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On January 22, 2012, Christopher Norris died in an inbounds avalanche at Winter Park Resort. He left behind his college sweetheart, Salynda Fleury, a toddler daughter, and a newborn son. Four months later, his widow filed a negligence and wrongful-death lawsuit against Intrawest Winter Park Operations Corp., the resort’s owner. Her case centered around the Colorado Ski Safety Act, a section of which outlines the “inherent dangers and risks of skiing,” for which ski resorts and operators are not liable. The word “avalanche” is noticeably absent.
The lawsuit made its way through the system, before finally reaching the state Supreme Court. Now, three years later, Fleury’s case is over: On Tuesday, May 31, the state’s highest court ruled that avalanches are, in fact, an inherent risk of skiing (two justices dissented). Justice Allison H. Eid explains the panel’s decision: “The definition of ‘inherent dangers and risks of skiing’…specifically includes ‘snow conditions as they exist or may change.’ By its plain meaning, this phrase encompasses an inbounds avalanche, which is, at its core, the movement, or changing condition, of snow. As such [it] precludes skiers from recovering for injuries resulting from inbounds avalanches.” Injury, in this case, includes death.
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“The law is not always black and white,” says James Heckbert, Fleury’s lawyer. “Many times it is gray. And this is one of those cases that resides in the gray area. Judges all along have disagreed as to whether or not an avalanche is an inherent risk of skiing. Here, we were only able to convince two.”
Winter Park released a statement, which reads, in part: “Winter Park Resort agrees with the Colorado Supreme Court’s decision in what has truly been a heartrending case for all involved. We’re proud of the performance and professionalism displayed by Winter Park Ski Patrol in this and every emergency they encounter. Most of all, however, our thoughts continue to be with Christopher’s family and friends who were directly impacted by this tragic accident.”
Melanie Mills, president of Colorado Ski Country USA, the trade group that represents many local ski areas, including Winter Park, said in a statement: “Colorado Ski Country agrees with the decision. Ski areas in Colorado engage in extensive and tireless work to reduce the danger of avalanches in Colorado’s rugged mountain environment, but the risk of avalanches occurring on terrain within the boundaries of a resort cannot be completely eliminated. Although avalanche accidents at ski resorts are extraordinarily rare, they are an inherent risk.”
But Heckbert isn’t done. On that same fateful day in 2012, 13-year-old Taft Conlin died in an inbounds avalanche at Vail Mountain in slightly different circumstances. Vail argues that Conlin had ventured into closed terrain; Heckbert and Conlin’s family say otherwise. The case was on hold pending the Supreme Court decision in the Winter Park case. Heckbert believes it will now move forward again, though no official dates have been announced.
So what does all this mean for skiers and snowboarders planning to hit the slopes this coming winter? As I wrote about in last year’s magazine story about these two accidents (“Fault Lines”), these cases raise the question of how much avalanche awareness resort skiers and snowboarders really need. As Justice Monica Márquez wrote in her dissent, “…the average skier lacks the training or resources to perceive and assess the risk of an avalanche on any given slope on any given day…The majority’s construction…allocates the risk of injury and death from an inbounds avalanche not to ski area operators—which have the information, expertise, and resources to perceive and mitigate avalanche danger and protect skiers—but instead to the skiing public, which does not.”
It also raises concerns about the quality of avalanche mitigation. Without question, resorts will continue to focus on safety—no one’s going to buy a lift ticket or ski pass otherwise—but as a result of the Supreme Court’s ruling, as Justice Márquez writes, “Winter Park effectively has no duty at all to warn skiers of avalanche risk or to close a dangerous run based on such risk.”
“Immunity breeds irresponsibility,” Heckbert adds.
Steve Hurlbert, Winter Park’s director of public relations and communications, disagrees. “Our ski patrol does a yeoman job staying on top of the ever-changing, variable conditions here, and avalanche mitigation is first and foremost one of their daily duties,” he says. “That’s not going to change.”
All this is to say: Be aware of your surroundings and continue to focus on safety wherever you’re skiing. That means staying on slopes within your ability, skiing with a friend, and paying attention to the weather.