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Avalanches are an "inherent risk of skiing" according to the Colorado court of Appeals

post #1 of 27
Thread Starter 

Court: Avalanches on open runs at Colorado ski resorts are inherent danger

By Karen E. Crummy
The Denver Post
Posted:   02/13/2014 10:09:16 AM MST | Updated:   about 3 hours ago5 comments

 

 
Christopher Norris
Christopher Norris, 28, died in an inbounds avalanche while skiing on the Mary Jane side of Winter Park in 2012. (handout)

Avalanches within the boundaries of open runs at Colorado ski resorts are an inherent danger of skiing, barring claims from those who die or are injured on the slopes, the Colorado Court of Appeals ruled in a 2-1 decision Thursday.

Although the state's ski safety act — which spells out responsibilities for skiers and snowboarders and grants immunity for ski operators from "inherent dangers" of the sport — did not specifically refer to avalanches, changing snow and weather conditions are included.

"An avalanche is itself a danger resulting from certain conditions of snow, and the degree of danger is affected by 'changing weather conditions' across 'variations of steepness and terrain,' the majority wrote. "We thus construe the definition of inherent dangers and risks of skiing . . . to include an avalanche."

The ruling follows increased avalanche warnings in the state and the death of two people who died in backcountry avalanches.

The case is expected to be appealed to the Colorado Supreme Court.

The wrongful death suit was brought by the wife of Christopher Norris, a 28-year-old father of two, who died in an inbounds avalanche in Winter Park's Trestle Trees in 2012. The morning of the day he died, the Colorado Avalanche Information Center warned of "widespread dangerous avalanche conditions" and recommended that skiers and snowboarders "enjoy the powder in the safety of the ski area."

His wife, Salyndra Fleury, argued that the ski area was aware of danger warnings and "knew or should have known" that the tree area was unsafe. But Grand County District Court Judge Mary C. Hoak ruled the resort wasn't required to post warning signs or close the run. Avalanches, she said, are an inherent danger of skiing. The appellate court upheld her decision.

Winter Park representatives declined to comment.

Fleury's attorney James Heckbert said his client is "disappointed" with the ruling, but finds "encouragement in the opinion of the dissenting judge " Jerry Jones.

avalanche mitigation
Avalanche mitigation work brought down a slide near U.S. 6 on Feb. 11, 2014. (7NEWS)
 

"It is not as if avalanches are unheard of occurrences in mountainous areas, or even on or near ski areas," Jones wrote. "And yet the General Assembly — despite formulating a lengthy definition identifying numerous specific conditions and events — did not expressly (or otherwise clearly) include avalanches."

Karen E. Crummy: 303-954-1594, kcrummy@denverpost.com or twitter.com/karencrummy


Read more: Court: Avalanches on open runs at Colorado ski resorts are inherent danger - The Denver Post http://www.denverpost.com/news/ci_25132949/court-avalanches-open-runs-at-colorado-ski-resorts#ixzz2tEw2tgIb
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http://www.denverpost.com/news/ci_25132949/court-avalanches-open-runs-at-colorado-ski-resorts

post #2 of 27

Interesting. Will definitely go to the Colo Supreme Court

 

Anyone familiar with that area of Winter Park?


Edited by Tog - 2/13/14 at 2:04pm
post #3 of 27
Quote:
Originally Posted by Tog View Post
 

Interesting. Will definitely go to the Colo Supreme Court

 

Anyone familiar with that area.

Yeah, it gets skied all the time.  Easy access, very popular.  I'm not sure exactly where in those trees the avy happened but it can get kind of cliffy in there.  IIRC it was a terrain trap situation.

post #4 of 27
Quote:
Originally Posted by bumpfreaq View Post
 

Yeah, it gets skied all the time.  Easy access, very popular.  I'm not sure exactly where in those trees the avy happened but it can get kind of cliffy in there.  IIRC it was a terrain trap situation.

Yes, it was a very strange, unlucky thing. Basically a bunch of snow fell off a rock onto him while he was under it, or something like that. Very very small avalanche. He was just in the wrong place at the wrong time... scary and sad, but nothing really can be done about things like that.

post #5 of 27
Interesting this went to appeals, thanks for posting it up. The original case judge wrote a compelling argument on avy as inherent risk in CO that is worth a read for those interested.
post #6 of 27

Today, the Colorado Court of Appeals ruled that Winter Park is not liable for the death of a skier killed by an in bounds avalanche on an open run. You can read the decision here:

 

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2014/13CA0517-PD.pdf

 

I don't know about you, but I have always thought ski areas were responsible for controlling avalanches within their boundaries or that they would close avalanche prone terrain until they got the avalanche danger under control. Should people now be concerned about avalanches when skiing in bounds? Should everyone start carrying shovels, probes and transceivers while skiing in bounds?

post #7 of 27
post #8 of 27

In all likelihood, the Colorado Supreme Court will hear this. In the meantime, Colorado ski areas are not responsible for deaths and injuries from in bounds avalanches on open runs. I don't think anybody every thought this was the case. The same day as the Winter Park avalanche, another avalanche killed a kid in Vail. That case has been in litigation too and the entire focus of the case has been whether the kid that was killed was skiing a closed run. I think Vail was assuming all along that if the dead skier was on an open run, they'd be liable. After this case, it won't matter.

 

Colorado ski areas will have to have a new marketing slogan: "Come ski Colorado! Bring your beacon!"

post #9 of 27

Avalanches within the boundaries of open runs at Colorado ski resorts are an inherent danger, and operators do not have to warn skiers or close runs, even when risk is high, the Colorado Court of Appeals ruled Thursday.

 

http://www.denverpost.com/news/ci_25132949/court-avalanches-open-runs-at-colorado-ski-resorts

 

The ruling was released last Thursday.

post #10 of 27

My first thought is a question. How many inbounds avy deaths have there been?

post #11 of 27
Quote:
Originally Posted by wooley12 View Post
 

My first thought is a question. How many inbounds avy deaths have there been?

37 since 1950

11 since 2002

 

http://avalanche.state.co.us/accidents/statistics-and-reporting/

post #12 of 27

We're going to be seeing more of this unfortunately.  "Inbounds" seems to be including more and more terrain that wouldn't have been lift served and in bounds 30 years ago.  However, steeper and deeper is what people want so resorts are trying to serve more of it up for us.  In the end, the more terrain in bounds terrain there is that requires avy maintenance, the higher the likelihood of something going wrong with that avi maintenance and management.  I'm glad for the decision though.  If it had gone the other way we'd probably see resorts dialing back from the sketchier terrain that we can currently access in bounds due to fear of lawsuits.  Caveat Emptor. 

post #13 of 27

15 years. 11 avy deaths and 500 other ski fatalities in 7,000,000,000 skier days. Just putting it into a risk vs reward perspective if my numbers are right.

 

20+ in of new snow overnight at the mountain and I was planning to ski this afternoon when the road opens. Maybe I should go bowling?

post #14 of 27

Hopefully we will see the same reasoning here with tree wells. Boxing out every natural risk in a sport which takes place in a natural arena is not possible.

 

That said, I would hope a ski area would at least take some step to warn people that the danger exists. Such a good faith warning would certainly be easy to accomplish. It's fair to say a lot of people show up to ski for their vacation not suspecting that the slope above the cat track they are on could avalanche, or understanding that such a thing as "tree wells" exist and are a real danger.

post #15 of 27

How about a sign at the ticket booth.

 

                                                                   IF YOU SKI HERE YOU MIGHT DIE 

                                                                BUT WE ALL HAVE TO GO SOMETIME

 

                                                                      GOOD LUCK AND HAVE FUN

                                                                                                                                     THE MANAGEMENT

 

Would make for some wide open slopes for us daredevils


Edited by wooley12 - 2/17/14 at 10:57am
post #16 of 27

I merged 3-threads on the same topic.  Hopefully it all reads logically.

post #17 of 27

It's not an avalanche but I think the hazard falls under the same category -- another tree well death at Whitefish:

 

http://www.flatheadbeacon.com/articles/article/skier_dies_at_whitefish_mountain_resort/37892/

post #18 of 27
Quote:
Originally Posted by cloudcult View Post

Hopefully we will see the same reasoning here with tree wells. Boxing out every natural risk in a sport which takes place in a natural arena is not possible.

That said, I would hope a ski area would at least take some step to warn people that the danger exists. Such a good faith warning would certainly be easy to accomplish. It's fair to say a lot of people show up to ski for their vacation not suspecting that the slope above the cat track they are on could avalanche, or understanding that such a thing as "tree wells" exist and are a real danger.

Copper has some tree well signs up, saw one yesterday. That's different than avy signs. Resorts will close avalanche prone terrain that is cat accessed for mitigation work, for example, but do not close tree skiing areas.

For those who think that CO courts are going to remove avalanche from inherent risks, take a look at Montana's law:

(2) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including:

(a) changing weather conditions;

(b) snow conditions as they exist or as they may change, including ice, hardpack, powder, packed powder, wind pack, corn snow, crust, slush, cut-up snow, and machine-made snow;

(c) avalanches, except on open, designated ski trails;
post #19 of 27

Yes, Montana law specifically says avalanches on open designated runs are not an inherent risk of skiing.   

 

But Colorado's law does not, and the judges who made the ruling said that if the legislature wanted to have that exception they should have made it explicit.  Maybe they will, but I wouldn't hold my breath.

post #20 of 27

If we all want to continue to ski the trees and other "natural" terrain in the ski area controlled by patrol, we'd best hope this stands up. Otherwise, we'll end up with the European model where only the specific, marked  pistes  are considered controlled and everything else, including within the boundaries of the area, are basically backcountry.

 

The Trestle trees accident was a freak occurrence. It is not a marked run, but the trees along side of a winding run called Trestle. These trees are skied a lot. It was hardly even an avalanche from what I'd heard. As Seg noted, I too heard that it was a pile of snow built up on a rock under which the victim was standing and it fell off and buried him. So sad.

 

But could the ski patrol possibly have eliminated all such risk within bounds, all over the mountain, not just on the named runs? No. It is not and cannot ever be perfect. We are so lucky here to have controlled in-bounds wilderness-like terrain to play in, I for one and grateful for safer, if not without risk.

post #21 of 27
Quote:
Originally Posted by Walt View Post

Yes, Montana law specifically says avalanches on open designated runs are not an inherent risk of skiing.   

But Colorado's law does not, and the judges who made the ruling said that if the legislature wanted to have that exception they should have made it explicit.  Maybe they will, but I wouldn't hold my breath.

Exactly. If you want to exclude avalanches inbounds, you do so. Only took Montana six words.
post #22 of 27
Quote:
Originally Posted by NayBreak View Post


Exactly. If you want to exclude avalanches inbounds, you do so. Only took Montana six words.

 

And how many millions of dollars do you think it would take to add those six words to the Colorado ski safety act?

post #23 of 27
Quote:
Originally Posted by Walt View Post

And how many millions of dollars do you think it would take to add those six words to the Colorado ski safety act?

I don't think it matters, and I don't support adding liability to ski resorts for avalanches. My point was that CO didn't include those six words, and avalanches are an inherent risk of skiing in this state.

It be argued that MT's law better protects the resort operators, because avalanches are included in the statute and subject to whatever liability cap MT has set. In CO, the point of pursuing this is that if you get avalanches excluded, you also get out from under the CO Ski Safety Act, and then you can pursue damages for ordinary negligence without the $250K statutory cap in this case. If they can get the CO Supreme Court to break precedence on SSA interpretation (moving to a 'if not listed not covered' meaning) then the CO legislature will probably have to act.

I don't think any of this has any meaning in terms of implementing best practices for avy control. Liability is not the sole motivator in safety practice.
post #24 of 27
I need to read that decision. Why are they calling a tiny slide in a discrete area an avalanche? Wouldn't that make a tree well death from sluffing snow an avalanche death? Does the ruling mean that ski areas don't need to do avalanche control for liability purposes? Why do Montana areas bother?
post #25 of 27
Quote:
Originally Posted by litterbug View Post

I need to read that decision. Why are they calling a tiny slide in a discrete area an avalanche? Wouldn't that make a tree well death from sluffing snow an avalanche death? Does the ruling mean that ski areas don't need to do avalanche control for liability purposes? Why do Montana areas bother?

 

It was a tiny slide, not a tree well:

http://avalanche.state.co.us/caic/acc/acc_report.php?acc_id=433&accfm=inv

 

Though not necessary for liability purposes, most ski areas are required to do avalanche control as part of their permit with the forest service.

 

Here's video of what those trees looked like that day from another party.  Very dangerous.

 

 

 

The wife of the victim posted comments to that video.  So very sad.

post #26 of 27
Quote:
Originally Posted by tball View Post

It was a tiny slide, not a tree well:
http://avalanche.state.co.us/caic/acc/acc_report.php?acc_id=433&accfm=inv

Most ski areas are required to do avalanche control as part of their permit with the forest service.
I know it was a slide; I was somewhat facetiously comparing snow sluffing from a rock with suffocating from snow sluffing within a tree well. Not a fair comparison, I know, but unless I misunderstand the scenario equally hard to control for by the ski area.

ETA: boy, I just watched that video, and I'd be worried if I were up there. The skier was below the outcrop, though, which wouldn't seem dangerous to a naive skier, who might not even recognize that snow that's 'so very slabby' signifies danger. Like you say, sad.
post #27 of 27
Quote:
Originally Posted by litterbug View Post

Does the ruling mean that ski areas don't need to do avalanche control for liability purposes?

Yes. In terms of CO state law. @tball makes a good point that ski operators that are leasing public land may face commercial liability in their contracts with USFS.
Quote:
Why do Montana areas bother?

MT areas are liable. And you don't want your customers to face inbound avalanche risk. I doubt that CO and MT ski areas are employing different standards for avy control, including terrain closure.
Edited by NayBreak - 2/22/14 at 8:44pm
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