cases. The party claiming such plain error has the heavy burden of demonstrating fundamental injustice. Civil Procedure > > Jury Trials > Jury Instructions > General Overview Torts > Wrongful Death & Survival Actions > General Overview Transportation Law > Private Vehicles > Sleds & Sleighs Torts > > Proof > Violations of Law > General Overview HN3[*] Jury Trials, Jury Instructions Under the Colorado Ski Safety Act, Colo. Rev. Stat. 33-44-101 et sag, the term "skier" includes "any person using a ski area for the purpose of sliding downhill on a sled. Colo. Rev. Stat. 33-44-103{81. Page 3 of 8 37 Fed. Appx. 486, \"436; 2002 U.S. App. LEXIS 11801, \"1 Civil Procedure > > Jury Trials > Jury Instructions > General Overview Torts > Negligence > General Overview Civil Procedure > Trials > Jury Trials > Jury Deliberations Torts > > Proof > Violations of Law > General Overview Torts > > Proof > Violations of Law > Statutes Torts > Wrongful Death 8. Survival Actions > General Overview HN4[*] Jury Trials, Jury Instructions While the Colorado Ski Safety Act. W 33-44-101 et seq., bars a skiei's claim against a ski area operator for injury resulting from any of the inherent dangers and risks of skiing, Colo. Rev. Stat. 33-44- m, the statutory provision dening inherent dangers and risks of skiing specically excludes from the denition the negligence of a ski area operator as set forth in Cote. Rev. Stat. 33-441042}. Coio. Rev. Stat. 3344403353. Colo. Rev. Stat. 3344-1011(21 provides that a ski area operator's violation of any requirement under the Colorado Ski Safety Act, M Rev. Stat. 33-44101 at 399., that results in injury to any person constitutes negligence. Applying those two provisions, the United States Court of Appeals for the Tenth Circuit concluded that a ski area operator's negligence, which is established by a statutory violation of the Colorado Ski Safety Act, Colo. Rev. Stat. 33-44- 101 e! sag. which causes injury to a skier, is not an inherent danger or risk of skiing. Torts > > Proof > Violations of Law > General Overview Torts > Wrongful Death & Survival Actions > General Overview H_N5[$j Proof. Violations of Law While the Colorado Ski Safety Act, Colo. Rev. Stat. 33-44-101 st 399., does not dene the term "danger area," it expressly provides that danger areas do not include areas presenting inherent dangers and risks of skiing. Coio. Rev. Stat. 33-44-107f2ltdl. Ski area operators are not required to post danger signs in areas that present inherent dangers and risks of skiing. Colo. Rev. Stat, 33-44107j22fdj. Torts > > Elements > Duty > General Overview Torts > > Proof > Violations of Law > General Overview Torts > Wrongful Death 8: Survival Actions > General Overview w[$] Elements, Duty Under the Colorado Ski Safety Act, Colo. Rev. Stat. 3344-101 et sag, in addition to danger areas, a ski area operator has a duty to mark certain manmade objects and any trails or slopes that have been closed to the public. Colo. Rev. Stat. 33-44-107f4i and (. Torts > > Proof > Violations of Law > General Overview Torts > Wrongful Death & Survival Actions > General Overview HN7[*] Proof, Violations of Law The detailed listing of dangers and risks in Coio. Rev. Stat. 3344-10335! does not foreclose an inquiry concerning whether, based on the specic facts in an individual case, particular dangers and risks are integral parts of skiing. Civil Procedure > > Standards of Review > Plain Error > General Overview Criminal Law & Procedure > > Standards of Review > Plain Error > Denition of Plain Error Criminal Law 8: Procedure > > Reviewabiiity > Preservation for Review > Failure to Object Miii Standards of Review, Plain Error When an appellant fails to object to an issue in a district court. an appellate court may only reverse if the district rage 4 UI O 37 Fed. Appx. 486, '486; 2002 U.S. App. LEXIS 11801, \"'1 court's decision was patently plainly erroneous and prejudicial. Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Criminal Law & Procedure > > Reviewability > Waiver > Admissio n of Evidence Criminal Law & Procedure > > Standards of Review > Abuse of Discretion > General Overview HN9[$] Standards of Review, Abuse of Discretion An appellate court reviews a district court's decision to admit evidence for an abuse of discretion. Under that standard, a trial court's decision will not be disturbed unless the appellate court has a denite and rm conviction that the trial court has made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances. Counsel: For SANDRA GfFFORD, Plaintiff - Appellant (01-1155). Plaintiff - Appellee (01-1191): Sandra Gifford. Eagle Point, OR. For VAlL RESORTS. INC., Defendant - Appellee (01- 1155), Defendant - Appellant (01-1191): Jere K. Smith, Peter W. Rietz, Rietz & Smith. Dillon, CO. Judges: Before KELLY, BRISCOE, and LUCERO, Circuit Judges. Opinion by: Mary Beck Briscoe Opinion r437] ORDER AND JUDGMENT ' After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially [**2] assist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(Gi. The cases are therefore ordered submitted without oral argument. In this diversity case, plaintiff-appellant Sandra Gifford, appearing pro se, appeals a jury verdict and judgment entered in favor of defendantappellee Resorts, Inc. (Vii!) on her negligence claims for the wrongful death of her son. M has led a cross-appeal from the district court's denial of Ms motion for judgment as a matter of law under Fed, R. Civ. P. 50 and the court's decision to permit Ms. Glfford's expert witness to testify regarding certain matters. We have jurisdiction over this appeal under M. We afrm [*488] the judgment in favor of M and dismiss the cross-appeal as moot. Christopher Gifford was Ms. Giffords twenty-three year old son. On January 11. 1997, Mr. Gifford, who was an expert skier and a m season pass holder, was skiing on Morning Side Ridge in the Back Bowls at the M ski area in viii. Colorado. Over three feet of new snow had fallen during the preceding three days, including seventeen inches of new snow that morning. Mr. Gifford fell [\"3] in deep snow after skiing into or across a natural gully located near the bottom of Morning Side Ridge. He was unable to extricate himself from the snow and died of asphyxiation due to suffocation. The gully where Mr. Gi'ords accident occurred is located within the boundaries of the M ski area, and the area is designated as a "most difcult" skiing area. At the time of Mr. Gifford's accident. a portion of the gully was marked with two or three bamboo poles, but the gully was open to skiers and it was not marked with any signs. Ms. Gifford filed a wrongful death suit against E in '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. Page 5 of 8 37 Fed. Appx. 486, \"436; 2002 U.S. App. LEXIS 11801, \"3 federal district court, alleging that Vii! was negligent in failing to properly mark and warn skiers of the gully where the accident occurred, and that M's negligence was the cause of her son's death. Ms. Gifford also alleged that M was negligent per so under the Colorado Ski Safety Act because the gully constituted a "danger area" which should have been marked with a "Danger" sign in accordance with Coio. Rev. Stat. 33- 44-107(2j[dj. A jury found that Mr. Giffords accident was the result of one or more of the inherent dangers and risks of skiing. The district court therefore entered judgment [\"4] in favor of m under the Ski Safety Act. see id. at 3344112 (providing that "no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing"), Ms. Gifford claims the district court erred in: (1) instructing the jury to determine whether the accident was the result of an inherent danger and risk of skiing without first determining whether m violated the Ski Safety Act; (2) failing to properly instruct the jury regarding the inherent dangers and risks of skiing under the Act; (3) instructing the jury that her expert witness was not an expert and could not offer expert testimony; and (4) allowing into evidence a release and waiver of liability that was invalid under Colorado law. A. Alleged Doering Error On the same day Ms. Gifford filed her opening brief in this appeal, this court led its opinion in Doering ex rel. Barrett v. Cogger Mountain inc. 259 F.3d 1202 [10th Cir. 20011. In Doering, we reversed a jury verdict and judgment entered in favor of the defendant under the Colorado Ski Safety Act, holding that the district court's jury instructions were [\"5] not in accordance with the Act. id. at 1212-13. Ms. Giord' argues in her response brief that the same instructional errors occurred in this case, 1 and that Doen'ng requires that [*489] we 1Although Ms. Giffords failure to raise the alleged Doering error in her opening brief would normally constitute a waiver of that error. we decline to find a waiver here given the importance of the Doering issue under the Colorado Ski Safety Act and the fact that our opinion in bearing was led on the same day Ms. Gifford filed her opening brief. Further, Mi? while Ms. Giffords failure to raise the instructional errors at trial constitutes a waiver under Fed, R. Civ. P. 51, it is this court's general practice to review such errors on appeal under a plain error standard of review that has been modied for civil cases. See Zimmerman 848 F.2d at 1054 (setting forth the reverse the jury verdict and judgment. [?] Ms. Gifford failed to specifically raise the instructional errors at trial. Consequently, she is not entitled to relief on appeal unless the instructions are "patently plainly erroneous and prejudicial.'I See Zimmerman v. First Fed. Sav. 8. Loan Ass'n 848 F.2d 1047 1054 (10m Cir. 1986!. Nonetheless, because we hold that the alleged errors were not prejudicial to Ms. Gifford, the standard of review is not determinative in this case, and we would reach the same result applying a de novo standard of review. 2 See Doering 259 F.3d at 1212 (noting that, while jury instructions are reviewed de novo to determine if the jury was misled regarding the applicable law, "reversal is appropriate only if there was prejudicial error"); Morrison Knudsen Corg, v. Fireman's Fund ins. Co., 175 F.3d 1221 1236 (10m Cir. 1999) (holding that harmless error analysis is applicable to review challenges to jury instructions [\"6] in civil cases). ["7] Doering involved two children who were injured while sledding on a ski run at Copper Mountain, and the accident occurred when the sled collided with a snow- grooming machine. 3 259 F.3d at 120708. A lawsuit was filed against Copper Mountain on behalf of the children, alleging their injuries were the result of Copper Mountain's negligence "in failing to equip the snow- grooming machine with a visible light, in violation of section 33-44-108(1) of the Ski Safety Act. and failing to place conspicuous notice that snowgrooming equipment was maintaining the ski trail. in violation of "patently plainly erroneous" standard of review). However, the party claiming such plain error "has the heavy burden of demonstrating fundamental injustice, Mediock v. Ortho Biofech, inc, 164 F.3d 545, 553 (10th Cir. 1999) (quotation omitted). and Ms. Gifford has failed to establish such injustice in this case. 2We also note that Ms. Gifford objected to the district courts verdict form because it instructed the jury to determine whether the subject accident was the result of an inherent danger and risk of skiing \"the rst thing right out of the box." Trial Tr., Vol. II at 344-45. 348. Although Ms. Giffordfailed to elaborate on her objection. the objection arguably came close to raising the same instructional error raised by the plaintiffs in Doering. Further. in its brief on cross-appeal and answer brief (at page 17), m argues that Doering is at issue in this appeal as a result of Ms. Gifford's appeal of jury instruction No. 10, and Vii! has not argued that our review of the Doen'ng issue should be only for plain error. 3Hitl'.'.i[$] Under the Ski Safety Act, the term "skief' includes "any person using a ski area . . . for the purpose of sliding downhill on . . . a sled." Colo. Rev. Stat. 33-44-1038}. Page 6 of 8 37 Fed. Appx. 486, \"489; 2002 U.S. App. LEXIS 11801. \"7 section 33-44-1UB(2) of the Act." id. at 1213. A jury retumed a verdict in favor of Copper Mountain, nding that the accident resulted from an inherent danger and risk of skiing. id. at 1208. The jury did not reach the issue of whether Copper Mountain violated the Ski Safety Act. however, because it was instructed to cease its deliberations if it determined that the sledding accident was the result of an inherent danger and risk of skiing. id. at1207 1213. [\"8] On appeal, the plaintiffs in Doeri'ng alleged that the jury instructions were not in accordance with the Ski Safety Act. id. at 1208-09 1212-13. Because there was conicting evidence as to whether Copper Mountain was operating the snow-grooming machine in violation of the Act. we agreed with the plaintiffs and held that it was prejudicial. and therefore reversible. error to not instruct the jury "that (1) it must rst determine whether there was a statutory violation by Copper Mountain . . .. and (2) a violation of the Ski Safety Act by Copper Mountain causing a skier [*490] injury cannot constitute an inherent danger or risk of skiing." M - 4 [\"9] The district court in this case committed the same error as the district court in Doen'ng. Here. the district court instructed the jury to rst determine whether Mr. Giords accident was the result of one or more of the inherent dangers and risks of skiing. The jury was instructed that it should cease its deliberations and not reach the issue of whether M violated the Ski Safety Act if it answered that question in the afrmative. See R.. Doc. No. 109 at 16-17 and Doc. No. '110 at 1; Trial Tr.. Vol. III at 39091. The jury determined that Mr. Giffords accident was the result of one or more of the inherent dangers and risks of skiing and returned a verdict in favor of Vii! without considering whether Vii! \"The basis of our holding in Doen'ng was two-fold. First. m *1 while the Ski Safety Act bars a skier's claim against a ski area operator \"for injury resulting from any of the inherent dangers and risks of skiing." Colo. Rev. Stat. 33-44-112, "the statutory provision dening 'inherent dangers and risks of skiing' specically excludes from the denition 'the negligence of a ski area operator as set forth in WI" 1309an 259 F.3d at 1212 (quoting Colo. Rev. Stat. 33-44- 103[3.51). Second. 33-44-104?! provides that "a ski area operator's violation of any requirement under the Ski Safety Act that results in injury to any person constitutes negligence." Jd'. Applying these two provisions. we concluded that "a ski area operator's negligence. which is established by a statutory violation of the Act which causes injury to a skier. is not an inherent danger or risk of skiing.\" id. violated the Act. See R.. Doc. 110 at 1-2. While we agree with Ms. Gifford that this was error under Doeri'ng. we will not reverse the district court because the error was not prejudicial. Ms. Gifford alleged that m violated the Ski Safety Act because the gully where her son died constituted a \"danger area" that should have been marked in accordance with Colo. Rev. Stat. 33-44-1072 5'. 5 M[$] While the statute does not dene the ten-n "danger area." it expressly [\"10] provides that "danger areas do not include areas presenting inherent dangers and risks of skiing." Cofo. Rev. Stat. 3344-107 2 d ' see also Graven v. Vail Assocs. inc. 909 P.2d 514 m. 25 Colo. Law. No. 2 219. 19 Brief Times Rgtr. 1798 (Colo. 1996! (construing 33-44-107j2jtc'i and holding that ski area operators are not required to post danger signs in areas that present inherent dangers and risks of skiing). Thus. unlike Doerfng, the alleged statutory violation in this case is inextricably linked to the inherent danger and risk issue. and the question of whether M violated the Act is wholly dependent on that issue. [\"11] The jury specically found that Mr. Giffords accident was the result of one or more of the inherent dangers and risks of skiing. See R.. Doc. No. 110 at 1. We will treat the jury's nding as the equivalent of a determination that the gully where the accident occurred was not a danger area requiring a danger sign under 3344-107[2j(di. Accordingly. the Doeri'ng error was not prejudicial, and it is not grounds for a new trial. B. Jury Instruction No. 10 In instruction No. 10. the district court instructed the jury as follows: [*491] You must rst determine whether Plaintiffs negligence claim is barred because of one of the inherent dangers and risks of skiing as dened by the Colorado Ski Safety Act . . . Not all dangers that may be encountered on the ski slopes are inherent and integral to the sport of 5&3] Under the Ski Safety Act. in addition to danger areas. a ski area operator has a duty to mark certain manmade objects and any trails or slopes that have been closed to the public. See Colo. Rev. Stat. 33-44-107 4 and . However. because it was undisputed that the gully where the accident occurred was open for skiing. see Trial Tr.. Vol. II at 336. and that it is a natural terrain feature. the only statutory marking issue in this case was whether had a duty to mark the gully with a "Danger" sign under 33-44-1071211111. Page 7 of 8 37 Fed. Appx. 486, *491; 2002 U.S. App. LEXIS 11801, \"11 skiing. However. the statute denes the inherent dangers and risks of skiing to be ["] those dangers or conditions which are an integral part of the sport of skiing, including changing weather conditions: snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, com, crust, slush, cut-up snow, and machine- made snow; [\"12] surface or subsurface conditions such as here spots, forest growth, rocks, stumps, streambeds, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures and their components; variations in steepness or terrain. whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. ["] R., Doc. No. 109 at 16 (quoting Colo. Rev. Stat. 33- 444033.51). Ms. Gifford objected at trial to instruction No. 10. arguing that the district court should have further instructed the jury regarding the limitations on the terms "inherent" and "integral" which she claims the Colorado Supreme Court adopted in Graven 909 P.2d 514. See Trial Tr., Vol. II at 325-28. According to Ms. Gifford, the limitations are: (1) that an injury caused by an unnecessary hazard that a ski area operator could have eliminated by using ordinary care is not an "inherent" danger and [\"13] risk of skiing; and (2) that the danger and risk are "integral" to the sport of skiing only if reasonably foreseeable. id; see also Aplt.'s Opening Br. at 12-13. These limitations are derived from the Utah Supreme Court decision in Clover v. Snowbird Ski Resort 808 P.2d 1037 1047 [Utah 19911 (construing Utah's "Inherent Risk of Skiing Statute"). which the Colorado Supreme Court cited in Graven. In Graven, the court held there was an issue for trial concerning whether a ravine that was located in an area adjacent to a ski run at Vii! constituted "a variation in steepness or terrain" that was part of the "inherent dangers and risks of skiing." See Graven 909 P.2d at M. The court was careful to note, however, that it was not "suggesting that all imaginable types of terrain changes located within a ski run will always fall within the statutory denition of 'variations in steepness or terrain' that are 'inherent dangers and risks of skiing." id. at 519 n.5 (emphasis added). To the contrary. "not all dangers that may be encountered on the ski slopes. . . . are inherent and integral to the sport, and this determination [\"14] cannot always be made as a matter of law." id, at 520. Graven does not support the limitations proposed by Ms. Gifford. Instead, Graven simply stands for the proposition that H_N7[?] the detailed listing of dangers and risks in Colo. Rev. Stat. 33-44-103j3.5i does not foreclose an inquiry concerning whether, based on the specic facts in an individual case, particular dangers and risks are "integral" parts of skiing. See Graven 909 P.2d at 519. Although the court in Graven cited Clover as support for this proposition, see id. (citing Grover 808 P.2d at 1044-45), that was the extent of the court's reliance on Clover. Consequently, we reject Ms. Giffords claim that the court in Graven also adopted the portions of Clover [\"492] where the court stated that a ski area operator's duty of care depends on whether a specific hazard could have been eliminated by using ordinary care or on whether the specic risk was foreseeable. '3 See Clover 808 P.2d at 1047; cf. Giover v. Vail Co . 955 F. Su . 105 109 D, Colo. L97) (rejecting argument that Graven's citation to Grover [\"15] was meant to signify wholesale adoption of the holding), aff'd, Grover v. Var'i Corg. 137 F.3d 1444 (10111 Cir. 1998). In accordance with Graven, the district court found that, based on the evidence presented by Ms. Gifford, and despite the fact that the accident occurred within a skiable area, there was a factual issue for the jury to resolve concerning whether the subject gully constituted an inherent danger and risk of skiing. See R., Doc. No. 66 at 10-11; Trial Tr., Vol. II at 313-14. In [\"16] instruction No. 10, the court specically instructed the jury: (1) that the Ski Safety Act "defines the inherent dangers and risks of skiing to be those dangers or conditions which are integral to the sport of skiing," see R., Doc. No. 109 at 16; and (2) that "not all dangers that may be encountered on the ski slopes are inherent and integral to the sport of skiing," see id. Accordingly, the district court fully complied with Graven, and we hold 5We do not mean to suggest. however, that the concept of foreseeability is not relevant to the threshold legal determination which a trial court must make as to whether a particular skiing accident was caused by an inherent danger and risk of skiing as a matter of law. Instead, we are only holding that, once it is determined that the inherent danger and risk issue should go to a jury, the jury should not be instructed that its determination of the issue is dependent on the concept of foreseeability. Page 3 of 8 37 Fed. Appx. 486, *492; 2002 U.S. App. LEXIS 11801, \"16 that instruction No. 10 was in accordance with Colorado law. C. Ms. Giffords Expert Witness The district court qualied Ms. Giord's expert witness, Richard Penniman, to give opinions under Fed. R. Evid. , see Trial Tr., Vol. II at 225-28, but the court prohibited Ms. Gifford from referring to Mr. Penniman as an "expert" or to his opinions as "expert opinions," see id. at 230. Ms. M contends this is reversible error because the district court constructively excluded Mr. Penniman's testimony and thereby misled the jury. We disagree. H_N8[T] Ms. Gifford failed to object at trial to the district court's prohibition against using the terms "expert" and "expert opinions." See id. Thus, we may only reverse if the ["17] district court's decision was "patently plainly erroneous and prejudicial." See Zimmerman 848 F.2d at 1054. After the district court qualified Mr. Penniman to give opinions under Fed. R. Evid. 702, it specically instructed the jury that I'people who by knowledge, skill, experience, training or education have become expert in some field may state their opinions on matters in that eld and may also state the reasons for their opinions." Trial Tr., Vol. II at 226 (emphasis added). The court then permitted Mr. Penniman to testify regarding the opinions he had formed in this case based on his investigation of the accident and his general experience as a ski accident investigator. See id. at 23045. Consequently. the jury was adequately advised as to both the nature and substance of Mr. Penniman's testimony, and the district court's refusal to allow Ms. Gifford to refer to Mr. Penniman as an expert witness was not plainly erroneous or prejudicial. D. Season Pass Application Ms. Gifford claims the district court erred by admitting into evidence, over her objection, a copy of Mr. Giffords season [*493] pass application because the application contained a release and [\"18] waiver of liability that was invalid under Colorado law. See Trial Tr., Vol. I at 11516; Exhibit E to Aplt.'s Exhibit List. MIT] We review the district court's decision to admit the season pass application for an abuse of discretion. See Ralston v. Smith & Neghew Richards inc. 275 F.3d 965 968 [10th Cir. 20011. Under this standard, "[a] trial court's decision will not be disturbed unless [this Court has] a denite and rm conviction that the [trial] court has made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." id. at 968-69 (quotation omitted). The district court did not abuse its discretion in admitting the season pass application. First, the district court specically instructed the jury there was no issue concerning a waiver of any claims, and that it was not to treat the application as any sort of waiver. See Trial Tr., Vol. I at 116. Second. the application contains the Ski Safety Act's statutory warning regarding a skier's assumption of the inherent dangers and risks of skiing which Colorado ski area operators are required to post at ski areas and set forth on all lift tickets under ["19] Colo. Rev. Stat. 33-44-1071181. and Mr. Gifford acknowledged that he had read the warning when he signed the application. See Exhibit E to Aplt.'s Exhibit List. Although Mr. Giffords knowledge of the statutory warning was not relevant to Ms liability under the Ski Safety Act. it was arguably relevant to issues of comparative fault. Moreover. the admission of the statutory warning did not unfairly prejudice Ms. Gifford in any way since it merely reiterated the terms of the Ski Safety Act. The judgment of the district court is AFFIRMED, and the cross-appeal is DISMISSED as moot. 7 Entered for the Court Mary Beck Briscoe Circuit Judge lino of Document 70h September 26, 2001, M filed a motion to supplement the record with two videotapes. Ms motion is granted. Seneca TRV301 CASE STUDY #5 .z' 0% of nal grade b' iv: Your task is to read, analyze and summarize the court ruling attached in the Assignment folder. Your Assignment must follow the structure and the instructions as outlined below: 1. Introduction/Opening: Identify me key problems and issues in the case study. Formulate and include a statement, summarizing the outcome of your analysis in 2- 3 sentences. 2. The Facts: Briey explain what transpired between the parties involved, mm the case was brought to court. 3. The Issues: Identify in a concise way the legal issues to be resolved by this particular court. Issues may include matters of fact or matters of law. 4. The Court's Decision and the reasoning Supporting the Decision: Report the Court's actual decision and summarize the reasons supporting it. 5. Conclusion: Do you agree with the court ? Why? Please note.- - 7hr's Assignment is NOT simply a summary of what has already been stated by the court. The thoughts you submit for the Conclusionm mm W If you use other authors' thoughts in the Conclusion this\" th' be considered plagiarism and you will receive a grade of " \" W even if you include citations for these thoughts. Your job here is to think for yourselves! - You may use external sourres to support your research W _each of TRV301