If you ask most skiers about inherent dangers of skiing within bounds at a ski resort, more common responses include trees, rocks or other skiers. But not an avalanche. And the Colorado Supreme Court may just agree as a matter of law that an in-bounds avalanche is not an inherent risk of the sport as contemplated by the Colorado Ski Safety Act.
Two cases are working their way through the state court system, and one has just been granted review by the state Supreme Court. It’s a little uncanny, but both avalanche deaths occurred on the same day in January 2012.
Eagle County teenager Taft Conlin died in a snowslide on the Prima Cornice trail at Vail, and Christopher Norris was buried in a slide in-bounds at Winter Park. This month, the Colorado Supreme Court said it will consider a very specific question in the death of Christopher Norris, whose widow sued IntraWest Winter Park Operations Corp., alleging that the ski area should have made more of an effort to protect skiers from the threat of avalanches within ski area boundaries.
Broomfield County District Court Judge Chris Melonakis in June 2014 ruled that Vail failed to prove the state’s Ski Safety Act protects it from liability in Conlin’s death and allowed the teen’s family to take the case to trial. But the case is on hold until the Supreme Court case is decided.
The Ski Safety statute provides a laundry list of dangers that are inherent to skiing, everything from unmarked obstacles and man-made terrain features to changes in weather. But there is no guidance as to whether the state legislature, when it updated the law in 2006, meant to include avalanches in their list.
But the Supreme Court’s decision to hear the case suggests that the dissenting opinion of a Colorado Appeals Court judge is persuasive. The dissent compared Colorado’s general ski safety act verbiage with a more specific clause in the Montana version of the law, which spells out risks, but specifically excludes avalanches on open designated runs from the list.
The high court’s decision to hear the case has implications for the often-replicated state law that limits resort liability for damages to $250,000 and requires skiers to assume some responsibility on the slopes.
The appeals court also rejected Fleury’s argument that the resort should have closed the trees adjacent to Trestle, noting that the Ski Safety Act only requires signs for man-made obstacles, boundaries and steepness.
Judge Jerry Jones, in his dissent, noted ambiguity in the Ski Safety Act and cited Montana’s ski law, which says avalanches are an inherent risk of skiing “except on open, designated ski trails.”
“In my view, avalanches are not ‘intrinsic’ to ‘the sport of skiing’ on open, designated ski trails within ski areas,” Jones wrote in his dissent.