Rohn K. Robbins
Vail Law

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March 4, 2014
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Vail Daily column: In-bounds avalanche verdict may cause stir

Forgive the pun, but the earth recently shifted in Colorado in snow riding liability law.

Christopher Norris, a 28-year-old father of two, died in an avalanche in the Trestle Trees area of the Winter Park ski area in January 2012. Unlike most other similar tragedies, Norris was in-bounds when the avalanche took him. His family sued the ski area. And lost. And appealed. And lost.

In a 2-1 decision rendered earlier this month, the Colorado Court of Appeals ruled that avalanches within the boundaries of open runs at Colorado ski resorts are an “inherent danger” of the sport and, accordingly, the ski area had no duty to protect its paying patrons from the hazard.

SKI AREAS NEED NOT WARN GUESTS

What’s worse is what the court also decided that ski area operators do not have to warn skiers or close runs, even when risk is high. What the court did in effect, is confer immunity upon ski areas for claims for avalanche-related deaths or injuries even when the rider is wholly within the maintained bounds of the ski area. “And, hey, we don’t have to warn you that things are a little or a whole lot sketchy.” The decision is “freshies” in the law, the first of its kind in the country, and — dare I say it? — is sure to cause an avalanche effect.

‘INHERENT RISK’

To fully grasp what’s new here, you first have to understand the legal concept of “inherent risk.” It goes like this: Something is inherently dangerous if the danger posed is a condition of the thing itself. The danger posed is elemental to the state of the dangerous thing.

For example, a product is inherently dangerous where the danger of any injury arises from the product itself and not from any defect in the product. Driving a car is inherently dangerous and the manufacturer will not be liable for an accident arising from that inherent danger but will only be legally responsible if some defect caused or increased the danger inherent to driving. Say, for no good reason, the tires suddenly fly off; that is not an inherent risk of driving. Say you round a corner at 80 in a 35 zone, then that’s a risk that you assume when you operate a motor vehicle.

What the court said earlier this month is that in-bounds avalanches are more like driving too fast than like the wheels flying off your Honda Accord for no good reason. As a skier or boarder, you assume certain risks inherent to the sport, and one of them is being carried downhill in a slide, even in-bounds and even when the ski area has failed to warn you that the risk of a potential avalanche is high. And if you’re hurt or someone’s killed, so sorry.

Colorado Ski Safety Act

This, of course, has caused tectonic stirrings of the Colorado Ski Safety Act which is, in many ways, the lifeblood, skeleton and sinew of snow riding in Colorado. What the act spells out is the responsibilities for riders and grants immunity to ski operators from “inherent dangers” of the sport. Although the act does not specifically refer to avalanches, it does include “changing snow and weather conditions.” Simply, the court ruled, in-bound avalanches are implied in the act.

On the morning of the day that Norris 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.”

Norris’ widow argued at trial that the ski area clearly knew (or should have known) of the danger and “knew or should have known” that the tree area was unsafe and should have roped off the area. Grand County District Court Judge Mary C. Hoak disagreed and ruled the resort wasn’t required to post warning signs or close the run. Avalanches, she concluded, are an inherent danger of skiing. Now the Court of Appeals has upheld her ruling.

One may fairly argue that this adds a whole new element of risk to riding that many — if not most — riders did not know that they were (or expected to be) assuming.

APPEAL LIKELY

What’s next? Likely an appeal to the Supreme Court, where Norris’ widow will get another swing of the bat.

Does the recent decision affect things? You bet. You should at the very least be aware, that for now at least, the ski area where you ride may not be obliged to look out for you quite as much as you thought or you expected.

Should the decision be upheld at the Supremes, you can be sure that the legislators will be stirring, the outcome of which may well be specific language in the act saying “yea” or “nay” that the act is or is not intended to encompass the earth moving under one’s feet.

Rohn K. Robbins is an attorney who practices in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be reached at 970-926-4461 or at Robbins@SLBLaw.com.

Does the recent decision affect things? You bet. You should at the very least be aware, that for now at least, the ski area where you ride may not be obliged to look out for you quite as much as you thought or you expected.


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The VailDaily Updated Mar 5, 2014 02:22PM Published Mar 4, 2014 04:27PM Copyright 2014 The VailDaily. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.