Chapter 10 - § 10.10 WRONGFUL DEATH CLAIMS UNDER THE SKI SAFETY ACT

• Jurisdiction: Colorado

§ 10.10 WRONGFUL DEATH CLAIMS UNDER THE SKI SAFETY ACT

In Fleury v. IntraWest Winter Park Operations Corp., 2014 COA 13, the court affirmed the trial court's determination of law and judgment on the pleadings that the defendant, which operates the Winter Park Resort, was not liable for the avalanche death of Christopher Norris (the decedent), because an avalanche is an inherent danger or risk of skiing under the Ski Safety Act, C.R.S. §§ 33-44-101 to -114.

The avalanche occurred on January 22, 2012, when the decedent was skiing inbounds at Winter Park on the Trestle Trees/Topher's Trees run. The plaintiff, the decedent's wife and next friend of his minor children, asserted that the defendant knew or should have known that an avalanche was likely to occur on the Trestle Trees run and that the defendant's negligence in failing to close the run or warn of avalanches was the cause of the decedent's death.

The defendant argued that an avalanche is an inherent danger of risk of skiing under C.R.S. § 33-44-103(3.5) and that C.R.S. § 33-44-112 grants ski area operators immunity from liability for injuries resulting from the inherent dangers or risks of skiing. The court of appeals rejected the plaintiff's assertion that the trial court erred in finding that an avalanche is an inherent risk of skiing.

The plaintiff argued that since § 33-44-103(3.5) does not specifically define an avalanche as an inherent danger or risk of skiing, the General Assembly did not intend that avalanches should be so regarded. The plaintiff asserted that the statutory definition of the inherent dangers and risks of skiing is a finite list, and that adding avalanches to the list would expand the scope of a ski area operator's immunity. The court of appeals rejected this argument for two reasons.

First, the court concluded that an avalanche fits within the definition of the inherent dangers and risks of skiing. The statutory definition states that such dangers and risks include "'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; variations in steepness or terrain,'" etc. Id. at ¶ 10. The court found that because the word "include" is used as a word of "extension or enlargement, listing examples in a statutory definition does not restrict the term's meaning." Id. at ¶ 11. As support for this conclusion, the court cited Kumar v. Copper Mountain, Inc., 431...