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Fleury v. IntraWest Winter Park Operations Corp.

Supreme Court of Colorado, En Banc

May 31, 2016

Petitioner: Salynda E. Fleury, individually on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris,
v.
Respondent: IntraWest Winter Park Operations Corporation

          Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 13CA517.

          Judgment Affirmed.

          SYLLABUS

         The 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.

         Attorneys for Petitioner: Burg Simpson Eldredge Hersh & Jardine, PC, James G. Heckbert, Diane Vaksdal Smith, Nelson P. Boyle, Englewood, Colorado.

         Attorneys for Respondent: Rietz Law Firm, LLC, Peter W. Rietz, Kimberly A. Viergever, Brian A. Birenbach, Dillon, Colorado.

         Attorney 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.

         Attorneys 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, Denver, Colorado.

         Attorney for Amicus Curiae Colorado Trial Lawyers Association: Heideman Poor LLC, John F. Poor, Denver, Colorado.

         JUSTICE EID delivered the Opinion of the Court. JUSTICE MÁ RQUEZ dissents, and JUSTICE GABRIEL joins in the dissent.

          OPINION

         JUSTICE EID

          [¶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.

         I.

          [¶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 avalanche risk.

          [¶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 ¶ 16.

          [¶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 ...


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