Colorado Supreme Court: Are avalanches inherent risk of resort skiing?
The first salvo in the Colorado Supreme Court's upcoming consideration of the so-called "inherent risks" of skiing — which have protected ski areas since 1979 as part of the Colorado Ski Safety Act — has been fired by the widow of a man killed in an in-bounds avalanche at Winter Park ski area three years ago.
Salyndra Fleury's attorneys this month filed their opening brief in a case that could have sweeping ramifications for the often-copied law that assigns responsibilities to both skiers and resorts and limits a ski area's liability when skiers are injured or killed.
The brief focuses on potential ambiguity in the Ski Safety Act, which does not include avalanches in a list of inherent risks that skiers must acknowledge when skiing at a resort.
While the resort industry argues the risk of avalanches inside ski area boundaries is implied as a danger of changing weather and snow conditions, the Fleury argument could upend legislation that has protected Colorado resorts from lawsuits for more than 25 years.
"Inferring the term 'avalanche' as an inherent risk or danger would essentially immunize ski operators from any liability, leaving them free to recklessly create hazards without consequences,"reads Fleury's filing by attorney Jim Heckbert. "Is a skier expected to know that avalanche is an inherent risk, when she parks her car in the lot downhill from the ski run to finish her morning coffee and is engulfed by an avalanche carelessly caused by ski area employees?"
Fleury's husband, 28-year-old Chris Norris, was killed in an avalanche while skiing the trees off the Trestle trail at Winter Park's Mary Jane ski area on Jan. 22, 2012.
Fleury, whose wrongful death lawsuit is seeking damages beyond the $250,000 cap set by the Ski Safety Act, argues Winter Park knew avalanche danger was high and should have closed the Trestle Trees area.
Grand County District Court Judge Mary Hoak in 2012 dismissed the case, agreeing with Winter Park's argument that avalanches are an inherent risk of skiing.
The Colorado Court of Appeals in February 2014 affirmed Hoak's ruling in a 2-1 decision, arguing that avalanches "fall neatly into the examples of dangers in the (Ski Safety) Act."
The court's majority ruled the Ski Safety Act's list of risks — such as changing weather and snow conditions and steep terrain — encompasses avalanches. "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.
The state's highest court in December agreed to hear Fleury's appeal. Her attorneys are focusing on the dissenting opinion of appeals court Judge Jerry Jones, who noted ambiguity in the act.
"An ambiguity which must be resolved by concluding that there is no immunity for injuries resulting from avalanches," Jones wrote.
Before it was amended in 1990, the Ski Safety Act introduced the lengthy list of inherent dangers of skiing with the phrase "including, but not limited to ... "
The Fleury brief details committee discussion of a 1990 amendment that removed the phrase "but not limited to" from the act. The removal of those words proves legislators meant the list of inherent risks to be definitive, her lawyers argue.
Not true said Scott McInnis, the Republican state representative whose district was home to several ski areas. His 1990 bill amended the act.
McInnis remembers the ski industry was suffering under high liability insurance premiums during his tenure in the state house.
"We thought that some skiers were going to be priced out because of all the litigation and lawsuits," said McInnis, who now serves as a Mesa County commissioner. "I was very protective of the sport of skiing. If anything, my intent was to expand protection for ski areas. Anytime I did anything with the ski act, trial lawyers really opposed me."
In-bounds avalanches extremely rare
In the last 40 years or so, Colorado resorts have seen three skiers killed in an in-bounds avalanche: Christopher Norris at Winter Park and Taft Conlin at Vail in January 2012 and David Conway at Arapahoe Basin in May 2005, which was reported by the Forest Service as the first in-bounds avalanche fatality at a Colorado ski resort in 30 years. Since 1975, Colorado ski areas have logged about 395 million skier visits.
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