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.
The 2-1 decision, which immunizes resorts from claims after avalanche-related deaths or injuries, is the first of its kind in the country, said Jim Chalat, a Colorado ski attorney. He said the decision is likely to influence courts in other states with similar ski-safety laws.
"There hasn't been a prior case where an avalanche (on an open run) is considered a statutory inherent risk of skiing," said Chalat, who has practiced ski law for more than three decades.
While the Colorado ski-safety act — which spells out responsibilities for skiers and snowboarders and grants immunity to ski operators from "inherent dangers" of the sport — does not specifically refer to avalanches, it does include changing snow and weather conditions.
"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."
"If the General Assembly wishes to hold ski areas accountable for avalanche-related injuries or deaths," the judges wrote, "it should amend the act."
The ruling, which is expected to be appealed to the Colorado Supreme Court, follows increased avalanche warnings in the state this week and the deaths of two people in backcountry avalanches.
The wrongful-death suit was brought by the wife of Christopher Norris, a 28-year-old who died in an inbounds avalanche in Winter Park's Trestle Trees in 2012. The morning of the day that the father of two 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 is encouraged by the opinion of the dissenting judge, Jerry Jones.
"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" in its list of inherent dangers.
Jones wrote that other states with similar statutes, such as Idaho, New Mexico and Utah, also don't list avalanches on open runs as an inherent risk of skiing. And Montana, he said, went so far as to add avalanches to their assumed dangers — "except on open, designated ski trails."
"I think this indicates at the very least some ambiguity in Colorado's statute — an ambiguity which must be resolved by concluding that there is no immunity for injuries resulting from avalanches," he wrote.
The appellate court's decision may also impact another high-profile case in Colorado: the wrongful-death suit brought against The Vail Corp. by the parents of 13-year-old Taft Conlin, who died in an avalanche on Prima Cornice run two years ago. Broomfield District Court Judge Patrick Murphy rejected Vail's defense that avalanches were an inherent risk of skiing.
However, Conlin's parents also have a claim that Vail violated the ski act when it closed the top part of Prima Cornice but not the gate to the lower entrance. The parents assert that the law requires ski operators to close all entrances to a closed run. Vail has argued that Conlin, who sidestepped up into an area between the two entrances, "knew or reasonably should have known that the slope uphill from the gate was closed."
Karen E. Crummy: 303-954-1594, firstname.lastname@example.org or twitter.com/karencrummy