Avalanches a skiing risk, Colorado court rules
February 13, 2014
DENVER – Avalanches are one of the risks skiers face when skiing in a Colorado ski resort, ruled the Colorado Court of Appeals.
An inbounds avalanche killed Christopher Norris in Winter Park, two days after an inbounds avalanche killed Taft Conlin in Vail.
In a 2-1 decision, the Colorado Court of Appeals ruled that the state's Skier Safety Act grants ski area operators immunity from the "inherent dangers of the sport."
"We conclude that an avalanche fits the definition of inherent dangers and risks of skiing," said the majority ruling, published Thursday morning.
“The inherent risk factor does not apply when the ski area operator does not meet one of its duties.”
Jim Heckbert, the attorney in wrongful death lawsuits against both Winter Park's Intrawest and Vail Resorts, disagrees with the ruling and says they will appeal the ruling to the Colorado Supreme Court.
Won't change case against Vail resorts
Heckbert says Thursday's ruling won't substantially change the way they approach his case against Vail Resorts. Heckbert, with the Denver law firm Burg Simpson, also represents Taft Conlin's parents in their wrongful death lawsuit against Vail Resorts. Conlin was 13 when an avalanche killed him.
Conlin died Jan. 20, 2012, in an avalanche on Prima Cornice on the front side of Vail Mountain. His parents' wrongful death lawsuit against Vail Resorts claims that if the ski company wanted to close any part of the run where Conlin was killed, all the entrances should have been closed.
While Prima Cornice's upper gate was closed, the lower gate was open. Several skiers accessed Prima Cornice through that lower gate that day.
Vail Resorts has argued that the run was, in fact, closed.
"The inherent risk factor does not apply when the ski area operator does not meet one of its duties," Heckbert said.
Not following the closure requirements violates Colorado's Skier Safety Act, Heckbert said.
"We're saying that by leaving the lower gate open, they failed to fulfill their duties," Heckbert said.
In Winter Park case
In the Winter Park case, Norris was killed in an avalanche while skiing inbounds on the Trestle Trees run.
Norris' wife, Salynda E. Fleury, sued Winter Park operator Intrawest, claiming that the company should have known an avalanche was likely to occur on Jan. 22, 2012, the day her husband died.
She says Intrawest's failure to warn skiers about the likelihood of avalanches or failure to close Trestle Trees caused Norris' death.
"While Mr. Norris' death was tragic, Intrawest is not liable under the act. If the General Assembly wishes to hold ski areas accountable for avalanche-related injuries or deaths, it should amend the act," Judge Terry Fox wrote in the majority opinion with Judge Anthony Navarro.
Judge Jerry Jones disagreed. In his dissent, he wrote that Colorado's Skier Safety Act contains a long list of issues from which ski area operators are granted immunity. However, avalanches are not on that list, Jones wrote.
"It is not as if avalanches are unheard of occurrences in mountainous areas, or even on or near ski areas. And yet the General Assembly — despite formulating a lengthy definition identifying numerous specific conditions and events — did not expressly (or otherwise clearly) include avalanches," Jones wrote. "Given the exactitude with which the General Assembly has spoken, I do not believe it is appropriate for us to essentially add another event to the definition."
The Conlin lawsuit is scheduled to begin in early June in Broomfield County District Court. The expected appeal of Thursday's Court of Appeals ruling could postpone that, depending on what the trial judge decides, Heckbert said.
Staff Writer Randy Wyrick can be reached at 970-748-2935 and firstname.lastname@example.org.