Ruling broadens ski industry immunity
By Bob Berwyn
FRISCO — Skiers and snowboarders in Colorado may want to start carrying their avalanche gear at developed resorts, after an appeals court ruled last week that avalanches are one of the many inherent risks of skiing on lift-served terrain.
The Colorado Court of Appeals decision (announced Feb. 13) stems from a deadly January 22, 2012 avalanche at Winter Park resort, when Christopher Norris died while skiing an open, inbounds run at Winter Park known as Trestle Trees. As it stands, the ruling broadens the almost unprecedented immunity that ski resorts have from being held liable for accidents, including inbounds avalanches.
Represented by Steamboat Springs attorney Jim Heckbert, Norris’ widow, Salynda E. Fleury, sued Winter Park operator IntraWest, alleging that negligence on the part of the company led Norris to a wrongful death. A separate inbounds avalanche on the same day killed a teenage skier on a popular run at Vail Ski Area.
According to court documents, Fleury claimed that IntraWest knew or should have known that an avalanche was likely to occur on Trestle Trees on January 22, 2012, and that IntraWest’s failure to warn skiers about the likelihood of avalanches or failure to close Trestle Trees caused Mr. Norris’s death. Ms. Fleury sought an unspecified amount of economic and noneconomic damages, and punitive damages for IntraWest’s alleged willful and wanton conduct.
Intrawest argued that inbounds avalanches are one of the inherent risks and dangers of skiing as defined by the Colorado Ski Safety Act — which doesn’t specifically mention avalanches.
At issue in the case was whether the Colorado General Assembly meant to include inbounds avalanches as one of the inherent risks of skiing when it passed the Ski Safety Act. Two of the appeals court judges said yes, citing this section of the Act:
” … those dangers or conditions that are 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, corn, crust, slush, cut-up snow, and machine-made snow; [and] variations in steepness or terrain, whether natural or as a result of slope design[.]“
Displaying a remarkable ignorance of skiing and ski terrain, the two judges likened the avalanche (which moves at high speed) to a cornice (which doesn’t move at all). The court’s decision also acknowledges that the Colorado Legislature has increasingly broadened ski area operators’s immunity for skier injuries.
“If the General Assembly wishes to hold ski areas accountable for avalanche-related injuries or deaths, it should amend the Act,” the ruling concludes.
One member of the three-judge panel dissented, arguing that, because the Ski Safety Act doesn’t specifically mention avalanches, resorts shouldn’t enjoy immunity from liability from injuries or deaths resulting from inbounds avalanches.
“The majority errs, I believe, in giving the definition of “inherent dangers and risks of skiing” in subsection 33-44-103(3.5) an expansive reading rather than a narrow one,” Judge Jerry Jones wrote in his dissent. “Avalanches are not mentioned in that definition … The majority concludes that they are nevertheless included within the definition by cobbling together three categories of covered dangers and risks — “changing weather conditions,” “snow conditions as they exist or may change,” and “variations in steepness and terrain.” Fundamentally, I believe that approach contravenes the governing principles that a statute’s grant of immunity must be strictly construed, may not be expanded by construction, and must appear expressly or by clear implication,” Jones wrote.