The Colorado Supreme Court recently handed down a decision concerning a resort's liability when an avalanche occurs on its property. The case of Fleury v. IntraWest Winter Park Operations Corporation involves Colorado's Ski Safety Act of 1979 (SSA) which immunizes ski area operators in certain instances from liability for injuries skiers get while on their property. The court had to determine if an avalanche was an "inherent danger and risk of skiing." The court determined that it is.
The case stems from a wrongful death lawsuit filed by the widow of Christopher Norris after he died in an avalanche. Norris was "skiing on the 'Trestle Trees' run within the bounds of Winter Park Resort" when the deadly wall of snow hit. The court, accepting some allegations in the complaint as true, stated that at the time that Norris was killed "Winter Park knew about the avalanche warnings, the unstable snow on the Trestle Trees run, and the areas within the resort that were most susceptible to avalanches on January 22, including Trestle Trees, but it neither closed the run nor posted signs to warn skiers of the avalanche risk."
After the lawsuit was filed, Winter Park argued that "that the SSA barred the lawsuit because avalanches constitute an inherent risk of skiing under the statutory definition." The trial court and a divided appellate court agreed. However, one appellate court judge dissented contending that the statute did not expressly include avalanches, that he would categorize an avalanche as an event instead of a weather condition, and that avalanches can be caused by other things "including human action."
In order to clarify the definition at issue, namely what is included in "inherent dangers and risks of skiing," the Colorado Supreme Court took up the case.
The court stated that the "SSA recognizes that certain dangers and risks 'inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed' by ski area operators." As such the Act prevents skiers from holding ski area operators liable when they are injured as a result of something that is an "inherent danger and risk of skiing." The court then looked at the definition of "inherent dangers and risks of skiing" currently in the Act, finding that "[t]he phrase 'snow conditions as they exist or may change' encompasses avalanches that occur within the bounds of a ski resort." The court reasoned that "an avalanche is one way in which snow conditions may change," and concluded that in Norris' case, his death "is alleged to have been caused by changing snow conditions." The court also did not agree that an avalanche is an 'event' as argued by the dissenting appellate court judge.
While many things can be considered an inherent risk of skiing, such as an avalanche, this does not immunize resorts from all liability. In fact, the court stated that the SSA "specifically excludes 'the negligence of a ski area operator as set forth in section 33-44-104(2)' from this definition and does not immunize operators for 'injuries caused by the use or operation of ski lifts.'"
It will be interesting to see how this new ruling affects ski injury cases in the years to come. If you or a loved one has been injured while skiing, please do not hesitate to contact the Law Firm of Jeremy Rosenthal.