The Supreme Court of the State of Colorado2 East 14th Avenue • Denver, Colorado 80203

2016 CO 41

Supreme Court Case No. 14SC224Certiorari to the Colorado Court of AppealsCourt of Appeals Case No. 13CA517

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.

Judgment Affirmeden bancMay 31, 2016

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 Fédération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 MÁRQUEZ dissents, and JUSTICE GABRIEL joins in the dissent.

I.

II.

III.

I. Principles of Statutory Construction

II. The Ski Safety Act

1 We granted certiorari to review the following issue:Whether, for the purposes of the Ski Safety Act (“SSA”) of 1979, codified at sections C.R.S. 33-44-101 to -114 (2014), the term “inherent dangers and risks of skiing,” as defined in C.R.S. 33-44-103(3.5) (2014), encompasses avalanches that occur within the bounds of a ski resort, in areas open to skiers at the time in question.

2 Because we find that the enumerated term “snow conditions as they exist or may change” encompasses in-bounds avalanches, we do not reach the question of whether the term “including” as used in section 33-44-103(3.5) is exclusive or non-exclusive.

3 We have construed the term “injury” to include death. Stamp v. Vail Corp., 172 P.3d 437, 447 (Colo. 2007).

4 Because we conclude that the phrase “snow conditions as they exist or may change” encompasses in-bounds avalanches, we need not consider Fleury’s additional argument, based on the dissent, that “a statute’s grant of immunity must be strictly construed.” Fleury, ¶ 38 (J. Jones, J., dissenting); see Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654, 661 (Colo. 2000) (“A statute may modify or restrict a common law right only to the extent embraced by the statute.”).

1 Section 33-44-103(3.5) reads, in its entirety:“Inherent dangers and risks of skiing” means 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; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104(2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.(Emphases added.)

2 The SSA does require ski area operators to print lift tickets containing a warning to skiers of the “inherent dangers and risks of skiing,” using language drawn from section 33-44-103(3.5). § 33-44-107(8)(c), C.R.S. (2015). Interestingly, this required lift ticket warning notifies skiers that they assume the risk of injury from a host of hazards, specifically: “[c]hanging weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.” Id. Like subsection (3.5), nowhere in this required warning does the term “avalanche” appear. And for the reasons stated above, I gravely doubt a skier would infer from this list that “avalanches” naturally fall under the category of "changing snow conditions."

3 In 1996, a ski patroller threw an avalanche charge from a chairlift at Loveland Ski Area in Colorado and triggered a “massive” avalanche that uprooted trees and destroyed the patroller’s own 1986 Honda Civic, parked in a lot at the base of the mountain. See John Meyer, Loveland’s Over the Rainbow was cleared by a human-set avalanche, The Denver Post, Oct. 15, 2012, http://perma.cc/C9T4-6A28.

4 I note that other states’ versions of the SSA expressly allocate avalanche liability between ski area operators and skiers. A previous version of Montana’s statute defined “inherent dangers and risks of skiing” as including “avalanches, except on open, designated ski trails.” Mont. Code Ann. § 23-2-702(2)(c) (2013). This section was amended in 2015 to provide that avalanches do not qualify as inherent dangers “on open, machine-groomed ski trails.” See 2015 Mont. Laws 299 (emphasis added). Alaska requires ski area operators to prepare and implement a plan of operation each ski season that includes provisions for avalanche control and rescue, Alaska Stat. § 05.45.040 (2015), and a ski area operator that violates this provision is negligent and may be held civilly liable, id. at § 05.45.020.