Petitioner: Salynda E. Fleury, individually on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris,
Respondent: IntraWest Winter Park Operations Corporation
Certiorari to the Colorado Court of Appeals. Court of Appeals
Case No. 13CA517.
Colorado Supreme Court holds that an avalanche that occurs
within the bounds of a ski resort qualifies as an "
inherent danger and risk of skiing" under the Ski
Safety Act of 1979, § § 33-44-101 to -114, C.R.S.
(2015). The definition of " inherent dangers and risks
of skiing" in section 33-44-103(3.5), C.R.S. (2015),
specifically includes " snow conditions as they exist or
may change." By its plain meaning, this phrase
encompasses an in-bounds avalanche, which is, at its core,
the movement, or changing condition, of snow. As such,
section 33-44-112, C.R.S. (2015), precludes skiers from
recovering for injuries resulting from in-bounds avalanches.
for Petitioner: Burg Simpson Eldredge Hersh & Jardine, PC,
James G. Heckbert, Diane Vaksdal Smith, Nelson P. Boyle,
for Respondent: Rietz Law Firm, LLC, Peter W. Rietz, Kimberly
A. Viergever, Brian A. Birenbach, Dillon, Colorado.
for Amici Curiae Association of Professional Patrollers and
Fé dé ration Internationale des Patrouilles de
Ski: Gassman Law Firm LLC and Community Legal Center, Edward
C. Gassman, Loveland, Colorado.
for Amicus Curiae Colorado Ski Country USA, Inc.: Davis
Graham and Stubbs LLP, Jordan Lipp, John M. Bowlin, Denver,
Colorado; Colorado Ski Country USA, Inc., Melanie Mills,
for Amicus Curiae Colorado Trial Lawyers Association:
Heideman Poor LLC, John F. Poor, Denver, Colorado.
EID delivered the Opinion of the Court. JUSTICE MÁ
RQUEZ dissents, and JUSTICE GABRIEL joins in the dissent.
[¶1] In this case, we determine whether an
avalanche that occurs within the bounds of a ski resort
qualifies as an " inherent danger and risk of
skiing" under the Ski Safety Act of 1979, § §
33-44-101 to -114, C.R.S. (2015) (the " SSA" or
" Act" ). If so, the statute would preclude skiers
from bringing claims against ski area operators for injuries
resulting from these kinds of avalanches. See §
33-44-112, C.R.S. (2015).
[¶2] Here, petitioner Salynda E. Fleury
brought a negligence and wrongful death suit against
respondent IntraWest Winter Park Operations Corporation
(" Winter Park" ) after her husband was killed in
an in-bounds avalanche at its resort. Fleury claims that,
although Winter Park knew that avalanches were likely to
occur in the area where her husband was skiing that day, it
neither warned skiers about this risk nor closed the area.
Winter Park filed a motion for a determination of law under
C.R.C.P. 56(h) and for judgment on the pleadings under
C.R.C.P. 12(c), arguing that in-bounds avalanches are an
inherent risk of skiing as defined in the SSA and that the
SSA therefore precluded the lawsuit. The trial court agreed
and dismissed the action pursuant to section 33-44-112.
[¶3] The court of appeals affirmed the
dismissal in a split decision. The majority concluded that
avalanches fall within the statutory meaning of the phrase
" inherent dangers and risks of skiing" because
they result from " snow conditions as they exist or may
change," " changing weather conditions," and
" variations of steepness or terrain," all of which
are specifically enumerated as " inherent dangers and
risks" under the statutory definition. Fleury v.
IntraWest Winter Park Operations Corp., 2014 COA 13,
¶ ¶ 15-16, . Judge J. Jones dissented, arguing that
the statute neither expressly nor by clear implication
included in-bounds avalanches as an inherent risk of skiing.
Id. at ¶ 29 (J. Jones, J., dissenting).
[¶4] We granted certiorari and now affirm.
The definition of " inherent dangers and risks of
skiing" in section 33-44-103(3.5), C.R.S. (2015),
specifically includes " snow conditions as they exist or
may change." This phrase encompasses an in-bounds
avalanche, which is, at its core, the movement, or changing
condition, of snow. We therefore affirm the decision of the
court of appeals.
[¶5] We accept as true the following
allegations from the complaint. See Melat, Pressman &
Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61,
¶ 7, 287 P.3d 842, 845 (citing Abts v. Bd. of
Educ., 622 P.2d 518, 521 (Colo. 1980)).
[¶6] On January 22, 2012, Christopher H.
Norris was killed in an avalanche while skiing on the "
Trestle Trees" run within the bounds of Winter Park
Resort. In the days leading up to his death, the Colorado
Avalanche Information Center had predicted heavy snow storms
and issued an avalanche warning to last through January 23.
It warned skiers to " [b]e careful near or below any
slope over 30 degrees" and cautioned that " the
weak snowpack will not be able to handle even [a] modest new
load" of snow from the coming storms. Prior to the
arrival of these storms, the existing snow base on the
Trestle Trees run had grown weak and unstable, which made it
prone to avalanches. Winter Park knew about the avalanche
warnings, the unstable snow on the Trestle Trees run, and the
areas within the resort that were most susceptible to
avalanches on January 22, including Trestle Trees, but it
neither closed the run nor posted signs to warn skiers of the
[¶7] After her husband's death, Fleury
brought negligence and wrongful death claims against Winter
Park. Winter Park filed a motion for a determination of law
under C.R.C.P. 56(h) and for judgment on the pleadings under
C.R.C.P. 12(c), arguing that the SSA barred the lawsuit
because avalanches constitute an inherent risk of skiing
under the statutory definition.
[¶8] The trial court granted the motion. It
found that the allegations in the complaint indicated that
the fatal avalanche resulted from a combination of "
changing weather conditions," " snow
conditions," and " variations in steepness or
terrain" as enumerated in section 33-44-103(3.5). The
court rejected Fleury's argument that the statute needed
to expressly enumerate the term " avalanches" for
avalanches to be covered as an inherent risk because section
33-44-103(3.5) uses the non-exclusive term "
including" before listing examples of inherent risks. As
such, it dismissed the complaint with prejudice.
[¶9] In a split decision, the court of
appeals affirmed the dismissal. Fleury, ¶ 28. The
majority agreed with the trial court that the word "
including" was " illustrative and not, as Ms.
Fleury argues, confined to the identified dangers" in
the statute because it is " a word of extension or
enlargement." Id. at ¶ 11. It went on to
conclude that avalanches result " from certain
conditions of snow, and the degree of danger is affected by
'changing weather conditions' across 'variations
of steepness or terrain.'" Id. at ¶
15. Consequently, the court held that the term "
inherent dangers and risks of skiing" under section
33-44-103(3.5) encompasses avalanches. Id. at ¶
[¶10] In dissent, Judge Jones objected that
the majority " cobbl[ed] together three categories of
covered dangers and risks" to conclude that avalanches
are covered under the definition even though they are not
expressly included in it. Id. at ¶ 38 (J.
Jones, J., dissenting). He argued that this approach violated
the rule that statutory grants of immunity must be strictly
construed, and characterized an avalanche as an "
event--one that not even necessarily involves snow," as
distinguished from " changing weather conditions,"
" snow conditions," or " variations in
steepness or terrain." Id. at ¶ ¶ 38,
42, 43-45. Finally, Judge Jones asserted that avalanches do
not always result from the mere combination of these three
factors, because other factors, including human action, can
also cause them independently. Id. at ¶ 46.
Thus, even if the majority was correct to aggregate the
different categories ...