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Tuesday, February 18, 2014

Colorado Court: Avalanches Part Of The Risk Of Skiing

This photo shows the area of an avalanche that killed two skiers on Saturday, Feb. 15, 2014. (Colorado Avalanche Information Center via AP)

This photo shows the area of an avalanche that killed two skiers on Saturday, Feb. 15, 2014. (Colorado Avalanche Information Center via AP)

Nine people have died in the past 10 days in the U.S. as a result of avalanches. While most of these were in the back country, a recent decision by the Colorado Court of Appeals has a big impact on who is liable when a skier at a resort dies in an avalanche.

On Feb. 13, the court handed down a decision in Fleury v. IntraWest Winter Park Operations Corp.

In 2012, 28-year-old Christopher Norris, a skier was killed in an avalanche while skiing in-bounds at Winter Park Resort. His wife, Salynda Fleury, sued the operator of the resort. The suit was dismissed on the grounds that the ski area operator had immunity under the Ski Safety Act.

The majority of the court stated that under the Ski Safety Act in Colorado, in-bounds avalanches are an inherent risk of skiing. But they also stated, “If the General Assembly wishes to hold ski areas accountable for avalanche-related injuries or deaths, it should amend the Act.”

Jim Chalat, a Denver lawyer with extensive experience in ski law, joins Here & Now’s Meghna Chakrabarti to explain.

Guest

  • Jim Chalat, senior at Chalat Hatten Law Offices in Denver, Colorado.

Transcript

MEGHNA CHAKRABARTI, HOST:

It's HERE AND NOW. This month alone, nine people have died in avalanches on American mountains. But who's responsible in such tragedies? Well, a recent decision by the Colorado Court of Appeals says ski resorts cannot be held liable when a skier is killed or injured in an avalanche, even if the accident happens on runs within the resort's boundaries.

The case springs from the 2012 death of 28-year-old Christopher Norris at Colorado's Winter Park resort. So let's get some reaction from Jim Chalat. He's a veteran trial lawyer with deep experience in ski law in Denver, and he joins us from the studios of HERE AND NOW Contributor Network station Colorado Public Radio.

And Jim, you were disappointed by this ruling why?

JIM CHALAT: Well, I think that it just follows in lockstep the doctrine of immunity for ski area operators under the Colorado Ski Safety Act without any acknowledgement of what the reality is on the slopes. People ski in-bounds not expecting to be killed by an avalanche.

CHAKRABARTI: Now let me ask you a little bit more about that because it seems as if the key differentiating point in this case was that Christopher Norris, the man who died, as you said was skiing in-bounds, he was skiing on trails owned by the resort. So I mean, how much liability do you think ski resorts and ski companies should have for what happens on their own trails?

CHALAT: I think that the contours of the liability of the ski area operator should be decided by a jury, not simply by a court ruling that they had no duty whatsoever to the victim.

CHAKRABARTI: OK, but what about the actual law that's in question here in this case, the Colorado Ski Safety Act, which if I understand correctly, it spells out the responsibilities that skiers and snowboarders have, and it does actually grant immunity to ski operators from, quote, "the inherent dangers of the sport." And the appeals court found that the inherent dangers and risks of skiing, quote, "include an avalanche."

CHALAT: Well, really a very close reading of the statute says that those inherent risks are the risks which are, quote, "intrinsic," close-quote, in the sport. And I think that a thoughtful argument could be made, and is made, by the dissent that an in-area avalanche is not intrinsic to the modern-day skiing experience, which involves highly controlled, organized and developed ski areas, which really are more like what you and I would think of as an amusement park than you would consider to be an out-of-doors, at-risk, safety-conscious activity.

CHAKRABARTI: I wonder. There's another aspect of this ruling, which I thought was quite interesting, that the court ruled that the resort wasn't required to post warning signs or to close the run if there were a danger of an avalanche. And that makes me wonder about, you know, the conflicting information that skiers do get.

I mean, for example I'm seeing on the day of Norris' death, on January 22, 2012, the Colorado Avalanche Information Center cited high winds and heavy snow and issued an avalanche forecast warning of widespread, dangerous avalanche conditions, but at the same time said enjoy the powder in the safety of the ski area.

So I mean, from the point of view of skiers, where should they be getting their information, and who should they trust?

CHALAT: It's a good point, Meghna. The approach that we've always advocated is that liability breeds responsibility. And immunity breeds impunity.

CHAKRABARTI: And finally, I'm wondering what impact do you think this ruling might have on skiers and ski resorts in other states.

CHALAT: The effect in other states is questionable. I think that in this particular instance, Colorado is out of step with skier safety laws in neighboring Western states.

CHAKRABARTI: Well, Jim Chalat is a veteran trial lawyer with deep experience in ski law in Denver, Colorado. He's also senior attorney at Chalat Hatten Law Offices. Jim, thank you very much.

CHALAT: Thank you, Meghna. Thank you for having me. Transcript provided by NPR, Copyright NPR.


Please follow our community rules when engaging in comment discussion on this site.
  • SoCalFlyer

    OMG, a sudden outbreak of reason in the legal system. We must mobilize immediately to quash this!

  • MarkVII88

    Hearing this story reminded me of a ski resort issue that was bounced around last winter here in Vermont where I live. There were an inordinate number of skiers last year who became lost on various mountains when skiing out of bounds or back-country. The issue was whether or not to charge these people for the cost of the rescue mission to retrieve them since they, usually, knowingly left the trails. In the end, no movement on this question was made last year probably due to the risk of dissuading tourists from frequenting Vermont ski resorts.

  • Hopkins Lacrosse

    Was anyone else surprised that the on-air conversation lacked a balanced discussion from someone else beside a representative of the tort bar with “deep” experience in ski area litigation? One might arrive at the conclusion that the court’s decision would seriously deprive this representative from getting deep into the pockets of the ski industry. Water in all its forms can present us with unintended consequences. Avalanches are found in snowy mountains just as sharks are found in oceans (and courtrooms). Best to be aware and not assume that it is just an “amusement park.”

  • Richard Hussong

    In general, both the decision and the Colorado law seem reasonable to me. That said, if it is feasible for a ski area to evaluate the risk of avalanche (and I don’t know if it is, given the current state of snow science), then it might be reasonable to require them to post warnings about avalanche risk based on the actual current risk, like the fire hazard warnings common in forested recreational areas.

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