Originally Posted by anachronism
In my eyes, statements like that open up a valid argument as to whether the ski area is properly informing people of the risks involved- claiming something is an inherent risk of the sport (always present and cannot be completely mitigated), and then claiming that such a risk is not present at one particular ski area (the patroller's obvious bullshit statement)- is that opening up a different avenue of liability not included in the law? It is advising somebody not to do their own due diligence regarding risk, because the presumed expert and resort official (patroller) states the risk is not present, and thus not inherent.
It doesn't matter. This suggests liabilty on the premise of reliance ("I relied on a ski patroller who told me it was safe"), but the statute is clear:
CRS §33-44-102. Legislative declaration.
The general assembly hereby finds and declares that it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them. Realizing the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed, the purpose of this article is to supplement the passenger tramway safety provisions of part 7 of article 5 of title 25, C.R.S.; to further define the legal responsibilities of ski area operators and their agents and employees; to define the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.
I hope we all understand that the courts are bound by the express statement of legislative intent. The second bolded section above explicitly removes reliance as a principle of liabilty and establishes statutory liabilty. As to which follows:
CRS §33-44-112. Limitation on actions for injury resulting from inherent dangers and risks of skiing.
Notwithstanding any judicial decision or any other law or statute to the contrary, including but not limited to sections 13- 21-111 and 13-21-111.7, C.R.S., no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing
The only question here is whether avalanches are an inherent danger of skiing. If no, it is completely irrelevant what anybody else has said. The willful and wanton misconduct claim in the Vail case has already been dismissed.
If yes, then the question is whether the SSA still governs. If yes, derivative (third party) claims are limited to $250K:
CRS §33-44-113. Limitation of liability.
The total amount of damages which may be recovered from a ski area operator by a skier who uses a ski area for the purpose of skiing or for the purpose of sliding downhill on snow or ice on skis, a toboggan, a sled, a tube, a ski-bob, a snowboard, or any other device and who is injured, excluding those associated with an injury occurring to a passenger while riding on a passenger tramway, shall not exceed one million dollars, present value, including any derivative claim by any other claimant, which shall not exceed two hundred fifty thousand dollars, present value, and including any claim attributable to noneconomic loss or injury, as defined in sections 13-21-102.5 (2), C.R.S., whether past damages, future damages, or a combination of both which shall not exceed two hundred fifty thousand dollars.
If no, meaning avalanches are deemed effectively to be governed outside of the statute governing ski area liabilty, then there is exposure to common law negligence damages.
With so little money on the table under the liability cap, the plaintiff faces two hurdles. The first is that avalanches have to be deemed not an inherent risk of skiing, which reads counter to the legislative declaration to me. Second, is that the SSA somehow doesn't govern liabilty at a ski resort when that is its stated legislative intent.
I could see a possible ruling in favor of the plaintiff overturning the lower courts on the point of inherent risk, but still applying the SSA cap of $250K. To me, a ruling that essentially vacates the SSA for liabilty on resort is way over reaching (read the bold section just above - that certainly covers avalanches?) and entirely different than the question of inherent risk alone. We should understand that this is what the plaintiffs are pursuing. Otherwise the recovery money is already gone and the only winner is the resort's outside counsel who can recover all billable hours.
Just for emphasis, let's all read this again:
The total amount of damages which may be recovered from a ski area operator by a skier who uses a ski area for the purpose of skiing
Was the skier killed in the WP avalanche using the ski area for skiing? Yes.
including any derivative claim by any other claimant, which shall not exceed two hundred fifty thousand dollars
Is the plaintiff pursuing a derivative claim? Yes. The injured party is deceased.
So where is the money here for two extended appeals?Edited by NayBreak - 4/10/15 at 2:55pm