Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.

The decision came down as generally expected, an avalanche is snow and any type of snow is an inherent risk assumed by skiers and boarders as defined by the Colorado Skier Safety Act.

Fleury v. IntraWest Winter Park Operations Corporation, 2016 CO 41; 2016 Colo. LEXIS 532

State: Colorado, Supreme Court of Colorado

Plaintiff: Salynda E. Fleury, individually on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris

Defendant: IntraWest Winter Park Operations Corporation

Plaintiff Claims: negligence and wrongful death

Defendant Defenses: Colorado Skier Safety Act

Holding: for the defendant

Year: 2016

The deceased went  skiing at Winter Park. While skiing he rode a lift to Trestle Trees run, an inbounds run at Winter Park. An avalanche occurred, and the skier was killed.

The Colorado Avalanche Information Center, (CAIC) had been issuing warnings about avalanches based on new heavy snows. Winter Park admitted knowing about the warnings and knowing that there was the possibility of unstable snow on Trestle Trees run. Winter Park also never posted warning signs about the avalanche risk or closed runs.

Side comment: What would you do if you saw a sign that said warning, increased likelihood of avalanches today?

The plaintiff sued, and the trial court dismissed the case based on the Colorado Skier Safety Act (CSSA). The appellate court in a split decision upheld the trial court ruling. The Colorado Supreme Court granted certiorari and heard the case.

Certiorari is granted when an appeal to an appellate court to hear a case is approved. There is no automatic right of appeal to the Colorado Supreme Court for civil cases (most of the time) so the party that wants to appeal has to file an argument why the Supreme Court should hear their appeal. If the appeal is granted, then a Writ of Certiorari is issued telling the parties to bring their case to the court. Certiorari is Latin for “to be informed of, or to be made certain in regard to.”

When a Writ of Certiorari is granted, most times the arguments to be presented to the court are defined by the court.  Here the writ was issued to:

Whether, for the purposes of the Ski Safety Act (“SSA”) of 1979, codified at sections C.R.S. 33-44-101 to -114 (2014), the term “inherent dangers and risks of skiing,” as defined in C.R.S. 33-44-103(3.5) (2014), encompasses avalanches that occur within the bounds of a ski resort, in areas open to skiers at the time in question.

Probably, because of the value of the decision to the state, skiing is a big economic driver and because of the split decision at the Colorado Court of Appeals, the Supreme Court heard the case and issued this decision.

Analysis: making sense of the law based on these facts.

The entire issue revolves around interpreting once section of the CSSA. The words or phrases the Court liked at are highlighted.

C.R.S. §§ 33-44-103. Definitions.

(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

If an avalanche is an inherent risk as defined by the CSSA, then a skier/boarder/tele skier, etc., assumes the risk and cannot sue the ski area for any injury or claim.

Does the phrases weather conditions and snow conditions as they exist or may change encompass or the term Avalanche or can an Avalanche be defined by such phrases.

One obvious way in which a snow condition “may change” is through movement of the snow, including by wind and gravity. And at its core, an avalanche is moving snow caused by gravity. The dictionary definition of “avalanche” is “a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice.”

The court found that the phrases in the CSSA defined an avalanche.

At bottom, then, an avalanche is one way in which snow conditions may change. As alleged here, snow conditions started with fresh snow on unstable snowpack, and, within moments, changed to a mound of snow at the bottom of the incline. We therefore, conclude that Norris’s death is alleged to have been caused by changing snow conditions.

The decision was fairly simple for the court to reach.

Because an avalanche is, at its essence, the movement of snow, and is therefore, a way in which snow conditions may change, we hold that section 33-44-103(3.5) covers in-bounds avalanches. It follows that section 33-44-112 precludes skiers from suing operators to recover for injuries resulting from in-bounds avalanches.

There was a dissent to this opinion joined by one other judge who interpreted the issues along the arguments made by the plaintiff. An avalanche was not a snow condition but was an event. As such, it does not fall within the inherent risks of the CSSA.

The dissent was further supported by the idea that the statute was broad but the inherent risks were narrow in scope. If the legislature wanted avalanches to be included as an inherent risk, the legislature would have placed it in the statute when enacted, or anytime it has been modified since enactment.

So Now What?

Under the CSSA, an inbound movement of snow, an avalanche is an inherent risk of skiing and as such, a skier injured or killed by such snow assumes the risk of the injury.

The decision also provides some insight into how the court may interpret the risks of skiing in the future. In general, the CSSA is to be interpreted broadly. Skiing is a risky sport, and the CSSA was enacted to promote skiing and to identify, in advance the risk a skier must assume in Colorado.

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CSCUSA PR reminds people to be safe

Colorado Ski Country USA Reminds Skiers & Snowboarders to be Safe on the Slopes

Resorts Emphasize Safe Skiing, Prepare for Busy Holiday

 

Aspen Highlands, Michael Neumann

DENVER, Colo. – February 17, 2012– Colorado Ski Country USA (CSCUSA) and its 22 member resorts remind skiers and snowboarders to practice safe skiing and riding, know and follow Your Responsibility Code, be aware of surroundings and obey terrain closures.

“Guest safety is always the number one priority of our members,” explained Melanie Mills, CSCUSA president and CEO. “President’s Day weekend is a popular time to go skiing, and our resorts are doing absolutely everything they can to make sure guests are safe and have an enjoyable time on the slopes during this busy weekend.”

Individual skier and snowboarder responsibility is the foundation for safe skiing. Loveland Ski Area assistant patrol director and CSCUSA Ski Patroller of the Year, Joey Riefenberg, stresses the importance of being aware of your surroundings, “Skiers and snowboarders need to be proactive about safety, pay attention to who is skiing around you and always look downhill. Go slow and give yourself time to stop. Know that little kids are out and about and need a wide berth, watch where the flows are.”

CSCUSA member resorts across the state are taking extra measures to provide safe skiing environments, including constantly reassessing conditions. “Resorts are working super hard to make sure it’s safe. Everyone is super conscientious of that, and the snowpack,” said Riefenberg. “It’s a funny snowpack this year, really odd, and resorts are on alert, busy knocking all the air out of the snowpack and making sure everything is safe.”

Skiers and snowboarders are also reminded to obey all signage and be especially alert to obeying terrain closures. As snow continues to fall in Ski Country, resorts will open more terrain as conditions safely allow. “We’d love to open everything but things are closed for a reason, because it’s unsafe for you and unsafe for those who have to rescue you,” Riefenberg explained. “Nothing is being saved, we want everyone to have fun, but be safe doing it.”
Ultimately, it is the responsible behavior of skiers and riders that make the slopes safe. Knowing the nationally recognized Your Responsibility Code is crucial to skier and rider responsibility. Referred to simply as The Code, it is comprised of seven principles that collectively outline on-mountain skier etiquette and safe skiing practices.

Responsibilities within The Code include:

Skier carving a turn off piste

Image via Wikipedia

  • Always stay in control, and be able to stop or avoid other people or objects.
  • People ahead of you have the right of way. It is your responsibility to avoid them.
  • You must not stop where you obstruct a trail, or are not visible from above.
  • Whenever starting downhill or merging into a trail, look uphill and yield to others.
  • Always use devices to help prevent runaway equipment.
  • Observe all posted signs and warnings. Keep off closed trails and out of closed areas.
  • Prior to using any lift, you must have the knowledge and ability to load, ride and unload safely.

CSCUSA also reminds skiers, snowboarders and other snowsports enthusiasts heading into the backcountry to check with the Colorado Avalanche Information Center (CAIC) on the magnitude and nature of avalanche hazard they may encounter, do not venture out alone, and have proper equipment and education for the conditions. “Backcountry avalanche danger right now is considerable,” states Ethan Greene, director of CAIC. “With the holiday weekend there’s going to be powder snow and nice weather, but don’t be fooled that the hazard is anything less than very serious.”

More information on backcountry conditions can be found at the CAIC website, www.avalanche.state.co.us or by calling 303-499-9650.

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