Salynda E. Fleury, individually, on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris, Plaintiff-Appellant,
IntraWest Winter Park Operations Corporation, Defendant-Appellee.
Grand County District Court No. 12CV132 Honorable Mary C. Hoak, Judge.
Burg Simpson Eldridge Hersh & Jardine, P.C., Diane Vaksdal Smith, Nelson P. Boyle, James G. Heckbert, Englewood, Colorado, for Plaintiff-Appellant
Reitz Law Firm, LLC, Peter W. Reitz, Kimberly A. Viergever, Brian A. Birenbach, Dillon, Colorado, for Defendant-Appellee
¶ 1 This case arises from the death of Christopher H. Norris, who was killed by an avalanche while skiing at Winter Park Resort. Mr. Norris's wife, Salynda E. Fleury, individually and on behalf of her minor children Indyka and Sage Norris, sued defendant, IntraWest Winter Park Operations Corporation (IntraWest), the operator of Winter Park Resort. The district court granted IntraWest's motion for determination of law and judgment on the pleadings, ruling that an avalanche is an inherent danger or risk of skiing under the Ski Safety Act, § 33-44-101 to -114, C.R.S. 2013 (the Act), and therefore IntraWest cannot be liable for Mr. Norris's death. We agree and affirm.
I. Background and Procedural History
¶ 2 On January 22, 2012, Mr. Norris was fatally injured in an avalanche while skiing inbounds at Winter Park Resort on a run known as Trestle Trees/Topher's Trees (Trestle Trees). Ms. Fleury asserted claims for negligence and wrongful death. Ms. Fleury claimed that IntraWest knew or should have known that an avalanche was likely to occur on Trestle Trees on January 22, 2012, and that IntraWest's failure to warn skiers about the likelihood of avalanches or failure to close Trestle Trees caused Mr. Norris's death. Ms. Fleury sought an unspecified amount of economic and noneconomic damages, and punitive damages for IntraWest's alleged willful and wanton conduct.
¶ 3 IntraWest moved for a determination of law under C.R.C.P. 56(h), and a judgment on the pleadings under C.R.C.P. 12(c), asserting immunity from liability because an avalanche is an inherent danger or risk of skiing under the Act. See §§ 33-44-103(3.5) (defining inherent dangers and risks of skiing) and 33-44-112 (granting immunity when an injury results from an inherent danger or risk of skiing). IntraWest also asserted that the Act caps the maximum amount of compensatory damages for derivative claims at $250, 000, present value. See § 33-44-113.
¶ 4 The court held that the avalanche that killed Mr. Norris was an inherent risk of skiing, and thus IntraWest was not liable for his death. The court dismissed Ms. Fleury's claims with prejudice, but opined that were Ms. Fleury allowed to proceed with her claims, compensatory damages would be capped at $250, 000, individually and on behalf of her minor children.
II. Liability Under the Act
¶ 5 Ms. Fleury contends that the district court erred in determining that the avalanche was an inherent risk of skiing under § 33-44-103(3.5). We disagree and therefore affirm.
A. Standard of Review
¶ 6 We review a district court's order granting a judgment on the pleadings under C.R.C.P. 12(c) de novo. In re Estate of Johnson, 2012 COA 209, ¶ 18. We likewise review a district court's determination of a question of law under C.R.C.P. 56(h) de novo. Henisse v. First Transit, Inc., 247 P.3d 577, 579 (Colo. 2011). An order deciding a question of law is proper "[i]f there is no genuine issue of any material fact necessary for the determination of the question of law." C.R.C.P. 56(h). The nonmoving party is entitled to all favorable inferences. Henisse, 247 P.3d at 579.
¶ 7 Statutory interpretation, the matter we must address here, presents a question of law and is also subject to de novo review. Stamp v. Vail Corp., 172 P.3d 437, 442 (Colo. 2007). When the language of the statute is clear and unambiguous, we give effect to its plain and ordinary meaning. Id. Likewise, when the General Assembly defines a term, we must apply that definition. People v. Swain, 959 P.2d 426, 429 (Colo. 1998); In re M.D.E., 2013 COA 13, ¶ 10. However, when the language is ambiguous — that is, reasonably susceptible of multiple meanings — we may consider extrinsic indications of the General Assembly's intent. Stamp, 172 P.3d at 442; In re M.D.E., ¶ 10.
B. Applicable Law
¶ 8 In adopting the Act, the General Assembly recognized that there are dangers inherent to the sport of skiing, regardless of the safety measures that may be employed by ski area operators. § 33-44-102. The Act's stated purposes are to "define the legal responsibilities of ski area operators and their agents and employees; to define the responsibilities 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." Id. Consistent with these purposes, the Act grants ski area operators immunity from claims for injuries resulting from any of the inherent dangers and risks of skiing. § 33-44-112. Accordingly, a skier may not recover if his injury — or death, see Stamp, 172 P.3d at 447 — is the result of an inherent danger or risk of skiing.
C. Avalanches as Inherent Dangers or Risks of Skiing
¶ 9 Ms. Fleury contends that because an "avalanche" is not specifically listed as an inherent danger or risk of skiing in § 33-44-103(3.5), the General Assembly did not intend that it should be so regarded for purposes of the Act. Relying on Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (holding that a court cannot add words to a statute), and Lunsford v. Western States Life Insurance, 908 P.2d 79, 84 (Colo. 1995) (where the legislature has spoken with exactitude, a court must construe the statute to mean that inclusion or specification of a particular set of conditions necessarily excludes others), she argues that the definition of "inherent dangers and risks of skiing" is a finite list. According to Ms. Fleury, construing the definition to include avalanches would expand the scope of a ski area operator's immunity under the Act in contravention of the intent of the General Assembly. We disagree, for two reasons.
1. Plain Meaning of the Act
¶ 10 First, giving effect to the plain meanings of the words in the Act, we conclude that an avalanche fits the definition of inherent dangers and risks of skiing. As relevant here, the inherent dangers and risks of skiing include:
those 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; [and] variations in ...