Originally Posted by tball
On the duty for Colorado ski areas to mitigate avalanches, I found the answer to my own question in the Conlin parent's complaint and Vail Corp's response.
Vail claims under Colorado law they have no duty to mitigate avalanches. They mitigate avalanches because it's an requirement of the USFS permit to operate the ski area.
So in Vail's eyes they have no legal liability to us skiers to close avalanche terrain, rather their liability is to the USFS in order to maintain their permit. That has significant legal implications and gives me some pause.
Here are the relevant sections from the complaint:
And Vail's response:
I'm surprised by this but probably shouldn't be. Somehow I've come to believe ski areas were required to protect us more from avalanches than other dangers on the hill, but it seems that's not the case.
Thanks for finding and posting this, I was wondering what was actually being claimed.
Since those duties claimed are obviously missing from The Ski Safety Act...???
I had posted this under the "Denver Post is Doing a Series..." thread, because I thought it was an interesting parallel. This is case deals with design vs. maintenance in regards to CGIA (Colorado Governmental Immunity Act). Bold emphasis is again mine, and here is a case summary introduction (link posted below):
Miranda & Alonzi, P.C., Christopher A. Miranda, Ronald A. Podboy, Denver, CO, Attorneys for Petitioners Jerry Medina and Mary Medina.Harding & Associates, P.C., Phil Harding, Jeffrey Pederson, Denver, CO, Attorneys for Petitioner Terri Hawkins.Ken Salazar, Attorney General, Elizabeth A. Weishaupl, First Assistant Attorney General, Friedrick C. Haines, Assistant Attorney General, Litigation Section, Tort and Complex Litigation Unit, Denver, CO, Attorneys for Respondents.
In this case, we clarify the relationship between “maintenance” and “design” under the Colorado Governmental Immunity Act (“CGIA” or “Act”), CGIA § 24-10-101 to -120, 7 C.R.S. (2001), thereby demarcating the scope of the state's duty to maintain a public highway. Plaintiffs, Terri Hawkins and Jerry and Mary Medina, were passengers on a charter bus traveling through Clear Creek Canyon on U.S. Highway 6 when a large boulder dislodged from a “cut slope” above the road and crashed through the roof, severely injuring Ms. Hawkins and Mr. Medina. Mr. Medina later died from his injuries. Ms. Hawkins and the Medinas each brought separate actions against the State of Colorado, the Colorado State Highway Patrol, and the Colorado Department of Transportation (collectively “the state”), among others. The trial court later consolidated these actions. In their amended complaints, both Plaintiffs alleged that the state was negligent in failing to maintain the highway. Ms. Hawkins specifically claimed that the state breached its duty to maintain the highway by negligently failing to install safety devices that would have prevented the boulder from falling. The Medinas, in addition to their failure to maintain claim, alleged that the state was negligent in failing to close U.S. Highway 6 to public travel, failing to warn the public that U.S. Highway 6 was unsafe for travel, and failing to recommend that the public use alternate routes.
The state, arguing that it is immune from liability under the CGIA, brought a motion to dismiss these claims for lack of subject-matter jurisdiction pursuant to C.R.C.P. 12(b)(1). The trial court denied this motion, and the state took an interlocutory appeal under CGIA section 24-10-108, 7 C.R.S. (2001). The court of appeals held that the CGIA precluded all but Plaintiffs' failure to maintain claim. Medina v. State, 17 P.3d 178, 182-83 (Colo.App.2000).
The CGIA waives governmental immunity in actions for injuries resulting from a failure to maintain a public highway, but not in actions for injuries solely attributable to the inadequate design of a public highway. § 24-10-106(1)(d)(I), 7 C.R.S. (2001); § 24-10-103(1), 7 C.R.S. (2001); Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1384-86 (Colo.1997). “Maintain” means to keep a road “in the same general state of being, repair, or efficiency as initially constructed,” Swieckowski, 934 P.2d at 1385, whereas “design” means to “conceive or plan out in the mind.” Id. at 1386. Logically then, the critical distinction is temporal: an injury results from a failure to maintain when it is caused by a condition of the road that develops subsequent to the road's initial design. An injury results from inadequate design, in contrast, when it is caused by a condition of the road that inheres in the design and persists to the time of the injury. The CGIA waives immunity only for the former. This construction is grounded in the legislature's expressed purpose for enacting the CGIA and best comports with our precedent interpreting it.
Here is the link if you want to read the rest. I think an avalanche 'inhers in the design' of ski resorts and that design 'persists to the time of injury'.
Here is the Colorado Governmental Immunity Act (CGIA) where you can read how design vs. maintenance are distinguished:
And here is the liability pool that certain governmental entities can and do participate in as opposed to buying liability insurance due to the CGIA being in practice. I have no reason to keep up on CGIA, but it appears the liability cap was raised this year and this is a summary produced by the Colorado Special Districts Property and Liability Pool. This sort of pool is designed to save money by allocating risk to the claimant under CGIA rather than paying insurable damages outright as part of a policy.
This is all interesting stuff in looking at how these statutes are implemented and litigated, and how things like 'failure to warn' can be precluded purely by the statute itself no matter how emotional and/or catastrophic the injury/loss may be.
Edited by NayBreak - 10/14/13 at 5:21pm