The Colorado Supreme Court has ruled that avalanches are an inherent risk of skiing, ending a contentious debate over a ski area’s liability when a skier is killed by avalanche inside a resort boundary.
The ruling delivered Tuesday morning found resorts are protected from avalanche-related lawsuits under the Ski Safety Act, which was created in 1979 and amended in 1990 and 2004. The act shields resort operators from liability when the death or injury of skiers and snowboarders can be attributed to difficult-to-mitigate threats, such as terrain and weather.
In its 5-2 decision, the court found that avalanches result from changing snow and weather conditions, and variations in steepness and terrain — all of which are specifically noted in the act. The decision affirmed an appeals court ruling.
Attorneys for the family of Christopher Norris, who died in an in-bounds avalanche at Winter Park ski area on Jan. 22, 2012, had argued that the resort was responsible for his death because avalanches are not specifically noted in the Ski Safety Act. Norris’ wife, Salyndra Fleury, argued the ski area knew that avalanche danger was high that day — a teenage skier died in a slide on Vail Mountain the same day — and should have closed terrain. She sought damages in excess of the $250,000 cap set by the act.
The ski industry argued that the act’s specific descriptions of variable snow conditions, terrain steepness and changing weather were all elements that create avalanche danger, so avalanches are covered by the law’s list of inherent dangers and risks.
“The phrase ‘snow conditions as they exist or may change’ encompasses avalanches that occur within the bounds of a ski resort,” reads the court’s decision, citing the snow conditions clause in the Ski Safety Act. “The statute also contemplates that the snow conditions ‘may change.’ One obvious way in which a snow condition ‘may change’ is through the movement of the snow, including by wind and gravity. And at its core, an avalanche is moving snow caused by gravity.”
Justice Monica Márquez, in her dissent, said the court’s majority opinion was “wholly unconvincing” and its interpretation of the Ski Safety Act ‘s snow conditions clause was “untenable.” Marquez said the Ski Safety Act’s specific descriptions of 10 snow conditions, six manmade objects a skier could impact on the hill and different terrain variations, was noteworthy because there is no mention of avalanches.
Márquez also cited the act’s 1990 amendment by Colorado legislators. Before then, the act’s list of inherent risks was introduced with the phrase “including, but not limited to.” The amendment dropped “but not limited to.” Simply using the word “including” limits the risks and dangers to only those specifically listed in the statute, she wrote, and avalanches are not listed.
Marquez also argued that an avalanche is an event. (The majority opinion focused on an avalanche as an amalgamation of the Ski Safety Act’s list of variable snow conditions, terrain and weather and did not discuss phrasing changes by the 1990 amendment.)
“On a spring day, ice can change to hard pack to slush and so on. But a change in the condition of snow hardly contemplates a change in the snow’s location, let alone an event like an avalanche,” Márquez wrote in her dissent, which, at 11 pages, is longer than the majority opinion.
Average skiers should not be required to assess the risk of an avalanche while skiing at a resort, she wrote.
“Under today’s holding, even a family of novice skiers traversing the mountain must be expected to look uphill, gauge the steepness of the slope, the quantity of fresh snow, and the multitude of other factors that avalanche forecasters consider, and assume the risk of being swept away by an avalanche,” Márquez wrote in the dissent, which was joined by Justice Richard Gabriel.
The family of 13-year-old Taft Conlin is suing Vail Resorts, arguing Vail should have done a better job of closing a run where avalanche danger was high. The ski area argues Conlin ignored closure signs. While the upper gate of Prima Cornice was closed, Conlin entered a lower gate with friends, and they sidestepped up the slope to ski a steep portion of the run that slid and carried him through trees. A judge temporarily suspended the Conlin lawsuit while the Supreme Court considered the Winter Park case.
Jim Heckbert, the lawyer who represented Fleury and is representing Conlin’s family, said the high court’s decision does not affect the Conlin case.
“Because we have an allegation in there as evidence that Vail intended to close the Prima Cornice Trail, which had two entrances, but closed only one entrance,” Heckbert said. “That means it is for the jury to decide if Vail violated its statutory duty to close all entrances to a trail it intended to close.”
Few people die in in-bounds avalanches in the U.S. Since 2000, only 11 of the 448 people killed in snowslides died inside a ski area, including Conlin and Norris, a father of two, on the same day. Before Jan. 22, 2012 — when the Colorado Avalanche Information Center noted increased threat of avalanches — the most recent in-bounds avalanche death involving a guest was at Arapahoe Basin in wet snow in May 2005. Before that, the last in-bounds avalanche death of a ticketed skier in Colorado was in the mid-1970s. Those 11 do not include not include ski patrollers killed while on duty.
The National Ski Areas Association said the few avalanche deaths at resort areas amount to one fatality per 100 million skier visits, or about one death every two seasons.
“Resorts do a phenomenal job with avalanche mitigation, given how few fatalities there have been,” said Dale Atkins, the vice president of the Avalanche Rescue Commission for the International Commission on Alpine Rescue, in a statement released by the association.
Even with resorts employing more training and avalanche safety procedures at resorts, the statement said, “individual, personal responsibility remains the most effective tool in avalanche precaution and preparedness.” The ski areas association urged skiers to ride with a partner, obey terrain closures and carry avalanche equipment in steep terrain.
Still, Márquez said the court’s ruling removes ski resorts’ duty to reduce the threat of avalanche or warn skiers of avalanche danger.
“But after today’s holding, Winter Park effectively has no duty to warn skiers of avalanche risk or to close a dangerous run based on such risk,” Márquez wrote. “The (Ski Safety Act) does not require ski area operators to mitigate avalanches or to issue avalanche warnings, and the majority’s ruling today abrogates any common law duty to do so. In fact, under today’s holding, a ski area operator will be immune from liability for injuries from avalanches regardless of the circumstances — arguably even for avalanches triggered by the operator’s own negligent or reckless actions.”
Vail Resorts spokeswoman Kelly Ladyga said the continent’s largest resort operator agreed with the court’s ruling.
“Regardless of this decision, however, our resorts have and will continue to go to great lengths to ensure the safety of our guests, including avalanche mitigation and appropriate terrain closures,” Ladyga said.
Melanie Mills, the president of the Colorado Ski Country trade group, said it was too early to talk about potentially amending the state’s Ski Safety Act to include the word “avalanches.” She said the court’s ruling recognizes how hard resorts work to reduce the risk of uncontrolled slides at a ski area and the court’s decision will not alter that work.
“In our industry we have long believed that avalanches are inherent risks of the sport, and we have continued throughout our history to do a great deal of work to mitigate that risk. But the risk can’t be eliminated,” Mills said. “That doesn’t mean we are not going to continue to make those efforts.”
