Originally Posted by anachronism
I guess I should also say that even if avalanches are not determined to be inherent risks, I fully support amending the law to declaring them inherent risks. Despite best efforts, shit slides. When the choice becomes to either never open the terrain (because it simply cannot be made 100% safe) or let people assume the risk, I want to have the option of assuming the risk.
This is how the act defines inherent risks:
(3.5) "Inherent dangers and risks of skiing" means 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; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or 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, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term "inherent dangers and risks of skiing" does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.
The definition includes "snow conditions as they exist or may change", but avalanches are excluded in this ruling from that categorization.
Having a gate open, even if one can hike upwards towards a closed gate, makes an avalanche the negligence of a ski area operator in what way? Not roping off the lower area isn't negligence if the terrain itself wasn't closed, and Vail doesn't suddenly assume a duty to have closed any access point to what was otherwise open terrain as long as the access point itself was considered safe.
The aspect of this that is frightening is that changing snow conditions can increase avalanche risk - how much of a resort much be roped off in this case and how quickly, and what about people who are already 'behind the lines' as conditions change? How do you become negligent in an avalanche? Is it failure to prevent? Failure to deny access? Failure to warn?