When a Ski Area Operator Is Negligent
 

When skiing downhill, skiers typically assume risks inherent in the sport.

The question of precisely which risks are “inherent”-specially in the context of modern, highly groomed, controlled, and heavily marketed skiing, - is debatable in many cases. If it is in question, then it is an issue for the finder of fact, if it is not a question, then the case is either disposed of summarily; or, if the hazard or accident was clearly not caused by an inherent danger, then the assumption of risk/inherent danger issue is not submitted to the jury or finder of fact.

In recent decades, ski resorts have become more sophisticated, both in their business acumen, and their recreational offerings. They market themselves not only as destinations for the downhill skier, but as full-family adventure centers. Resorts now offer a range of snow-bound activities that often includes skiing, snowboarding, sledding, tobogganing, and snowshoeing. In light of the new guests, and the new sports, the old laws look antiquated. Greater family involvement, together with technological advances in sports safety, have made many of the traditional "inherent" dangers on the slopes no longer acceptable — to families or the courts. Recognizing the limitations of skiing-specific ski statutes, industry heads are returning to the legislatures seeking broad protection from members of the public injured on their property, regardless of the activity involved.

But see Rusnak v. Walker, 729 N.W.2d 542 (Mich. App. 2006) (Michigan Ski Safety Act provides that “collisions... with other skiers” are an inherent risk of skiing, while also placing on each skier the duty “not [to] act or ski in a manner that may contribute to his or her injury or to the injury of any other person,” essentially taking a “sometimes accidents just happen” approach).

If a skier skis into a manmade object, or natural object, skier skis off run into dangerous terrain, or finds himself in terrain above his ability. Inherent danger rules typically bar the claim, except when the skier can show that the ski area operator knew or created a hazard which was not open, obvious, or fairly to be expected while skiing; or if the ski area operator deviates from a statutory safety standard.

Prior to July 1, 1990, ski area operators in Colorado were obliged not only to operate their ski areas in compliance with the specific requirements of the Ski Safety Statute (regarding the marking of slopes, the padding and marking of man-made objects, and posting of specific warnings) but also to exercise a reasonable duty of care in the design, maintenance and operation of their slopes. The 1989-90 General Assembly passed amendments to the Ski Safety Act. These amendments provided that no skier could recover for injuries resulting from the inherent dangers of skiing; and, limiting damages recoverable from a ski area operator for cases except for lift accidents.

In 1995, the Colorado Supreme Court interpreted these amendments in Graven v. Vail Associates, Inc. 909 P. 2d 514 (Colo. 1995) the Colorado Supreme Court adopted a narrow construction of the inherent danger provisions of the Colorado Ski Act. C.R.S. §33-44-101 et seq. This precedent will allow some skiers, who are injured while skiing, to advance a claim for injuries against a ski area operator if the injury results not from a ski area operator's breach of a specific duty set out in the Ski Act, but, rather from a danger or risk which is found to be not "integral" to the sport. Followed: Dovey et al v. Victoria Breckenridge et al., 95 CV 1153, District Court, City and County of Denver, State of Colorado (Order denying Motion to Dismiss, 1/3/96).

Amendments to Colorado's Ski Safety Act in 2004, Colo. Rev. Stat. Ann. §§ 33-44-101 to -114, were arguably designed to legislatively over-rule several then existing precedents, by changing specific wording of the inherent danger definition, and doing away with the duty of ski area operators to mark "danger" areas. The amendments classified certain areas, using specifications as to steepness, as "extreme terrain," and within the "inherent risks." Colo. Rev. Stat. Ann. §§ 33-44-107(2)d, 33-44-103(3.1) to (3.5), as amended.

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