^^^^Yes, damages are capped at $250K unless you can get an exclusion from the SSA, at which point the plaintiff apparently could pursue common law negligence. That latter point is why the avalanche as not inherent risk leads both cases, because it maybe gets you out from under the SSA and its cap.
Keep in mind the first claim on avalanche as inherent risk has not been dismissed. That's been my entire protest to hearing people want to see this one through. If a claimant can pursue anything not on the SSA list under common law negligence, then the cap is also gone say for moguls. And when is an operator negligent for moguls? And what happens in that case (besides grooming)?
Now I think the first claim has zero chance and would be reversed on appeal if needed, but I am personally happy with the WP ruling and its affirmation of precedent on interpretation of the SSA.
The second claim probably comes down to one point:
Plaintiff's claim uses the term Prima Cornice Trail. Vail's defense uses the terms Upper Prima Cornice Trail and Lower Prima Cornice Trail. The U and L in CAPS means a lot in terms of closure.
On Vail's trail map PDF, you only see Prima Cornice trail, but that trail is the traverse. The rest is not named and the slide did not happen on the named map trail (or is Vail's printed map more detailed?) The Crummy press on the dismissed part of the case may well have Vail interested in defending itself and having any final ruling a technicality around the naming of the trail. The rest of it isn't going to show up anywhere in case law unless SSA gets severely weakened in this case.
Edit: Take a look at what Kumar v. Copper has to say. This case was appealed, and this is from the ruling on appeal:
a ski area operator may be liable under one of two theories. First, a skier may recover if his injury did not result from an inherent danger or risk of skiing. Such a claim would fall outside the scope of the SSA and would be governed by common-law negligence principles. Second, a ski area may be liable because it violated a provision of the SSA and that violation resulted in injury.
This is why you go after avalanche as not an inherent risk. From there, you get duty to warn and there aren't any statutory liability caps. I don't think Vail can afford to settle on this point - it's entire business model is defined by the SSA.
Kumar’s assumed duty argument fails for a more fundamental reason. In revising the SSA in 2004, the Colorado General Assembly recognized “the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed.” § 33-44-102. A ski area operator is negligent for failure to warn only when it violates the specific and detailed warning requirements of the SSA as set forth in §§ 33- 44-106 and 107. And as we discuss below, Celebrity Cornice did not qualify as a feature requiring warning signs under those sections.
Some similarity here - the part about requiring signs when the access gate is closed and signed.
Consistent with the legislature’s recognition of the dangers of skiing and its goal of clearly defining a ski area’s potential liability, the language of § 33-44-103(3.5) is clear: “inherent dangers and risks of skiing” should be read to include accidents like Kumar’s, in which a skier is injured skiing over a feature that was not subject to the SSA’s explicit signage requirements. Although the SSA provides that additional signs “may be posted at the discretion of the ski area operator,” § 33-44-106(g)(2), such signage is optional. Contrary to Kumar’s claim, a ski area operator has no assumed duty to post such discretionary signs.
Prima Cornice trail is a traverse on the maps. Is the area below still that trail?
Yet such a reading of § 33-44-107(d) leads to the absurd result that individual skiers may define the extent of a ski area operator’s liability merely by nicknaming some part of a mountain.
This deals with the neither skiers nor ski resort employees being able to name a part of the mountain that isn't formally designated by the resort operator, and then creating liability based on that common understanding. That seems awfully relevant here. See bold text below:
Under this reading, the ski area operator must mark those areas of its slopes which contain “freestyle terrain” and which are designated for freestyle use, such as terrain parks and aggregations of terrain park features. See C.R.S.A. § 33-44-103(3.3). This reading is consistent with both the text and the purpose of the SSA. Having eliminated the other possible entities that could be responsible for specifying freestyle terrain areas, we conclude that specification by ski area operators is the most plausible interpretation of this provision.
The full link. It appears that the CO legislature did refine the definition of inherent risks in 2004 (IIRC) to deal with precedent set by Graven v. Vail, and one wonders if they would do it again should the SSA get weakened in this case. This case talks a lot about 'areas' in relation to signage - it seems pretty relevant to me since the 'trails' of upper and lower are unmarked by the resort on the map.http://www.gpo.gov/fdsys/pkg/USCOURTS-ca10-09-01559/pdf/USCOURTS-ca10-09-01559-0.pdfEdited by NayBreak - 10/26/13 at 11:52am