June 27, 2019

Colorado Supreme Court: Avalanches are Inherent Risks or Dangers of Skiing

The Colorado Supreme Court issued its opinion in Fleury v. IntraWest Winter Park Operations Corp. on Tuesday, May 31, 2016.

Ski Safety Act of 1979—Statutes—Immunity Statutes—Plain Language—Plain, Ordinary, Common, or Literal Meaning—Public Amusement and Entertainment—Skiing and Snowboarding.

The Supreme Court held that an avalanche that occurs within the bounds of a ski resort qualifies as an “inherent danger[] and risk[] of skiing” under the Ski Safety Act of 1979, C.R.S. §§ 33-44-101 to -114. The definition of “inherent dangers and risks of skiing” in C.R.S. § 33-44-103(3.5) specifically includes “snow conditions as they exist or may change.” By its plain meaning, this phrase encompasses an in-bounds avalanche, which is, at its core, the movement or changing  condition of snow. As such, C.R.S. § 33-44-112 precludes skiers from recovering for injuries resulting from in-bounds avalanches.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Avalanche is Inherent Risk of Skiing Under Ski Safety Act

The Colorado Court of Appeals issued its opinion in Fleury v. IntraWest Winter Park Operations Corp. on Thursday, February 13, 2014.

Ski Resort—Avalanche—Wrongful Death—Negligence—Inherent Risk—Ski Safety Act.

This case arose from the death of Christopher Norris, who was killed by an avalanche while skiing on a run known as Trestle Trees/Topher’s Trees (Trestle Trees) at Winter Park Resort, which is operated by IntraWest Winter Park Operations Corporation(IntraWest). Norris’s wife, Salynda E. Fleury, individually and on behalf of her minor children, asserted claims for negligence and wrongful death. The district court granted IntraWest’s motion for determination of law and judgment on the pleadings, ruling that an avalanche is an inherent danger or risk of skiing under the Ski Safety Act (Act) and therefore IntraWest was not liable for Christopher Norris’s death.

On appeal, Fleury contended that the district court erred in determining that the avalanche was an inherent risk of skiing under the Act. The Act provides examples in defining the inherent dangers and risks of skiing; however, this list in not exclusive. Giving effect to the plain meanings of the words in the Act, an avalanche fits the definition of inherent dangers and risks of skiing.

Fleury also argued that IntraWest was liable for her husband’s death because it failed to close Trestle Trees and failed to warn skiers about the avalanche danger on the day he was killed. The Act enumerates specific sign requirements and does not require ski area operators to warn skiers of possible avalanches or to close slopes with avalanche danger. Therefore, IntraWest was under no duty to post a warning sign at Trestle Trees or to close it on the day in question. Therefore, the district court properly dismissed Fleury’s claims against IntraWest, and the judgment was affirmed.

Summary and full case available here.

Obama Signs New Law to Permit Year-Long Recreation Opportunities on Forest Service Ski Areas

On Monday, November 7, 2011, President Obama signed H.R. 765, the “Ski Area Recreational Opportunity Enhancement Act of 2011,” into law. The new legislation clarifies the authority of the Secretary of Agriculture regarding additional recreational uses of National Forest System land that is subject to ski area permits.

According to Summit Daily, the Ski Area Recreational Opportunity Enhancement Act “permits year-long recreation opportunities on U.S. Forest Service ski areas, boosting rural economies while continuing to maintain stringent environmental safeguards.”

The new legislation amends the National Forest Ski Area Permit Act of 1986, which allowed only Nordic and alpine skiing. Under the new legislation, other snow sports may be permitted on National Forest System lands, as well as year-round activities. Potential permitted activities may include zip lines, mountain bike terrain parks and trails, Frisbee golf courses and ropes courses.Currently, the Forest Service averages 27 million visits annually to ski areas. This has contributed $4 billion every winter and created approximately 80,000 full-, part-time and seasonal jobs in hard-hit rural communities. Under the new legislation, the Forest Service anticipates roughly 600,000 more summertime visits that may create and sustain up to 600 more full-, part-time and seasonal jobs. The addition of summer recreation is expected to infuse almost $40 million of direct funding into local mountain communities.

Protecting natural resources will remain a priority and year-long facilities will be subject to the same review and approval processes as those for ski facilities such as the construction of ski lifts and ski trails.

Not all recreation activities will be permitted. Those considered to be destructive to the natural environment will be excluded, including tennis courts, water slides and water parks, swimming pools, golf courses and amusement parks.

“The national forests have always been some of America’s greatest playgrounds,” said U.S. Forest Service chief Tom Tidwell. “It is exciting that our ski areas will now be able to offer more recreational opportunities and economic benefits.”

Colorado Court of Appeals: Evidence that Ski Area Boundaries Were Not Properly Marked Presents Issue of Material Fact Inconsistent with Summary Judgment

The Colorado Court of Appeals issued its opinion in Anderson v. Vail Corp.; Ciocian v. Vail Corp. on September 16, 2010.

Summary Judgment—Ski Safety Act.

Jesse Anderson (skier #1) and Melissa Ciocian (skier #2) and Chris Ciocian appealed entries of summary judgment in favor of Vail Corporation (ski resort) in their respective cases. The two appeals were consolidated because they presented virtually identical facts and the same legal issues, and the parties were represented by the same counsel. The Court of Appeals determined there was an issue of material fact regarding signage, vacated the trial court’s order granting summary judgment, and remanded the case for further proceedings.

Primrose, an intermediate trail, commences at the top of Larkspur Bowl. Primrose splits and the left fork remains Primrose but becomes a beginner’s trail; the right fork becomes Bitterroot, an intermediate trail. Two ski lifts terminate just below the split, allowing access to Primrose, Bitterroot, and an unrated glade. Downhill from the split, the two trails are connected by Overshot, a catwalk, which traverses the glade commencing at Primrose and terminating at Bitterroot. Overshot is an intermediate trail because it terminates at an intermediate trail. The downhill edge of Overshot is a ski area boundary. Immediately below the boundary are three private residences, and below them is a paved road.

Skier #1’s accident occurred on February 25, 2007; skier #2’s accident occurred on March 3, 2007. Both skiers entered the glade and proceeded until they reached Overshot, crossed it, and continued downhill through the glade. Shortly after crossing Overshot, the skiers skied off a 19-foot retaining wall, dropped onto the paved road, and sustained injuries.

There is no dispute that there were nine ski area boundary signs facing uphill across Overshot on the left as the skiers crossed; however, an expert opined there was a lack of sufficient signage. The skiers skied through a gap approximately 56 yards downhill from the last sign and 16 yards uphill from a rope closure.

The trial court granted summary judgment in favor of the ski resort. On appeal, the skiers argued that the trial court improperly made findings of fact on disputed issues of material fact and the Court agreed.

The skiers argued that the ski resort acted negligently and violated the Ski Safety Act by failing to properly mark the ski area boundaries. They argued specifically that the ski resort violated CRS § 33-44-107(6), which provides: “The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility.” The trial court found the boundary markers met this standard.

The skiers presented evidence that the boundary signs were not readily visible to skiers in their line of travel. An expert testified the signs and ropes were not visible; ski patrol members responding to the incidents admitted they could see how this could be the case. This evidence, viewed in the light most favorable to skiers, presented a genuine issue of material fact as to whether the boundary signs were readily visible. Thus, summary judgment was inappropriate, the trial court’s orders were vacated, and the case was remanded.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 16, 2010, can be found here.