According to the Colorado Avalanche Information Center
(CAIC), since the 1950s avalanches have killed more people in Colorado than any
other natural hazard, and in the United States, Colorado accounts for one-third
of all avalanche deaths.1
Given the well known risk of these localized natural disasters, it
should come as no surprise that Colorado’s Court of Appeals has ruled that ski
area operators are not responsible for injuries or deaths caused by an
avalanche, and are not responsible to warn skiers of the risk that an avalanche
may occur on the area’s ski runs. Fleury v. IntraWest Winter Park Operations
Corp., 2014 COA 13 (February 13, 2014).2
In Fleury, the
Court was faced with the issue of who is responsible when a skier is injured or
killed by an avalanche occurring within the boundaries of a ski area. Ms. Fleury brought a wrongful death suit
against the operator of Winter Park Resort after her husband was killed by an
avalanche while skiing inbounds on one of the resort’s ski runs. Ms. Fleury asserted that the ski area
operator was liable for failing to warn that an avalanche was likely to occur
on that run, and for failing to close the ski run on which the avalanche occurred. The trial court granted judgment as a matter
of law in favor of the ski area operator finding that the avalanche was an
inherent risk of skiing, and that the ski area operator was therefore immune
from liability under the Ski Safety Act.
The Colorado Legislature enacted the Ski Safety Act,
Colorado Revised Statutes §33-44-101, et seq., in 1979. In adopting the Act, the Legislature
recognized that there are dangers inherent the sport of skiing, regardless of
the safety measures that may be employed by ski area operators. C.R.S. §33-44-102. The Act was a legislative attempt to define
the legal responsibilities of ski area operators, and of skiers using such ski
areas; and to define the rights and liabilities existing between the skier and
the ski area operator and between skiers.
C.R.S. §33-44-102. In 1990, the
Legislature amended the Ski Safety Act to grant immunity to ski area operators
for injuries resulting from any of the inherent dangers and risks of skiing,
and broadened the definition of inherent dangers and risks in 2004. C.R.S. §33-44-112. The
Act currently defines inherent dangers and risks of skiing as:
[T]hose dangers or conditions
that are part of the sport of skiing, including changing weather conditions;
snow conditions as they exist or may change, such as ice, hard pack, powder,
packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made
snow; surface or subsurface conditions such as bare spots, forest growth,
rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural
objects, and collisions with such natural objects; impact with lift towers,
signs, posts, fences or enclosures, hydrants, water pipes, or other man-made
structures and their components; variations in steepness or terrain, whether natural
or as a result of slope design, snowmaking or grooming operations, including
but not limited to roads, freestyle terrain, jumps, and catwalks or other
terrain modifications; collisions with other skiers; and the failure of skiers
to ski within their own abilities.
C.R.S.
§33-44-103(3.5). Ms. Fleury asserted
that an avalanche was not an inherent danger or risk of skiing under the Act
since it was not specifically listed as such in the statute. The Court of
Appeals rejected this assertion, concluding that an avalanche fits within the
definition of inherent dangers and risks of skiing, because the statutory
definition is illustrative rather than exclusive, and includes dangers
resulting from certain conditions of snow, variations in steepness or terrain and
changing weather conditions. Avalanches,
the Court noted, result from the effects of changing weather conditions on snow
conditions in steep terrain, and are commonly understood as a danger. Accordingly, they fall within the definition
of inherent dangers and risks of skiing.
The Court further noted that defining an avalanche as an inherent danger
is fully consistent with the legislative recognition that skiing is fraught
with dangers, regardless of all safety measures that may be employed by a ski
area. ¶16.
The Court also
rejected the claim that ski area operators should be held liable for failing to
post a sign warning of avalanche danger. The Court noted that the Ski Safety
Act only requires ski area operators to post signs relating to man-made obstacles,
ski area boundaries, and the steepness of the terrain. ¶21-24. The Act specifically does not require ski
area operators to post a sign notifying skiers of "danger areas." ¶22.
The bottom line:
Skiers are responsible for their own safety whether in the back country or at a
ski resort. Always know the snow
conditions before heading out to the slopes.
You can check local conditions on the CAIC website: avalanche.state.co.us/
1 Colorado Avalanche Information Center –
avalanche.state.co.us/about-us/
2 Opinion by Judge Fox; Navarro, J., concurs; J.
Jones, J., dissents.
You can read the Court’s opinion here: http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2014/13CA0517-PD.pdf
Lee Katherine
Goldstein is an appellate lawyer with the Denver law firm of Fairfield and
Woods, PC.
