Are Avalanches an Inherent Risk of Skiing Inbounds?
As the ski season in North America winds down, the Colorado Supreme Court this week issued sweeping ruling that will have broad reaching impact on ski resort liability across that state in the seasons to come. As a skier and a personal injury lawyer, I respectfully disagree with the Court’s decision.
The Colorado State Supreme Court ruled this week that avalanches are an inherent risk if skiing inbounds. The Court delivered its long awaited opinion this week in a case arising out of the death of 28 year old Christopher Norris. Norris died in an inbounds avalanche at Winter Park Ski Resort on January 22, 2012.
Before diving into why the Court reached the decision it did, its important to understand that we are talking about avalanches within the defined, patrolled and maintained ski resort. We are not talking about backcountry or out-of-bounds avalanches. This case was about terrain under the control of the resort. This is terrain where resort assess avalanche danger with professional avalanche forecasters and carries out mitigation and also has the ability to open and close terrain as needed. This is terrain open to everyone who buys a lift ticket at the window.
Since 2000 there have been 11 known deaths due to inbound avalanches in the U.S.
The case turned upon the text of Colorado’s Ski Safety Act. Most states with a ski industry have some form of a similar statutory scheme designed to protect ski resorts from liability. Colorado’s statute was very explicit in listing the conditions for which they are protected from liability. Avalanches were not listed among those conditions. The plaintiffs argued strictly interpreting the statute, if the Colorado legislature wanted to include avalanches in the list of conditions included in the Ski Safety Act it would have. The industry argued that avalanches were a condition that was included under the broad language included in the act which describes “variable snow conditions.”
The dissent signed by two of the Justices to the Court’s decision argued that average skiers should not be required to assess the risk of an avalanche while skiing at a resort. “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 quality of the fresh snow, and the multitude of other factors that avalanche forecasters consider, and assume the risk of being swept away by an avalanche.” The dissent went on to point out that this ruling completely removes the ski resorts’ duty to reduce the threat of avalanche or warn skiers of avalanche danger within the ski area. The dissent added, “In fact, under today’s holding, a ski area operator will be immune from liability for injuries form avalanches regardless of the circumstances – arguably even for avalanches triggered by the operator’s own negligent or reckless actions.”
How this case will impact ski resort operation and avalanche mitigation work inbounds across the county is yet to be seen. Montana’s (where I went to Law School) Ski Safety Act excludes avalanches as an inherent risk of skiing on open designated ski trails. Mont. Code. Ann. 22-2-736. Most states, similar to Colorado, probably have Ski Safety Statutes which are silent on avalanches. Washington, where I live, ski and practice law, does not include avalanches in its Ski Safety Act. I expect we’ll see some amendments to some of the statutes in the following years. Hopefully the amendments will reflect a much more common sense approach such as Montana’s which still impose a duty upon the resorts to carry out mitigation work and only open terrain that’s safe for skiers and riders.
Avalanche snow safety education is important for all skiers. However, if you are skiing in Colorado next year, it would be a good idea to have some avalanche training under your belt if you venture onto steeper terrain. After this ruling, there’s no guarantee the resort will have done any mitigation work before opening the terrain to skiing and riding.
