COLORADO SUPREME COURT

2 East 14th Avenue

Denver, CO 80203
Certiorari to the Colorado Court of Appeals
Published Opinion:
2014 COA 13 (Feb. 13, 2014), by
Hon. Fox, J., Navarro, J., concurs, and Jones, J.,
dissents.
Case No.: 13CA0517
Grand County District Court Case No. 12CV132
Hon. Mary C. Hoak, Judge
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
Corp.
Attorneys for Petitioner:
James G. Heckbert, Atty. No. 37230
Diane Vaksdal Smith, Atty. No. 14340
Nelson P. Boyle, Atty. No. 39525
Burg Simpson Eldredge Hersh & Jardine, PC
40 Inverness Drive East
Englewood, CO 80112
Tel: (303) 792-5595 | Fax: (303) 708-0527
[email protected]
[email protected]
[email protected]
OPENING BRIEF

COURT USE ONLY

Supreme Court
Case No.: 2014SC224

CERTIFICATE OF COMPLIANCE WITH WORD LIMIT

I hereby certify that this brief complies with all requirements of C.A.R. 28, and
C.A.R. 32, including all formatting requirements set forth in those rules.
Specifically I certify:
(a) This brief complies with C.A.R. 53(a) and C.A.R. 32 (a)(3) because it
contains 8677 words, as determined using the word processor=s word count function in
compliance with the rule.
(b) This brief complies with C.A.R. 28(k) because it contains under separate
heading a concise statement of the applicable standard of review, with citation to legal
authority; and citation to the precise location in the record where the issue was raised
and ruled upon, as required.

s/ James G. Heckbert

ii

TABLE OF CONTENTS
I. ISSUE PRESENTED FOR REVIEW .................................................................. 1
II. STATEMENT OF THE CASE ........................................................................... 2
A. Nature of the Case ..................................................................................... 2
B. Course of Proceedings in the District Court ............................................. 3
C. Disposition in the Court of Appeals ......................................................... 3
1. The Majority Opinion ...................................................................... 4
2. The Dissenting Opinion .................................................................. 4
III. STATEMENT OF RELEVANT FACTS .......................................................... 6
IV. STANDARD OF REVIEW AND PRESERVATION OF THE ISSUE ........... 9
V. SUMMARY OF THE ARGUMENT .................................................................. 9
VI. ARGUMENT ................................................................................................... 12
A. The SSA's definition of "inherent dangers and risks of skiing" does
not include in-bounds avalanches in areas open to skiers ...................... 12
1. When an unambiguous statute abrogates the common law,
the Court must read it narrowly to find and apply its plain
meaning. ....................................................................................... 13
2. The SSA prescribes the duties and liabilities of ski area
operators and skiers ..................................................................... 14
3. The statute is not ambiguous and does not immunize ski area
operators from suit for in-bounds avalanches in open areas ....... 17
iii

B. Courts do not add words or terms to expand a statute's meaning and they
strain not to expand a list to include items unlike those the
General assembly included .................................................................... 20
1. Courts will not pen new language in finite, enumerated lists
without clear permission from the General Assembly, andtypically
will restrain their reading, favoring strict construction
of statutes abrogating the common law ............................................ 20
2. Despite abundant controlling precedent to the contrary, the
court of appeals inserted avalanches into the General Assembly's
definition and expanded the SSA's otherwise limited immunity
for ski area operators ......................................................................... 22
C. Even if the statute is ambiguous, avalanche does not fall
within the definition for which there is limited immunity ..................... 24
1. When a statute is ambiguous, the Court resorts to rules
of statutory construction, legislative history, and other tools
to determine and give meaning to the General Assembly's
intent ................................................................................................ 24
2. The SSA's "legislative declaration" limits its scope ......................... 26
3. The General Assembly chose to leave "avalanches" out of the
definition, removed the expansive words from the definition
before enacting it, and intended a narrow reading of the common
and avoidable things it listed ............................................................. 27
4. The 2004 amendment nine years after Graven did not
dramatically expand the definition .................................................... 34
5. The General Assembly's choice to vary its use of terms
indicates its intention that the word including at issue here
had a narrower meaning than its use of broader variations
throughout the SSA ............................................................................ 37
iv

6. Other provisions of the SSA also show that avalanche is not

an inherent risk of skiing .................................................................... 38
7. Other States' SSAs support Ms. Fleury's reading of the
Colorado SSA ...................................................................................... 38
VII. CONCLUSION .............................................................................................. 39
VIII. APPENDICES ............................................................................................... 40
1. 1979 Session Laws
2. 1990 Session Laws
3. 2004 Session Laws
4. Meyer, John, "Loveland's Over the Rainbow was cleared by
human-set avalanche," Denver Post, October 16, 2012.

TABLE OF AUTHORITIES
Cases

Page No.

Archer Daniels Midland Co. v. State, 690 P.2d 177 (Colo. 1984) ......................... 29
Avicomm, Inc. v. Colo. Pub. Utils. Comm'n., 955 P.2d 1023 (Colo. 1998) ........... 13
Bayer v. Crested Butte Mt. Resort, 960 P.2d 70 (Colo. 1998) ........................ passim
Bedford v. Johnson, 78 P.2d 373 (Colo. 1938) ...........................................20, 22, 35
Carlson v. Ferris, 85 P.3d 504 (Colo. 2003) .......................................................... 37
Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991) .................................. 27
Cooper v. People, 973 P.2d 1234 (Colo. 1999) .............................................. passim
Doering ex rel. Barrett v. Copper Mountain, 259 F.3d 1202 (10th Cir. 2001) ...... 28
Exotic Coins, Inc. v. Beacom, 699 P.2d 930 (Colo. 1985) ...............................22, 35
Farmers Group, Inc. v. Williams, 805 P.2d 419 (Colo. 1991) ............................... 25
Fleury v. IntraWest Winter Park Operations Corp., 2014 COA 13 ............... passim
Gallegos v. Phipps, 779 P.2d 856 (Colo. 1989) ..................................................... 36
Graven v. Vail Associates, 909 P.2d 514 (Colo. 1995) .................................. passim
Hawes v. Colo. Div. of Ins., 65 P.3d 1008
(Colo. 2003) .......................................................................................... passim
Jefferson County Bd. of Equalization v. Gerganoff, 241 P.3d 932
(Colo. 2010) .................................................................................................. 28

vi

Kumar v. Copper Mt. Resort, 431 Fed. Appx. 736 (10th Cir. 2011) ...................... 12
LaDuke v. CF & I Steel Corp., 785 P. 2d 605 (Colo. 1990) .............................22, 35
Lombard v. Colorado Outdoor Educ. Center Inc., 187 P.3d 565
(Colo. 2008) ......................................................................................................32, 36
Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61 ........ 9
People v. Gross, 830 P2d 933 (Colo 1992) ......................................................21, 22
People v. Summers, 208 P.3d 251 (Colo. 2009) ..................................................... 29
People v. White, 242 P.3d 1121 (Colo. 2010) ......................................................... 37
Robinson v. Colo. State Lottery Div., 179 P.3d 998 (Colo. 2008) .......................... 37
Preston v. Dupont, 35 P.3d 433 (Colo. 2001) ................................................ passim
Rowan v. Vail Holdings, Inc., 31 F.Supp.2d 889 (D. Colo. 1998) ......................... 28
Specialty Rests. Corp. v. Nelson, 231 P.3d 393 (Colo. 2010) ..........................13, 18
Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007) ............................................ passim
Turbyne v. People, 151 P.3d 563 (Colo. 2007) ....................................................... 13
Vigil v. Franklin, 103 P.3d 322 (Colo. 2004) .............................................20, 22, 35
Welby Gardens v. Adams County Bd. of Equalization, 71 P.3d 992
(Colo. 2003) .................................................................................................. 17
Weinstein v. Colborne Foodbotics, LLC, 2013 CO 33 ........................................... 13

vii

Statutes
' 2-4-101, C.R.S. .................................................................................................... 18
' 2-4-203, C.R.S. ..............................................................................................25, 27
' 13-21-102.5(2)(a), C.R.S. .................................................................................... 21
' 13-21-102.5(2)(b), C.R.S. .................................................................................... 21
' 13-21-102.5(5), C.R.S. ......................................................................................... 21
' 13-21-115, C.R.S. ................................................................................................ 36
' 13-22-107, C.R.S. ................................................................................................ 36
' 13-64-204, C.R.S. ................................................................................................ 21
' 18-12-101, C.R.S. ................................................................................................ 21
' 33-44-101, C.R.S. .................................................................................................. 1
' 33-44-102, C.R.S. ....................................................................................15, 26, 27
' 33-44-103(3.5), C.R.S. ................................................................................. passim
' 33-44-103(8), C.R.S. ............................................................................................ 24
' 33-44-103(10), C.R.S. .......................................................................................... 16
' 33-44-106, C.R.S. ................................................................................................ 15
' 33-44-107, C.R.S. ................................................................................................ 15
' 33-44-107(2)(d), C.R.S. ....................................................................................... 16
' 33-44-107(8), C.R.S. ............................................................................................ 10
viii

' 33-44-107(8)(b), C.R.S. ....................................................................................... 38

' 33-44-107(8)(c), C.R.S. ....................................................................................... 38
' 33-44-108, C.R.S. ................................................................................................ 15
' 33-44-109, C.R.S. ..........................................................................................15, 26
' 33-44-112, C.R.S. ..................................................................................1, 4, 12, 26
Ch. 341, ' 1 2004 Colo. Sess. Laws 1383 ..................................................16, 34, 36

Rules
C.R.C.P. 12(b)(6) ...................................................................................................... 3
C.R.C.P. 12(c) ....................................................................................................... 3, 9

Other Authorities
March 1990 H. Comte. Ref. Rpt. ............................................................................ 32
Alaska Stat. ' 05.45.200(3) ..................................................................................... 38
Idaho Code Ann. ' 6-1106 ...................................................................................... 38
Me. Rev. Stat. Ann. ' 15217(1)(A) ........................................................................ 38
Mich. Comp. Laws, ' 408.342(2) ........................................................................... 38
Mont. Code Ann. ' 22-2-702(2)(c) ...................................................................38, 39
N.M. Stat. ' 24-15-10 ............................................................................................. 38
ix

Or. Rev. Stat. ' 30.970(1) ....................................................................................... 38

Utah Code Ann. ' 78B-4-402(1) ....................................................................... 27, 3

I.

ISSUE PRESENTED FOR REVIEW

In adopting the Ski Safety Act (SSA), the General Assembly established
safety standards for and defined the rights, responsibilities, and liabilities of ski
area operators and skiers. 33-44-101, et. seq., C.R.S.1 See Graven v. Vail
Associates, 909 P.2d 514, 517 (Colo. 1995). The General Assembly chose to give
ski area operators limited statutory immunity from suit for injuries to skiers, but
only for injuries resulting solely from the inherent dangers and risks of skiing.
33-44-112, C.R.S. In a legislative term of art, the SSA defines the inherent
dangers and risks of skiing to include obstacles and conditions skiers should
reasonably expect to encounter while skiing. 33-44-103(3.5), C.R.S. The
General Assembly did not include the word avalanche in the list of inherent
dangers and risks of skiing yet, in the decisions below, the district court and the
court of appeals added avalanche to that list.
This Court granted certiorari review to consider the following issue:
Whether, for the purposes of the Ski Safety Act of 1979,
codified at sections 33-44-101 to -114, C.R.S. (2014), the term
inherent dangers and risks of skiing, as defined in section 3344-103(3.5), C.R.S. (2014), encompasses avalanches that occur
within the bounds of a ski resort, in areas open to skiers at the
time in question.
1

Except as indicated, citations to the Colorado Revised Statutes refer to the

2014 revision.
1

Order, December 8, 2014. Ms. Fleury submits that it does not and that the Court
should vacate the decision below.
II.
A.

STATEMENT OF THE CASE

Nature of the case

On January 22, 2012, an avalanche killed Christopher Norris while he

skied in an area known as Trestle Trees inside the bounds of Winter Park
Resort, a ski area operated by IntraWest Winter Park Operations Corporation
(Winter Park). His surviving spouse, Salynda Fleury, sued Winter Park on behalf
of herself and her children, for negligence, wrongful death and willful and wanton
conduct. (ROA #002).
In her Complaint, Ms. Fleury alleged that, in light of avalanche warnings
and its own experience, Winter Park knew the Trestle Trees area would likely
experience dangerous avalanches should skiers enter the area under the existing
conditions. Despite this knowledge, Winter Park chose not to close the Trestle
Trees area or warn skiers of the high avalanche danger in the Trestle Trees area.
(ROA #002 17-31). Ms. Fleury also alleged that Christopher Norris could
rightly assume the Trestle Trees area was safe from avalanche danger when
Winter Park did not close the area. (Id. 32).

B.

Course of Proceedings in the District Court.

After answering, (ROA #004), Winter Park moved for a determination of

law and judgment on the pleadings, claiming immunity from liability under the
SSA, arguing that an avalanche constitutes an inherent danger or risk of skiing.2
(ROA #013). After briefing, the district court granted Winter Parks motion,
finding the avalanche that killed Mr. Norris fell within the statutory definition of
the inherent dangers and risks of skiing in 33-44-103(3.5), for which Winter
Park had limited statutory immunity. (ROA #047). Ms. Fleury timely moved for
reconsideration of the District Courts ruling. (ROA #050055). The district court
denied the motion on its merits, finding no authority upon which it could
reconsider its prior ruling. (ROA #065).
C.

Disposition in the Court of Appeals.

In a published 2-1 opinion, the court of appeals affirmed the dismissal of

Ms. Fleurys wrongful death action. Fleury v. IntraWest Winter Park Operations
Corp., 2014 COA 13.

Although Winter Park moved to dismiss the complaint pursuant to

C.R.C.P. 12(b)(6), the district court decided the motion under C.R.C.P. 12(c).
(ROA #047 at 2).
3

1. The Majority Opinion.

In the majority opinion, Judges Fox and Navarro affirmed the district
courts dismissal. Fleury 1-23. According to the majority, the General
Assembly typically uses include as a word of expansion before an illustrative
list, so they read the definition in 33-44-103(3.5) expansively. Id. 11. The
majority found that Ms. Fleurys own allegations attributed the fatal avalanche
to changing snow conditions (new snowfall) and existing snow conditions (weak
and unstable snowpack) caused by weather and slope steepness (slope exceeding
thirty degrees). Id. 14. Thus, according to the majority, avalanche falls neatly
into the examples of dangers in the SSA. Id. 15. Discussing part of the 2004
amendment to the statutory definition, the Court ruled that inclusion of an
avalanche as an inherent danger or risk of skiing is consistent with the General
Assemblys intent, as evidenced by the evolution of the Act. Id. 19.
2. The Dissenting Opinion.
Judge Jones dissented. Because 33-44-103(3.5) does not expressly or by
clear implication include avalanches occurring on open, designated ski trails
within its definition the grant of immunity in 33-44-112, for injuries resulting
from the inherent dangers and risks of skiing does not apply to [in-bounds
avalanche] injuries. Id. 29. He reasoned that because the SSA grants an
4

immunity from suit in derogation of the common law, the Court must strictly
construe the statute. Id. 37.
In Judge Joness view, the majoritys reading contravenes the governing
principles that a statutes grant of immunity must be strictly construed, may not
be expanded by construction, and must appear expressly or by clear implication.
Id. 38. Citing this Courts precedent, Judge Jones also noted that the General
Assembly has spoken with exactitude in defining the inherent dangers and risks
of skiing, delineating with specificity the types of conditions and events which
fall within that definition. Id. 39.
It is not as if avalanches are unheard of occurrences in
mountainous areas, or even on or near ski areas. And yet the
General Assemblydespite formulating a lengthy definition
identifying numerous specific conditions and eventsdid not
expressly (or otherwise clearly) include avalanches. Given the
exactitude with which the General Assembly has spoken, I do
not believe it is appropriate for us to essentially add another
event to the definition.
Id. 40.
Finally, Judge Jones pointed out that while other states have statutes nearly
identical to Colorados SSA, only Montanas statutory definition of the inherent
dangers and risks of skiing adds avalanches, except on open, designated ski
trails. Id. 53, citing MONT. CODE ANN. 22-2-702(2)(c). This indicates
Montanas General Assembly did not believe the other listed conditions included
5

avalanche, and that avalanches on open, designated trails are not inherent dangers
or risks of skiing. Fleury 53. Thus, Judge Jones concluded, at the very least
Colorados statutory definition is ambiguous, and a court must resolve that
ambiguity by concluding no immunity exists for injuries resulting from
avalanches. Id.
III.

STATEMENT OF RELEVANT FACTS

In the early afternoon on Sunday, January 22, 2012, while skiing in-bounds
at Winter Park, an avalanche caught Christopher Norris in the Trestle Trees and
killed him. At that time, Winter Park knew the Trestle Trees area would likely
experience dangerous avalanches should skiers enter the area under the existing
conditions, based on avalanche warnings issued before Mr. Norris death.
On Saturday, January 21, 2012, at 6:24 A.M., about 36 hours before Mr.
Norris died in the avalanche, the Colorado Avalanche Information Center issued
an avalanche forecast and warning for the Front Range zone, which included
Winter Park Resort, in effect through 12 oclock noon, January 23, 2012. The
warning, which informed backcountry users of specific backcountry avalanche
dangers, stated, as follows:
An avalanche warning is in effect for today. Natural and human
triggered avalanches are very likely. Be careful near or below
any slope over 30 degrees. You will be able to easily trigger
avalanches on most aspects and elevations. Triggering
6

avalanches from distances of 100 feet away or greater is likely.

The largest avalanches will occur on slopes facing north
through east through southeast near and above tree line.
Widespread but smaller avalanches are likely on all other
slopes.
The Front Range will see an increase in winds and snowfall
today. A cold front will hammer the zone about sunset tonight.
Strong winds and periods of heavy snowfall later today all point
to an increasing avalanche danger. Backcountry users should
expect to find propagating cracks in the snowpack, natural
avalanche activity, remote triggered avalanches, some from a
long way away from where you stand, deep rumbling collapses,
and an increasing possibility of human triggered avalanches.
This has the potential to be a fairly dangerous weekend for
back county travelers.
* * *
Reading through these recent observations it is pretty easy to
see that we are starting to push into areas of higher avalanche
danger. With todays storm with strong winds and periods of
heavy snowfall lurking on the horizon, backcountry travelers
should anticipate an increasing avalanche danger for the
weekend.
(ROA #002, 9 (emphasis added)). While the forecast specifically warned of
avalanche danger in backcountry areas to backcountry users and travelers, it did
not mention ski areas. (Id.)

On Sunday, January 22, 2012, at 6:52 A.M., the Center issued another
avalanche warning for the Front Range, including the Winter Park Resort, in
effect through 12 oclock P.M., January 24, 2012. The Center recommended that
skiers avoid avalanche terrain in favor of skiing in the safety of a ski area.
Widespread dangerous avalanche conditions exist today.
Triggering avalanches is likely on any snow-covered slope 30
degrees or steeper that did not slide during the natural cycle
yesterday. The natural avalanche cycle has largely run its
course, so I will drop the Avalanche Warning, but natural
avalanches are still possible today. Triggering slides will be
easy today, and some of them will be bigger than what we have
seen so far this winter. Triggering avalanches remotely and
from low angle or even flat terrain is likely. Be very wary near
or below any avalanche terrain, and keep in mind that even
small slides can bury and kill you.
Travel in the back country is not recommended today. 4 to 6
inches fell overnight and another 2 to 4 inches will fall this
morning. Strong west to southwest winds are drifting this snow
onto northerly and easterly aspects. This weak snowpack will
not be able to handle even this modest new load. Natural and
human triggered avalanches are likely today. You will be able
to remotely trigger slides from distances of 100 feet or greater
and from flat areas. Some of these avalanches could be quite
large. Avoid avalanche terrain today, or enjoy the powder in
the safety of the ski area.
(Id. 10 (emphasis added)).

IV.

STANDARD OF REVIEW AND PRESERVATION OF THE ISSUE

This Court reviews the construction of statutes de novo. Stamp v. Vail

Corp., 172 P.3d 437, 442 (Colo. 2007). When ruling on a C.R.C.P. 12(c) motion
for judgment on the pleadings, courts must construe the allegations of the
pleadings strictly against the movant, must consider the allegations of the
opposing parties pleadings as true, and should not grant the motion unless the
pleadings themselves show that the matter can be determined upon the pleadings.
Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61,
16-17.
Ms. Fleury preserved the issue in her response and objection to the Motion
to Dismiss or for Judgment on the Pleadings as well as in her motion for
rehearing. (ROA #021, #022, #050 - #55, and #58 #61).
V.

SUMMARY OF THE ARGUMENT

Contrary to the majority opinion, avalanche does not fall neatly into the
list of inherent dangers and risks of skiing that the General Assembly identified in
the SSA. The word avalanche does not appear in the statute, despite multiple
iterations of the term inherent dangers and risks of skiing and the court of
appeals should not have added it, neatly or otherwise.

The list of inherent dangers and risks of skiing specifically sets out those
conditions for which the General Assembly thought ski area operators should
have a limited immunity from liability. Courts are not free to pencil in additional
inherent risks they deem worthy to include, either through adding risks to that
finite list or by inferring additional unidentified risks of which the public has
never been given notice pursuant to the signage and notice requirements of 3344-107(8), C.R.S.
Winter Park could have eliminated the risk of being swept away in an inbounds avalanche at Winter Park Resort on January 22, 2012, by reasonable
safety measures. Winter Park could have easily warned skiers that specific areas,
such as the Trestle Trees, were closed due to that danger or warned of their
propensity to avalanche. (ROA #002 9, 10, 18-32). Winter Park chose not to
do so and Mr. Norris died from an in-bounds avalanche in an area open to skiers.
Winter Park has defended this lawsuit on the theory that the SSA requires
skiers to bear the risk of in-bounds avalanches on its slopes, and convinced the
court of appeals to endorse that reading. In light of the breadth of the opinion, it is
anyones guess whether skiers now need to abate avalanche risks through selfhelp, or to obtain specialized avalanche awareness training and equip themselves

10

and their children with avalanche beacons and other specialized backcountry
safety equipment.
Under the rule announced by the majority, any avalanche, even one caused
by the ski areas negligence or recklessness, would be an inherent danger of
skiing, for which the ski area may avoid liability. This is contrary to the common
sense understanding of where dangerous avalanches occur and to the general
sense that skiing in-bounds at a ski area eliminates the risk of being caught in an
avalanche. See e.g., CAIC warnings (ROA #002 9, 10) (quoted in the Facts
section, supra, at 68). It also runs contrary to the truth that ski area operators
know their mountains terrain, understand where and under what conditions
avalanches are likely to occur in-bounds, and are required to abate the danger of
avalanches using explosives, trail closures, and other techniques before skiers
arrive to ski in the morning. Instead, the majority decision has now placed on
skiers the burden of ensuring their own safety and that of their families.
There is a better waythe one intended from the statutes plain text, as
supported by the legislative history. The conditions identified in 33-44-103(3.5),
constitutes an exclusive list of conditions: if one of those conditions causes a skier
to suffer an injury, then the ski area has a limited immunity from suit. Otherwise,

11

no immunity exists. If the General Assembly wishes to include avalanches within

the inherent risks of skiing it may do so expressly.
VI.
A.

ARGUMENT

The SSAs definition of inherent dangers and risks of skiing

does not include in-bounds avalanches in areas open to skiers.

Neither the SSA as originally enacted in 1979, nor the amendments of 1990
and 2004, completely immunize ski area operators for their negligent, reckless, or
intentional acts. Rather, the SSA gives ski area operators a limited immunity from
suit for injury resulting from the inherent dangers and risks of skiing. 33-44112.
In Kumar v. Copper Mt. Resort, 431 Fed. Appx. 736 (10th Cir. 2011), the
court explained that under the SSA a ski area operator may be liable under one of
two theories. First, if an injury does not result from an inherent danger or risk of
skiing, it falls outside the scope of the SSA and is governed by common law
negligence. Id. at 738. Second, if an injury results from a ski areas violation of
the statutory duty imposed by the SSA, then the SSA does not provide immunity
from suit. Id. However, if an injury results solely from an inherent danger or risk
of skiing, ski areas have a limited immunity under the statute and cannot be sued.
Thus, a proper interpretation of the statutory definition of the inherent dangers

12

and risks of skiing is critical to determining whether a skier can sue for his or her
injuries or whether the statute abrogates that common law right.
1. When an unambiguous statute abrogates the common law,
the Court must read it narrowly to find and apply its plain
meaning.
Courts presume that the General Assembly intends a just and reasonable
result when it enacts a statute, and a statutory construction that defeats the
legislative intent will not be followed. 2-4-201(1)(c), C.R.S.; Avicomm, Inc. v.
Colo. Pub. Utils. Comm'n., 955 P.2d 1023, 1031 (Colo. 1998). When construing a
statute, the Courts primary purpose is to ascertain and effectuate the intent of
the General Assembly. Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007). To
find the General Assemblys intent, the Court first will look to the plain and
ordinary meaning of the statutory language. Id. If the language is clear the Court
will apply that meaning. Id.
This Court will not add words to a statute. Id. Nor will it construe a statute
in a manner that assumes the General Assembly made an omission; rather, the
General Assemblys failure to include particular language is a statement of
legislative intent. Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo.
2010). The Court assumes that the General Assembly meant what it clearly
said. Weinstein v. Colborne Foodbotics, LLC, 2013 CO 33, 19. And the Court
13

will not strain the plain meaning of words in order to create an imagined
connection. Preston v. Dupont, 35 P.3d 433, 440 (Colo. 2001).
Statutes in derogation of the common law must be strictly construed in
favor of the person against whom their provisions are intended to be applied.
Preston, 35 P.3d at 440. So if the General Assembly wishes to abrogate common
law remedies it must manifest that intent expressly or by clear implication.
Cooper v. People, 973 P.2d 1234, 1239 (Colo. 1999) legis. superseded on other
grounds; Bayer v. Crested Butte Mt. Resort, 960 P.2d 70, 74-75 (Colo. 1998).
That is, the General Assembly does not intend by a statute to make any change in
the common law beyond what it declares by its express terms. Hawes v. Colo.
Div. of Ins., 65 P.3d 1008, 1021 (Colo. 2003). Thus, unless the legislature clearly
and unmistakably abrogates a remedy available at common law [this Court] will
not infer it. Id. Consistent with Cooper, Bayer, Hawes, and Preston, this Court
should strictly construe the SSAs immunity provisions in favor of a skiers
common law rights and against the area operator.
2. The SSA prescribes the duties and liabilities of ski area
operators and skiers.
The legislative purpose behind the SSA and the placement of the relevant
provisions within the statutory scheme provide guidance for the Court in
construing its provisions. The legislative declaration is often the best guide to the
14

General Assemblys intent. Stamp, 172 P.3d at 443.Accordingly, this Courts

prior construction of the SSA relied in part on a statutory legislative declaration
and on another legislative declaration included in the 1990 Session Laws, which
shed light on the General Assemblys intent behind the SSA and the definition at
issue here. See Graven, 909 P.2d at 517; Stamp, 172 P.3d at 443-44.
Since 1979, the SSA has recognized that dangers inhere in the sport of
skiing, regardless of any and all reasonable safety measures which can be
employed. 33-44-102, C.R.S.; Graven, 909 P.2d at 517. In recognition of these
risks, the General Assembly established reasonable safety standards for and
defined the relative rights, responsibilities, and liabilities of and between ski area
operators and skiers. Id. The duties of ski area operators are found in 33-44-106,
C.R.S. (signs); 33-44-107, C.R.S. (signs and notices); and 33-44-108, C.R.S.
(additional duties). The duties of skiers are found in 33-44-109, C.R.S. Nothing
in the SSA makes these duties exclusive to either the ski area operator or skiers,
nor can it reasonably be inferred the listed duties are exclusive.
The 1979 version of the SSA noted the existence of inherent dangers of
skiing but did not define them. Graven, 909 P.2d at 517. In a 1990 amendment,
the General Assembly added the portion of the SSA pertinent here. As this Court
has recognized, by doing so the General Assembly intended to clarify the law
15

regarding the duties and responsibilities of skiers and ski area operators and to
provide additional protection for ski area operators. Graven, 909 P.2d at 517518, citing Ch. 256, 1, (non-statutory) Legislative Declaration, 1990 COLO.
SESS. LAWS 1540. That 1990 amendment introduce[d] and define[d] the phrase
inherent dangers and risks of skiing, and exclude[ed] such dangers and risks
from the ski area operators duty to warn and from the causes of injuries upon
which a claim can be based. Id., citing Ch. 256, 2, 3, 7, 33-44-103(10),3 107(2)(d), -112, 1990 COLO. SESS. LAWS 1540, 1541, 1543. The amendment
added language that expressly limits the SSAs scope (as relevant here) to a list of
inherent dangers and risks of skiing. Id.
In 2004, the General Assembly amended its definition of inherent dangers
and risks of skiing. The amendment struck the word integral, while it
specifically added cliffs and extreme terrain to the list of surface or subsurface
conditions and added freestyle terrain and jumps to the list of manmade
variations of steepness and terrain. Ch. 341, 1 2004 COLO. SESS. LAWS 1383.
Despite that level of specificity in its amendment, the General Assembly did not

Note: Before publication, the Revisor of Statutes apparently renumbered

33-44-103(10) in the session law as 33-44-103(3.5) in the permanent statutes.
16

add avalanche. The General Assembly has not subsequently amended 33-44103(3.5).
The Court may also consider the SSAs legislative history to verify its
construction, even when the statute is unambiguous. Graven, 909 P.2d at 517, n.
3 and 519, n. 5; Welby Gardens v. Adams County Bd. of Equalization, 71 P.3d
992, 995 (Colo. 2003) (even though Court found language unambiguous the
Court considered the legislative history and found it supported the Courts
construction of the statute).
With that statutory history and legislative intent in mind, the plain meaning
of inherent dangers and risks of skiing as a legislative term of art comes into
focus.
3. The statute is not ambiguous and does not immunize ski area
operators from suit for in-bounds avalanches in open areas.
The SSA does not immunize ski area operators from in-bounds avalanches
that occur within areas open to skiers. The legislature has carefully chosen how
to let stand, supplement, or limit application of the common law in the arena of
ski safety . Bayer, 960 P.2d at 76.
To begin, the plain language of the SSA defines inherent dangers and
risks of skiing. In creating this statutory term of art, the General Assembly has
cabined the scope of the words inherent and danger by listing specific types
17

of risks. The General Assembly did not include avalanche in the list of inherent
risks of skiing, despite common knowledge of avalanche danger in the mountains.
As Judge Jones observed in the dissent, the General Assembly identified
particular events which would fit within the statutory definition collisions with
natural objects, impacts with man-made objects, and collisions with other skiers.
Fleury 47 (Jones, J., dissenting). But [t]he event at issue herean avalanche
is not among them. Id. (footnote omitted).
The Court should resist any urge to assume the General Assembly made
such a glaring omission and should instead apply the statute as written. Spec.
Rests. Corp., 231 P.3d at 397. Words and phrases that have acquired a technical
or particular meaning, whether by legislative definition or otherwise, shall be
construed accordingly. 2-4-101, C.R.S. A court must apply the words as written
and should not reach to create an imagined connection between parts of the
definition or infer a legislative abrogation of common law rights absent a clear
expression of legislative intent. Preston, 35 P.3d at 440-41; and see Hawes, 65
P.3d at 1021.
Notwithstanding these rules, and without regard to the manner in which the
General Assembly cabined the words danger and inherent, the majority
opinion resorted to a broader dictionary definition of the word danger. Fleury
18

15. Much like the court of appeals did in Graven, the majority opinion here erred
when it broadly construed the definition of inherent dangers and risks of skiing
in 33-44-103(3.5), by cobbling together three categories of covered dangers
and risks to reach a conclusion that expands the definition beyond what the
General Assembly intended. Fleury 38 (dissent). After all, a ski area exists as a
steep mountainous land form with old and new snow conditions caused by
weather. The majoritys construction renders the inherent risks of skiing
limitless and in doing so, failed to follow this Courts directives regarding
statutory construction, particularly where the statute abrogates common law
causes of action. The statutes plain language reveals that the General Assembly
did not intend to allow courts to expand the scope of the limited immunity.
Rather, strictly construing subsection (3.5), the Court should find that the
dynamic process of an avalanche cannot possibly be fabricated into an inherent
risk of skiing from the list of conditions a skier should reasonably expect to
encounter within the bounds of a ski area.

19

B.

Courts do not add words or terms to expand a statutes meaning

and they strain not to expand a list to include items unlike those
the General Assembly included.
1. Courts will not pen new language in finite, enumerated lists,
and typically will restrain their reading, favoring strict
construction of statutes abrogating the common law.

When interpreting statutory lists, such as the the inherent risks of skiing,
this Court has long relied upon common law tools, such as the negative
implication cannon and the cannons of inclusion unius est exclusion alterius and
noscitur a sociis (a word is known by the company it keeps) to highlight the
limits on judicial power to change statutory language. See e.g., Bedford v.
Johnston, 78 P.2d 373, 376 (Colo. 1938) (under the legal doctrine of noscitur a
sociis ... the meaning of a doubtful word may be ascertained by reference to the
meaning of words associated with it.). Also, the negative implication canon,
bars courts from inserting additional language into finite lists, because when the
legislature speaks with exactitude, [the Court] must construe the statute to mean
the inclusion or specification of a particular set of conditions necessarily excludes
others. Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004); quoting Lunsford v.
Western States Life Ins., 908 P.2d 79, 84 (Colo. 1995). Here, the degree of
specificity in subsection (3.5), as adopted in 1990 and as amended in 2004
(adding additional specific terms), calls for application of this rule. Fleury 39
20

(dissent) (finding this rule applies here).

While this Court has at times expanded legislative lists, it does so with
caution, carefully avoiding going beyond the limits the General Assembly set
within the meaning of the statutory scheme as a whole. For instance, in People v.
Gross, 830 P.2d 933, 936 (Colo. 1992), the Court held that the definition of
knife in 18-12-101, C.R.S., included a screwdriver when the prosecution
proved defendants intent to use it as a weapon:
Knife means any dagger, dirk, knife, or stiletto with a blade
over three and one-half inches in length, or any other dangerous
instrument capable of inflicting cutting, stabbing, or tearing
wounds * * *.
Thus, the Courts reading did not go beyond the General Assemblys intent to
include instruments capable of being used for a violent cutting, stabbing, or
tearing attack.
In Preston, the Court considered whether the definition of noneconomic
damages in 13-64-204, C.R.S., was limited to 13-21-102.5(2)(a) and (2)(b),
C.R.S., or also subject to 13-21-102.5(5), which excludes physical impairment
and disfigurement damages from the noneconomic damages cap. Preston, 35 P.3d
at 438-41. The Court reasoned that although the word including may generally
be a word of enlargement, that conclusion alone does not end the inquiry. Id.
There, the term did not signal unqualified expansion to encompass every possible
21

thing. Id. Instead, within the statutory scheme, the defendants argument for
expansion failed since it went beyond the General Assemblys intentions.
Similarly, in Exotic Coins, Inc. v. Beacom, 699 P.2d 930, 944 (Colo. 1985),
this Court held that the use of the words including, but not limited to did not
make the term valuable article unconstitutionally vague, since the General
Assembly limited what could fall within the definition to items of similar kind
and quality. In LaDuke v. CF & I Steel Corp., 785 P.2d 605, 610 (Colo. 1990),
the Court rejected the defendants attempt to expand the scope of a statute, stating
the argument would have been more persuasive [i]f the list had been merely
descriptive (e.g., if the list were preceded by the familiar phrase including but
not limited to).
2. Despite abundant controlling precedent to the contrary, the
court of appeals inserted avalanches into the General
Assemblys definition and expanded the SSAs otherwise
limited immunity for ski area operators.
Despite the rules of construction in Cooper, Bayer, Hawes, and Preston,
which require strict construction of the SSA, and notwithstanding the Courts
admonitions in Preston, Bedford, Vigil, Lunsford, Gross, and LaDuke, which bar
expanding finite, detailed lists of like items, the court of appeals majority added
avalanche to the list of inherent risks of skiing and expanded the limited
statutory immunity. This Court should not make that same error.
22

The court of appeals majority combined several items from the General
Assemblys definition snow conditions as they exist or may change,
variations in steepness and terrain, and changing weather conditions to find
that avalanche falls neatly within the statute. In combining these three
separate conditions (snow, grade, and weather), which skiers reasonably expect to
occur on open areas within the ski resort, the court of appeals judicially amended
the statute to add a new dynamic event, that no skier reasonably expects to have
occur on open portions of an in-bounds ski trail.
Due to the very nature of the sport of skiing, every injury which occurs at a
ski area has some implication of snow, steepness of grade and weather. Based
upon the court of appeals interpretation of the definition, every injury is now the
result of the inherent risks of skiing. Is a skier collision with a recklessly driven
snowmobile, as in Stamp, an inherent risk of skiing because the skier slipped and
fell on the snow while trying to avoid the snowmobile, only to be run over while
lying on the ground? It was not the intent of the General Assembly to grant
unlimited immunity to ski area operators for negligent and reckless conduct when
the conditions of snow, steepness of terrain and weather were only implicated
in the injury. Graven, 909 P.2d at 519, 520-521.

23

Inferring the term avalanche as an inherent risk or danger would

essentially immunize ski operators from any liability, leaving them free to
recklessly create hazards without consequences. Inclusion of avalanche as an
inherent risk of skiing would apply to any occurrence at a ski area. Is a skier
expected to know that avalanche is an inherent risk, when she parks her car in the
lot downhill from the ski run to finish her morning coffee and is engulfed by an
avalanche carelessly caused by ski area employees?4
C.

Even if the statute is ambiguous, avalanche does not fall within

the definition for which there is limited immunity.
1. When a statute is ambiguous, the Court resorts to rules of
statutory construction, legislative history, and other tools to
determine and give meaning to the General Assemblys
intent.

Even if the SSA is ambiguous, the Court should apply the most restrictive,
narrow construction to meet the General Assemblys legislative purpose. The
codified legislative declaration to the 1979 SSA, the uncodified Legislative

The term skier within the SSA includes anyone who is using any of the
facilities of a ski area even though that person is not actually skiing. C.R.S. 3344-103(8). In February 2010, two Loveland Ski Area patrollers carelessly lit and
threw an avalanche bomb which caused a massive avalanche slide into the
Loveland parking lot, completely destroying a 1986 Honda Civic owned by one
of
the
patrollers.
Denver
Post,
October
16,
2012.
(http://bit.ly/loveland_avalanche_bomb, last checked on 9/7/2013)(attached as
Appendix 4).
24

Declaration to the 1990 Amendment, the legislative history of the 1990

Amendment adding subsection (3.5), and the statutory scheme as a whole
supports reversal of the court of appeals majority decision.
If a statutes language is ambiguous or capable of more than one
meaning, this Court construes the statute in light of the General Assemblys
objective. Stamp, 172 P.3d at 443. In order to determine its meaning, the Court
may consider, among other factors, the consequences of a particular construction
and the legislative declaration. Id. Often the best guide to legislative intent is
the context in which the statutory provisions appear and any accompanying
statement of legislative policy, such as a legislative declaration. Id. When a
statute is ambiguous this Court considers, among other aids, the statutes
legislative history, the state of the law prior to its enactment, and the
consequences of a particular construction. 2-4-203, C.R.S. When a statute is in
derogation of the common law tort right and is also ambiguous, the ambiguity
must be resolved in favor of a continuation of the common law right. Farmers
Group, Inc., v. Williams, 805 P.2d 419, 424 (Colo. 1991) (there must be clear
legislative intent to abrogate a common law tort right).

25

2. The SSAs legislative declaration limits its scope.

As set forth above, see section A2 supra, at 13-15, the General Assembly
expressly intended to limit the scope of the SSA through its legislative
declaration. Stamp, 172 P.3d at 443. In its 1979 legislative declaration, the
General Assembly explained that the SSAs purpose is to further define the legal
responsibilities of ski area operators ; to define the responsibilities of skiers ;
and to define the rights and liabilities existing between the skier and the ski area
operator 33-44-102, C.R.S. The legislative scheme, as a whole, bears this
out by prescribing specific duties of area operators and skiers. See e.g., 33-44104 112, C.R.S. The portion of the SSA pertinent here, limits its scope to a list
of inherent dangers and risks of skiing where the General Assembly provided a
defined, legislative term of art. 33-44-103(3.5), 33-44-109, 33-44-112.
Broad expansion of those enumerated items, beyond their scope, would
absolve the area operators of the duties prescribed elsewhere in the SSA, since
such broad expansion would defeat the limited nature of the immunity from suit.
Yet the court of appeals majoritys addition of avalanche contravenes the
General Assemblys expressed intention that the definition of inherent danger
and risk be limited in scope. Id. That intention is in the legislative history and the
statutory scheme as a whole.
26

Moreover, the legislative purpose found in 33-44-102 refers to the

dangers of skiing as dangers that inhere in the sport of skiing, regardless of any
and all reasonable safety measures which can be employed. Like the legislative
statement of purpose, the Utah Supreme Court interpreted Utahs statutory
definition of the inherent risks of skiing5 as those dangers that skiers wish to
confront as essential characteristics of the sport of skiing or hazards that cannot
be eliminated by the exercise of ordinary care on the part of the ski area
operator. Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1046 (Utah 1991)
(emphasis supplied).
3. The General Assembly chose to leave avalanches out of the
definition, removed the expansive words from the definition
before enacting it, and intended a narrow reading of the
common and avoidable things it listed.
Even if the definition of the inherent dangers and risks of skiing is
ambiguous, as Judge Jones suggested in his dissent the General Assembly
intended the conditions within the list of inherent dangers and risks to be
exclusive. Where a statute is ambiguous, courts may consider other indicators of
legislative intent such as legislative history and the General Assemblys
declaration of purpose. 2-4-203, C.R.S. Judge Jones conclusion that the
5

Utah Code Ann. 78B-4-402(1) defines inherent risks of skiing with

language which is nearly identical to that found in 33-44-103(3.5).
27

inherent risk definition is ambiguous gains traction when one considers the
majority in Graven held that whether an injury was due to the inherent risks of
skiing may not always be determined as a matter of law and should then be left to
the jury. Graven, 909 P,2d at 520. Statutory language is ambiguous when it is
susceptible of more than one reasonable interpretation. Jefferson Cnty. Bd. of
Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010). In a similar manner,
federal courts have on occasion left the determination of whether an injury
resulted from the inherent dangers and risks of skiing to the jury. Rowan v. Vail
Holdings, Inc., 31 F.Supp.2d 889, 903 (D. Colo. 1998) (jury question whether
skiers death due to inherent dangers of skiing); Doering ex rel. Barrett v. Copper
Mountain, 259 F.3d 1202, 1214 (10th Cir. 2001) (whether collision with snow
grooming equipment was an inherent risk of skiing was for the jury). Juries only
determine issues where reasonable minds can differ. Juries do not determine the
application of immunities. Allowing a jury to decide the interpretation of a
statutory definition would infer the statute is ambiguous.
The majority reasoned that an avalanche fell within the statutory definition
of inherent dangers and risks of skiing, because the General Assembly used the
term including preceding the list of inherent dangers within 33-44-103(3.5).
Fleury 11. The majority treated the word including as a term of extension or
28

enlargement, and then used that incorrect interpretation as an invitation to expand

the definition of the inherent risks of skiing to include avalanches. Id. However, a
review of the legislative history concerning the inclusion of including within
the inherent risk definition reveals the General Assembly intentionally used
including as a term of limitation rather than enlargement.
This Court may appropriately consider successive drafts of legislation to
discern the legislative intent behind a statute. People v. Summers, 208 P.3d 251,
255 n.2 (Colo. 2009); citing Singer & Singer, Sutherland Statutory Construction
558-59 (7th ed. 2007). Contemporaneous statements of individual legislators
provide the Court with insight into legislative intent. Archer Daniels Midland Co.
v. State, 690 P.2d 177, 183-84 (Colo. 1984).
When first introduced, the 1990 Amendment contained an expansive
definition of the inherent dangers and risks of skiing:
Inherent dangers and risks of skiing means those dangers or
conditions which are an integral part of the sport of skiing,
including, but not limited to, changing weather conditions
(ROA #053, p. 3 ll. 811 (emphasis added)). However, the House State Affairs
Committee amended the bills original, expansive language by removing the
phrase but not limited to which had been included in the Senates version of
33-44-103(3.5). (Compare original bill text ROA #057, p.3 ll. 10 to the enacted
29

statutory language in 33-44-103(3.5)). On March 13, 1990, the bills sponsor

moved to amend the bills original language to clarify that the listed conditions
constituted an exclusive list of the inherent dangers and risks of skiing:
REP. McINNIS: Mr. Chairman, would you like me to go
through the amendments briefly?
MR. CHAIRMAN: (inaudible).
MR. McINNIS: I think you all have a copy in front of you. The
first amendment is on page 3, line 10. We have stricken the
words but not limited to, so that it simply reads, the sport of
skiing, including, and then it goes on to say, changing weather
conditions, snow conditions, and so forth. This was requested
by Rep. Paulson. Its a slight narrowing of the amendment, and
its a clarification that the items that follow are the inherent
risks and dangers that are being referred to.
(ROA #051, tr. p. 35, ll. 6-18). (Emphasis added).
Colorado Ski Country USA, a ski area trade association, vigorously
supported and testified in favor of Senate Bill 80. (Sen. State Vet. & Mil. Affs.
Cmte., ROA #55, tr. p. 4, ll. 45, pp. 11, ll. 812, ll. 13). In response to a question
from a member of the House State Affairs Committee, a spokesperson for
Colorado Ski Country, USA, explained the narrowing effect of amending the bill
by striking but not limited to, as follows:
REP.(?): The first item, I dont understand why that why Rep.
Paulson wants that [but not limited to] out of there.
REP. IRWIN: I do not speak to .
30

REP. (?): (inaudible) for that, that it can be added.

REP. HAYES: Yeah. I think that Rep. Paulsons concern this
is Pancho Hayes again - I think his concern simply was that he
didnt want the Court expanding upon other items that
werent covered by the laundry list thats under the definition
of inherent risk. And frankly, we [Colorado Ski Country, USA]
dont intend the Court to do that, and have no objection to
removing that language.
(ROA #051, tr. p. 38, ll. 17-39:3) (emphasis supplied).6
Senator Bishop, the bills Senate sponsor, also commented that the
statutory definition of the inherent dangers and risks of skiing was intended to be
complete as written:
SEN. BISHOP:
*

We attempt to define inherent dangers and risks of skiing, and

you can read through that as to what were what were trying
to define it as. We may need fine-tuning and we may not. We
may be able to see that it is acceptable as its as its written.
(ROA #055, tr. 4:4 - 5:22).
A Committee of Reference Report indicates the House State Affairs
Committee adopted the amendment to the bill, which struck but not limited to.

Note, in the transcript spokesman Pancho Hayes was initially misidentified

as a Colorado Representative, but he corrected the misidentification on the record.
(ROA #051, tr. 38:22).

31

(March 1990 H. Cmte. Ref. Rpt., stamped Passed, ROA #054, p. 1 ll. 1-2). By
amending the bill, the bills sponsor and the General Assembly narrowed the
statutes reach and made the list of inherent risks exclusive, rather than expansive.
The dissenting Justices in Graven recognized this significant amendment and
concluded the intentional substitution of including for including but not
limited to showed the SSA does not contain any language indicating that the
statute contemplates inherent risks other than those specifically identified.
Graven, 909 P.2d at 524. Clearly, the General Assembly may abrogate some
common law claims related to a specific subject while allowing other common
law principles related to the same subject to remain. Lombard v. Colorado
Outdoor Educ. Center Inc., 187 P.3d 565, 574-75 (Colo. 2008). (Premises
liability statute abrogated common law claims and defenses but did not abrogate
the common law principle that a violation of a statute is evidence of negligence).
Additionally, testimony from other witnesses who favored the bill,
including Colorado Ski Country USAs spokesperson, demonstrates that the
General Assembly did not intend for the language in this definition to be
expansive, and intended it to include only things a skier would reasonably foresee
and avoid. For instance, Colorado Ski Country USAs spokesman testified the bill
defined those dangers which any skier might reasonably expect to encounter as
32

being everything from ice, crust, other snow conditions and other items that
are enumerated in that list. (ROA #55, tr. pp. 11, ll. 11 to 12, ll. 9). The
spokesperson further stated: I suggest to you that every single one of these items
is something that those of you who ski, and for that matter those of you who
dont, if you did ski might reasonably expect to encounter when going down a ski
slope. (ROA #55, tr. p. 12, ll. 914). He then went on to give examples from the
list and how a skier could avoid everything in the definition when skiing in
control. (ROA #55, tr. p. 1213).
Other witnesses who testified in favor of the bill reiterated that the list of
inherent dangers included things a skier could avoid if the skier skied in control.
(ROA #55, tr. pp. 1619 (describing the ability to see obstacles in plain sight)).
One explained, A skier would normally expect to find and should expect to
encounter certain conditions when he skis, and those are set forth in this
section. (ROA #55, tr. p. 21, ll. 822)(emphasis added). These statements show
an intention not to make avalanches an inherent risk of skiing, since they are not
an event or condition which one would reasonably expect to encounter on an open
ski trail. In contrast, the inherent dangers listed in 33-44-103(3.5) are open and
obvious surface conditions that a skier commonly and reasonably might expect to
encounter on an in-bounds open ski trail, or reasonably expected subsurface
33

conditions like a stump or rock hidden beneath the snow.

Whether skiing in control or not, a skier on an in-bounds trail does not
expect to encounter an avalanche. We know this because an inherent risk of
skiing, including arguendo, an avalanche would mean that beginning skiers and
children would require specialized avalanche survival training and equipment.
Parents would have to pack shovels on their backs; equip themselves and their
children with avalanche beacons in order to protect themselves. These safety
measures, while expected practice in the backcountry, were never intended at ski
areas by the General Assembly.
4. The 2004 amendment nine years after Graven did not
dramatically expand the definition.
Following Graven, the General Assembly removed the word integral
from 33-44-103(3.5). Ch. 341, 1 2004 COLO. SESS. LAWS 1383. That 2004
amendment changed the language of those dangers or conditions which are an
integral part of the sport of skiing to those dangers or conditions which are a
part of the sport of skiing. Even without the word integral, the SSA still
requires the risk to fall within its definition of the inherent dangers and risks of
skiing. But this amendment did not change the fact that the Court does not
generally expand an enumerated list to include items that are not of the same
nature of the things the General Assembly listed. Preston, 35 P.3d at 438-441;
34

Exotic Coins, Inc., 699 P.2d at 944; Bedford, 78 P.2d at 376; Lunsford, 908 P.2d
at 84; Vigil, 103 P.3d at 327; LaDuke, 785 P.2d at 610. Removal of integral
also did not overcome the requirement that the Court must narrowly construe a
list of factors abrogating a common law right. See Vigil, Bayer, Preston, Hawes,
et al.
The removal of the term integral in 2004 was case-specific and directed
to the Courts conclusion in Graven, which held that immunity for injuries
resulting from the inherent dangers and risks of skiing applied only to injuries
which occurred on skiable portions of a trial and not portions of the ski area that
were not within skiable terrain. Graven, 909 at 519. By removing integral from
the definition, the General Assembly intended to make clear that injuries resulting
from the listed inherent risks and occurring on terrain adjacent to skiable terrain
was included within the inherent risk definition.
The Court must presume the General Assembly was familiar with this
Courts previous interpretation and the common law when it amended the section
in 2004. Cooper, 973 P.2d at 1239. Here, in the pertinent portion of the 2004
amendment, the General Assembly did not clearly rewrite subsection (3.5)s
definition of the inherent dangers and risks of skiing after Graven. Instead, it
struck the word integral, added cliffs and extreme terrain to the list of surface
35

or subsurface conditions; and added freestyle terrain and jumps to the list of
manmade variations of steepness and terrain. Ch. 341, 1 2004 COLO. SESS. LAWS
1383. It appears the General Assembly believed it necessary to add the specific
terms cliffs and extreme terrain and freestyle terrain and jumps to the
definition, rather than assume the then existing conditions such as variations in
steepness or terrain whether natural or as a result of slope design, snowmaking or
grooming, already included those conditions. However, under the court of
appeals majority interpretation, the terms cliffs and extreme terrain and
freestyle terrain and jumps would have already been included within the
definition as variations in steepness or terrain whether natural or as a result of
slope design, snowmaking or grooming. Therefore, the additional terms added in
2004 would seem unnecessary and superfluous. Yet no words within a statute are
to be considered redundant or superfluous. Lombard, 187 P.3d at 571.
The General Assembly did not expressly state an intention to overrule the
Courts precedent by the 2004 Amendment as it often does. See, e.g., 13-21-115,
C.R.S. (clearly stating intent to legislatively overrule Gallegos v. Phipps, 779
P.2d 856 (Colo. 1989)); 13-22-107 (directly overruling Cooper v. Aspen Skiing
Co., 48 P.3d 1229 (Colo. 2002)); and see, Loveland v. St. Vrain Valley Sch. Dist.
Re-1j, 2012 COA 112 34 (General Assembly enacted the Colorado
36

Governmental Immunity Act, 24-10-101 et seq., C.R.S., to supersede decisions

in Evans v. Board of County Commrs, 482 P.2d 968 (Colo. 1971), Flournoy v.
School Dist. No. 1, 482 P.2d 966 (Colo. 1971), and Proffitt v. State, 482 P.2d 965
(Colo. 1971)).
5. The General Assemblys choice to vary its use of terms
indicates its intention that the word including at issue here
had a narrower meaning than its use of broader variations
throughout the SSA.
Additionally, the General Assembly does not use language idly and courts
presume the use of different terms signals a legislative intent to afford those terms
different meanings. Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010
(Colo. 2008); Carlson v. Ferris, 85 P.3d 504, 509 (Colo. 2003). While a term may
have a number of different meanings in the abstract, or standing alone, its
intended meaning in a specific context will often become apparent from the
context, or the greater statutory scheme, in which it is used. People v. White, 242
P.3d 1121, 1124 (Colo. 2010).
Here, the General Assembly chose to use the word including then
eliminated but not limited to in its definition of inherent dangers and risks of
skiing. It used the expansive variation including but not limited to later in the
same definition when referring to variations in steepness or terrain. 33-44103(3.5). Thus, the continued use of only the single word including in this
37

section, which abrogates the common law by granting a narrow immunity from
suit to area operators, indicates the General Assemblys intent to have courts
narrowly construe the definition of the inherent dangers and risks of skiing.
6. Other provisions of the SSA also show that avalanche is not
an inherent risk of skiing.
Ski area operators are required to advise the public of the listed inherent
danger and risks of skiing contained in 33-44-103(3.5) on warning signs and ski
lift tickets. 33-44-107(8)(b) and (c), C.R.S. Nothing in either 33-44-107(8)(c)
or 33-44-103(3.5) informs the public that there are other dangers and risks, like
an avalanche, of which the public should be aware.
7. Other States SSAs support Ms. Fleurys reading of the
Colorado SSA.
Other states which statutorily define the inherent risks and dangers of
skiing and typically have avalanche danger, use language similar to that found in
33-44-103(3.5).7 Only Montanas statute includes avalanche within its
definition of the inherent dangers and risks of skiing; however, even under
Montanas statute, an avalanche that occurs on an open, designated trail of a ski

See ALASKA STAT. 05.45.200(3); IDAHO CODE ANN. 6-1106; ME. REV. STAT.
ANN. 15217(1)(A); MICH. COMP. LAWS, 408.342(2); MONT. CODE ANN. 23-2702(2); N.M. STAT. 24-15-10; OR. REV. STAT. 30.970(1); and UTAH CODE
ANN. 78B-4-402(1).
38

area is not an inherent danger and risk of skiing. MONT. CODE ANN. 22-2702(2)(c).
VII. CONCLUSION
The General Assemblys list of inherent risks puts everyone, skiers and ski
area operators alike, on notice of what those risks are (and are not), until it adds
another risk to the list, as it did in 2004. Skiers should not have to research the
newest cases to decide what risks they are facing while on the slopes, particularly
when they are supposed to be able to rely on the disclosures required on warning
signs and ski lift tickets. Allowing courts to create new inherent risks on an ad
hoc basis and then use it to deprive plaintiffs of a claim otherwise available to
them, or at least not barred by the inherent risk statute, is wrong.
DATED March 9, 2015.
Burg Simpson Eldredge Hersh & Jardine, P.C.
By: James G. Heckbert
James G. Heckbert, Atty. No. 37230
Diane Vaksdal Smith, Atty. No. 14340
Nelson P. Boyle, Atty. No. 39525
Attorneys for Petitioner

39

VIII. LIST OF APPENDICES

1.

1979 Session Laws

2.

1990Session Laws

3.

2004 Session Laws

4.

Meyer, John, Lovelands Over the Rainbow was cleared by human-set

avalanche, Denver Post, October 16, 2012.

40

CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of this OPENING
BRIEF was timely filed and served by ICCES, on March 9, 2015, upon:
Peter W. Reitz
Kimberly A. Viergever
Brian A. Birenbach
RIETZ LAW FIRM, LLC
Attorneys for Respondent IntraWest
s/ Pamela J. Grove, legal assistant

41

SUPREME COURT,STATE OF COLORADO

2 East 14th Avenue
Denver, CO 80203
Certiorari to the Court of Appeals, 2014 COA 13,
Hon. Fox, J., Navarro, J., concurs, and Jones, J.,
dissents, 13CA0517
Grand County District Court, Hon. Mary C. Hoak,
Judge, 12CV132
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
Corp.
Attorneysfor Petitioner:
James G. Heckbert, Atty. No. 37230
Diane Vaksdal Smith, Atty. No. 14340
Nelson P. Boyle, Atty. No. 39525
Burg Simpson Eldredge Hersh & Jardine,PC
40 Inverness Drive East
Englewood, CO 80112
Tel:(303)792-5595 I Fax:(303)708-0527
[email protected]
[email protected]
[email protected]
Appendix 1

A COURT USE ONLY A

Sup. Ct. No.: 2014 SC 224

)OR RECREATION

Ch. 322

Ch. 323 WILDLIFE AND PARKS AND OTUDOOR RECREATION

1237

CHAPTER 323

)OOR RECREATION

WILDLIFE AND PARKS AND OUTDOOR I1ECREATION

SKI SAFETY AND LIABILITY

'Oilier,

Howe, Powers,
Hamlin, Hayes, Hinman,

Anderson,
SENATE BILL. NO. 203. BY SENATORS Bishop, Barnhill, H. Fowler, L. Fowler, Hatcher, Soash, Allshouse,
McCormick, and Noble; also REPRESENTATIVES Theos, Davoren, Fine, Herzberger, Hinman, Hudson, Lillpop, Marks,
DeNier, Jones, and Winkler.

AN ACT
CONCERNING SKIING, AND ESTABLISHING RESPONSIBILITIES AND LIABILITIES
OF SKIERS AND SKI AREA OPERATORS.
wado:

Be it enacted by the General Assembly of the State of Colorado:

Statutes 1973, as
rado Revised
amended BY THE
)2 is further
ead:
Nonresident five-day TWO(s) NONRESIDENT
TEN-DAY
ID
five-day TWOone nonresidentNONRESIDENT
:VERY SUCH
EFFECT
[CENSE IS TO TAKE
PROCURED
THE DATE IT IS SPECIFIED
FISHING SEASON
ibsection (2) of this

section shall be

January 1, 1980.
I take effect
finds, determines,
xssembly herebypreservation
of the
the immediate

tang statutes; dashes

lot part of act.

indicate
through words

Section 1. Title 33, Colorado Revised Statutes 1973, as amended, is

amended BY THE ADDITION OF A NEW ARTICLE to read:
ARTICLE 44
Ski Safety and Liability
33-44-101. Short title. This article shall be known and may be cited as
the "Ski Safety Act of 1979"
33-44-102. Legislative declaration. The general assembly hereby finds and
declares that it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using
them. Realizing the dangers that inhere in the sport of skiing, regardless of
any and all reasonable safety measures which can be employed, the purpose
of this article is to supplement the passenger tramway safety provisions of
part 7 of article 5 of title 25, C.R.S. 1973; to further define the legal responsibilities of ski area operators and their agents and employees; to define the
responsibilities of skiers using such ski areas; and to define the rights and
liabilities existing between the skier and the ski area operator and between
skiers.
33-44-103. Definitions. As used in this article, unless the context otherwise
requires:
(1) "Base area lift" means any passenger tramway which skiers ordinarily
use without first using some other passenger tramway.
(2) "Competitor" means a skier actually engaged in competition or in
practice therefor with the permission of the ski area operator on any slope
Capital letters indicate new material added to existing statutes; dashes through words indicate
deletionsfrom existing statutes and such material not part ofact.

1238 WILDLIFE AND PARKS AND OUTDOOR RECREATION Ch. 323

or trail or portion thereof designated by the ski area operator for the purpose
of competition.
(3) "Conditions of ordinary visibility" means daylight and, where applicable, nighttime in nonprecipitating weather.
(4) "Passenger" means any person who is lawfully using any passenger
tramway.
(5) "Passenger tramway" means a device as defined in section 25-5-702
(4), C.R.S. 1973.
(6) "Ski area" means all ski slopes or trails and other places under the
control of a ski area operator and administered as a single enterprise within
this state.
(7) "Ski area operator" means "operator" as defined in section 25-5-702
(3), C.R.S. 1973, and any person, partnership, corporation, or other commercial entity having operational responsibility for any ski areas, including an
agency of this state or a political subdivision thereof.
(8) "Skier" means any person utilizing a ski area for the purpose of skiing
or for the purpose of sliding downhill on snow or ice on skis, a toboggan,
a sled, a tube, a ski-bob, or any other device.
(9) "Ski slopes or trails" means those areas designated by the ski area
operator to be used by skiers for any of the purposes enumerated in subsection (8) of this section. Such designation shall be set forth on trail maps,.
if provided, and designated by signs indicating to the skiing public the intent;
that such areas be used by skiers for the purpose of skiing. Nothing in this
subsection (9) or in subsection (8) of this section, however, shall imply that
ski slopes or trails may not be restricted for use by persons using skis only
or for use by persons using any other device described in subsection (8) of
this section.
33-44-104. Negligence - civil actions. (1) A violation of any requiremed
of this article shall, to the extent such violation causes injury to any perso
or damage to property, constitute negligence on the part of the person viola
ing such requirement.
(2) A violation by a ski area operator of any requirement of this artie
or any rule or regulation promulgated by the passenger tramway safety board
pursuant to section 25-5-710 (1) (a), C.R.S. 1973, shall, to the extent sitC:
violation causes injury to any person or damage to property, constitute ne
gence on the part of such operator.
(3) Notwithstanding the provisions of section 24-4-103 (5), C.R.S. 1973
all rules adopted or amended by the passenger tramway safety board on;.,
after July 1, 1979, shall expire June 1 of the year following their adopt
unless extended by the general assembly acting by bill. The general assemii
in its discretion, may postpone such expiration as often as necessary
no such postponement shall exceed two years. All rules and amendmFis
thereto shall be submitted pursuant to section 24-4-103(8)(d), C.R.S. 1973,

111177.=

Ch. 323

Ch. 323 WILDLIFE AND PARKS AND OUTDOOR RECREATION 1239

area operator for the purpose

33-44-105. Duties of passengers. (1) No passenger shall board a passenger

tramway if he does not have sufficient physical dexterity, ability, and knowledge to negotiate or use such facility safely or until such passenger has asked
for and received information sufficient to enable him to use the equipment
safely. A passenger is required to follow any written or verbal instructions
that are given to him regarding the use of the passenger tramway.
(2) No passenger shall:

)OR RECREATION

ns daylight and, where applica; lawfully using any passenger

as defined in section 25-5-702
ails and other places under the
as a single enterprise within
'' as defined in section 25-5-702
, corporation, or other commerfor any ski areas, including an
hereof.
,ki area for the purpose of skiing
ow or ice on skis, a toboggan,
reas designated by the ski area
purposes enumerated in subsechall be set forth on trail maps,
ng to the skiing public the intent
trpose of skiing. Nothing in this
ction, however, shall imply that
r use by persons using skis only
;:z described in subsection (8) of
A violation of any requirement
ition causes injury to any person
on the part of the person violatA any requirement of this article
passenger tramway safety board
;. 1973, shall, to the extent such
nage to property, constitute negliiection 24-4-103 (5), C.R.S. 1973,
:nger tramway safety board on or
the year following their adoption
ting by bill. The general assembly,
ration as often as necessary, but
years. All rules and amendments
Dri 24-4-103 (8)(d), C.R.S. 1973.

(a) Embark upon or disembark from a passenger tramway except at a designated area except in the event of a stoppage of the passenger tramway(and
then only under the supervision of the operator) or unless reasonably necessary in the event of an emergency to prevent injury to the passenger or
others;
(b) Throw or expel any object from any passenger tramway while riding
on such device, except as permitted by the operator;
(c) Act, while riding on a passenger tramway, in any manner that may
interfere with proper or safe operation of such passenger tramway;
(d) Engage in any type of conduct that may contribute to or cause injury
to any person;
(e) Place in an uphill track of a J-bar, T-bar, platter pull, rope tow, or
any other surface lift any object that could cause another skier to fall;
(f) Embark upon a passenger tramway marked as closed;
(g) Disobey any instructions posted in accordance with this article or any
verbal instructions by the ski area operator regarding the proper or safe use
of a passenger tramway unless such verbal instructions are contrary to this
article or the rules promulgated under it, or contrary to posted instructions.
33-44-106. Duties of operators - signs. (1) Each ski area operator shall
maintain a sign system with concise, simple, and pertinent information for
the protection and instruction of passengers. Signs shall be prominently
placed on each passenger tramway readable in conditions of ordinary visibility and, where applicable, adequately lighted for nighttime passengers. Signs
shall be posted as follows:
(a) At or near the loading point of each passenger tramway, regardless
of the type, advising that any person not familiar with the operation of the
device shall ask the operator of the device for assistance and instruction;
(b) At the interior of each two-car and multicar passenger tramway, showing:
(I) The maximum capacity in pounds of the car and the maximum number
of passengers allowed;
(II) Instructions for procedures in emergencies.
(c) In a conspicuous place at each loading area of two-car and multicar
passenger tramways, stating the maximum capacity in pounds of the car and
the maximum number of passengers allowed;

1240 WILDLIFE AND PARKS AND OUTDOOR RECREATION Ch. 323

(d) At all chair lifts, stating the following:
(I) "Prepare to Unload", which shall be located not less than fifty feet
ahead of the unloading area;
(II) "Keep Ski Tips Up", which shall be located ahead of any point where
the skis may come in contact with a platform or the snow surface;
(III) "Unload Here", which shall be located at the point designated for
unloading;
(IV) "Safety Gate", which shall be located where applicable;
(V) "Remove Pole Straps from Wrists", which shall be located prominently at each loading area;
(VI) "Check for Loose Clothing and Equipment", which shall be located
before the "Prepare to Unload" sign.
(e) At all J-bars, T-bars, platter pulls, rope tows, and any other surface
lift, stating the following:
(I) "Remove Pole Straps from Wrists", which shall be placed at or near
the loading area;
(II) "Stay in Tracks", 'Unload Here" and "Safety Gate", which shall
be located where applicable;
(III) "Prepare to Unload", which shall be located not less than fifty feet
ahead of each unloading area.
(f) Near the boarding area of all J-bars, T-bars, platter pulls, rope tows,
and any other surface lift, advising passengers to check to be certain that
clothing, scarves, and hair will not become entangled with the lift;

(g) At or near the boarding area of all lifts, regarding the requirements
of section 33-44-109(6).
(2) Other signs not specified by subsection (1) of this section may be
posted at the discretion of the ski area operator.
(3) The ski area operator, before ot/ening the passenger tramway to the
public each day, shall inspect such passenger tramway for the presence and
visibility of the signs required by subsection (1)of this section.
(4) The extent of the responsibility of the ski area operator under this
section shall be to post and maintain such signs as are required by subsection
(I)of this section in such condition that they may be viewed during conditions
of ordinary visibility. Evidence that signs required by subsection (1) of this
section were present, visible, and readable where required at the beginning
of the passenger tramway operation on any given day raises a presumption
that all passengers using said devices have seen and understood said signs.
33-44-107. Duties of ski area operators -.signs required for skiers' information. (1) Each ski area operator shall maintain a sign and marking system
as set forth in this section in addition to that required by section 33-44-106.

OR RECREATION

Ch. 323

)cated not less than fifty feet

ated ahead of any point where
the snow surface;
ed at the point designated for
where applicable;
which shall be located promi)ment", which shall be located
Je tows, and any other surface
thich shall be placed at or near
nd "Safety Gate", which shall
located not less than fifty feet
[-bars, platter pulls, rope tows,
ers to check to be certain that
tangled with the lift;
Sts, regarding the requirements
don (1) of this section may be
)r.
g the passenger tramway to the
r tramway for the presence and
1) of this section.
:he ski area operator under this
gns as are required by subsection
may be viewed during conditions
aquired by subsection (l) of this
where required at the beginning
given day raises a presumption
en and understood said signs.
iigns required for skiers' informa.
itain a sign and marking system
at required by section 33-44-106.

Ch. 323 WILDLIFE AND PARKS AND OUTDOOR RECREATION

1241

All signs required by this section shall be maintained so as to be readable

and recognizable under conditions of ordinary visibility.
(2) A sign shall be placed in such a position as to be recognizable as a
sign to skiers proceeding to the uphill loading point of each base area lift
depicting and explaining signs and symbols which the skier may encounter
at the ski area as follows:
(a) The ski area's least difficult trails and slopes, designated by a green
circle and the word "easiest";
(b) The ski area's most difficult trails and slopes, designated by a black
diamond and the words "most difficult";
(c) The ski area's trails and slopes which have a degree of difficulty that
falls between the green circle and the black diamond designation, designated
by a blue square and the words "more difficult";
(d) Danger areas, designated by a red exclamation point inside a yellow
triangle with a red band around the triangle and the word "Danger" printed
beneath the emblem;
(e) Closed trails or slopes, designated by an octagonal-shaped sign with
a red border around a white interior containing a black figure in the shape
of a skier with a black band running diagonally across the sign from the upper
right-hand side to the lower left-hand side and with the word "Closed"
printed beneath the emblem.
(3) If applicable, a sign shall be placed at or near the loading point of
each passenger tramway, as follows:
"WARNING: This lift services (most difficult) or (most difficult and more
difficult) or (more difficult) slopes only,"
(4) If a particular trail or slope or portion of a trail or slope is closed
to the public by a ski area operator, such operator shall place a sign notifying
the public of that fact at each identified entrance of each portion of the trail
or slope involved. Alternatively, such a trail or slope or portion thereof may
be closed with ropes or fences.
(5) The ski area operator shall place a sign at or near the beginning of
each trail or slope, which sign shall contain the appropriate symbol of the
relative degree of difficulty of that particular trail or slope as set forth by
subsection (2) of this section. This requirement shall not apply to a slope
or trail designated "easiest" which tq, a skier is substantially visible in its
entirety under conditions of ordinary visibility prior to his beginning to ski
the same.
(6) The ski area operator shall mark its ski area boundaries in a fashion
readily visible to skiers under conditions of ordinary visibility. Where the
owner of land adjoining a ski area closes all or part of his land and so advises
the ski area operator, such portions of the boundary shall be signed as
required by paragraph (e) of subsection (2) of this section. This requirement
shall not apply in heavily wooded areas or other nonskiable terrain.

1242 WILDLIFE AND PARKS AND OUTDOOR RECREATION Ch. 323

(7) The ski area operator shall mark hydrants, water pipes, and all other
man-made structures on slopes and trails which are not readily visible to
skiers under conditions of ordinary visibility from a distance of at least one
hundred feet and shall cover such obstructions with a shock-absorbent material that will substantially lessen injuries. Any type of marker shall be sufficient, including but not limited to wooden poles, flags, or signs, if the marker
is visible from a distance of one hundred feet and if the marker itself does
not constitute a serious hazard to skiers.
33-44-108. Ski area operators - additional duties.(1) Any motorized snowgrooming vehicle shall be equipped with a light visible at any time the vehicle
is moving on or in the vicinity of a ski slope or trail.
(2) Whenever maintenance equipment is being employed to maintain or
groom any ski slope or trail while.such ski slope or trail is open to the public,
the ski area operator shall place or cause to be placed a conspicuous notice
to that effect at or near the top of that ski slope or trail.
(3) All snowmobiles operated on the ski slopes or trails of a ski area shall
be equipped with at least the following: One lighted headlamp, one lighted
red tail lamp, a brake system maintained in operable condition, and a fluorescent flag at least forty square inches mounted at least six feet above the
bottom of the tracks.
(4) The ski area operator shall have no duty arising out of its status as
a ski area operator to any skier skiing beyond the area boundaries marked
as required by section 33-44-107(6).
(5) The ski area operator, upon finding a person skiing in a careless and
reckless manner, may revoke that person's skiing privileges.
33-44-109. Duties of skiers - penalties.(1) Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope
or trail and to ski within the limits of such ability.
(2) Each skier has the duty to maintain control of his speed and course
at all times when skiing and to maintain a proper lookout so as to be able
to avoid other skiers and objects. However, the primary duty shall be on
the person skiing downhill to avoid collision with any person or objects below
him. It is presumed, unless shown to the contrary by a preponderance of
the evidence, that the responsibility for collisions by skiers with any person,
natural object, or man-made structttre marked in accordance with section
33-44-107 (7) is solely that of the skier or skiers involved and not that of
the ski area operator.
(3) No skier shall ski on a ski slope or trail that has been posted a
"Closed" pursuant to section 33-44-107(2)(e)and (4).
(4) Each skier shall stay clear of snow-grooming equipment, all vehicles
lift towers, signs, and any other equipment on the ski slopes and trails.
(5) Each skier has the duty to heed all posted information and other warn
ings and to refrain from acting in a manner which may cause or contribut
to the injury of the skier or others. Each skier shall be presumed to have

Ch. 323

Ch. 323 WILDLIFE AND PARKS AND OUTDOOR RECREATION 1243

its, water pipes, and all other

ich are not readily visible to
om a distance of at least one
with a shock-absorbent matetype of marker shall be suffi;, flags, or signs, if the marker
and if the marker itself does

seen and understood all information posted in accordance with this article
near base area lifts, on the passenger tramways, and on such ski slopes or
trails as he is skiing. Under conditions of decreased visibility, the duty is
on the skier to locate and ascertain the meaning of all signs posted in accordance with sections 33-44-106 and 33-44-107.
(6) Each ski used by a skier while skiing shall be equipped with a strap
or other device capable of stopping the ski should the ski become unattached
from the skier. This requirement shall not apply to cross country skis.
(7) No skier shall cross the uphill track of a J-bar, T-bar, platter pull,
or rope tow except at locations designated by the operator; nor shall a skier
place any object in such an uphill track.

OR RECREATION

Mies. (1) Any motorized snowvisible at any time the vehicle

:rail.
,eing employed to maintain or
)e or trail is open to the public,
,e placed a conspicuous notice
or trail.
)pes or trails of a ski area shall
lighted headlamp, one lighted
erable condition, and a fluoresed at least six feet above the
uty arising out of its status as
id the area boundaries marked
person skiing in a careless and
ing privileges.
iach skier solely has the responto negotiate any ski slope
ity.
control of his speed and course
woper lookout so as to be able
the primary duty shall be on
vith any person or objects below
ontrary by a preponderance of
sions by skiers with any person,
ked in accordance with section
skiers involved and not that of
r trail that has been posted as
)and (4).
rooming equipment, all vehicles,
the ski slopes and trails.
fisted information and other warnr which may cause or contribute
skier shall be presumed to have

(8) Before beginning to ski from a stationary position or before entering

a ski slope or trail from the side, the skier shall have the duty of avoiding
moving skiers already on the ski slope or trail.
(9) No person shall move uphill on any passenger tramway or use any
ski slope or trail while such person's ability to do so is impaired by the consumption of alcohol or by the use of any narcotic or other drug or while
such person is under the influence of alcohol or any narcotic or other drug.
(10) No skier involved in a collision with another skier or person in which
an injury results shall leave the vicinity of the collision before giving his name
and current address to an employee of the ski area operator or a member
of the voluntary ski patrol, except for the purpose of securing aid for a person
injured in the collision; in which event the person so leaving the scene of
the collision shall give his name and current address as required by this subsection (10) after securing such aid.
(11) No person shall knowingly enter upon public or private lands from
an adjoining ski area when such land has been closed by its owner and so
posted by the owner or by the ski area operator pursuant to section 33-44-107
(6).
(12) Any person who violates any of the provisions of subsection (3), (9),
(10), or (11) of this section is guilty of a class 2 petty offense and, upon
conviction thereof, shall be punished by a fine of not more than three hundred dollars.
33-44.110. Competition. (1) The ski area operator shall, prior to the beginning of a competition, allow each competitor a reasonable visual inspection
of the course or area where the competition is to be held.
(2) The competitor shall be held to assume the risk of all course conditions including, but not limited to, weather and snow conditions, course construction or layout, and obstacles which a visual inspection should have
revealed. No liability shall attach to a ski area operator for injury or death
of any competitor proximately caused by such assumed risk.
33-44-111. Statute of limitation. A11 actions against any ski area operator
or its employees brought to recover damages for injury to person or property
caused by the maintenance, supervision, or operation of a passenger tramway

1244 WILDLIFE AND PARKS AND OUTDOOR RECREATION Ch. 323

or a ski area shall be brought within three years after the claim for relief
arises and not thereafter.
Section 2. Effective date. This act shall take effect July I, 1979.
Section 3. Safety clause. The general assembly hereby finds, determines,
and declares that this act is necessary for the immediate preservation of the
public peace, health, and safety.

SUPREME COURT,STATE OF COLORADO

2 East 14th Avenue
Denver, CO 80203
Certiorari to the Court of Appeals, 2014 COA 13,
Hon. Fox, J., Navarro, J., concurs, and Jones, J.,
dissents, 13CA0517
Grand County District Court, Hon. Mary C. Hoak,
Judge, 12CV132
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
Corp.
Attorneysfor Petitioner:
James G. Heckbert, Atty. No. 37230
Diane Vaksdal Smith, Atty. No. 14340
Nelson P. Boyle, Atty. No. 39525
Burg Simpson Eldredge Hersh & Jardine,PC
40 Inverness Drive East
Englewood, CO 80112
Tel:(303)792-5595 I Fax:(303)708-0527
[email protected]
[email protected]
[email protected]
Appendix 2

A COURT USE ONLY

Sup. Ct. No.: 2014 SC 224

1540

Wildlife and Parks and Outdoor Recreation

Ch. 256

CHAPTER 256

WILDLIFE AND PARKS AND OUTDOOR RECREATION

PARKS AND OUTDOOR RECREATION SKI SAFETY AND LIABILITY

SENATE BILL 90-80. BY SENATORS Bishop, Wattenberg, DeNier,Hopper,Schroeder, McCormick,and Winkler;

also REPRESENTATIVES McInnis, Owen, Schauer, D. Williams, Anderson, Bledsoe, Ch!outlet, Enlz, Fish, Foster, Gillis,
Jerke, Martin, Masson. Rattcrrec,Shoemaker, Ulvang,and S. Williams.

CONCERNING LIMITATIONS ON LIABILITY IN CONNECTION WITH THE SPORT OF

SKIING.
Be it enacted by the General Assembly ofthe State ofColorado:

Section 1. Legislative declaration. The general assembly hereby finds and

declares that the sport of skiing is practiced by a large number of residents
of Colorado and attracts a large number of nonresidents, significantly contributing to the economy of this state. The general assembly further finds
that, despite the passage of the "Ski Safety Act of 1979", ski area operators
of this state continue to be subjected to claims and litigation involving accidents which occur during the course of the sport ofsnow skiing, which claims
and litigation and threat thereof unnecessarily increase Colorado ski area
operators' costs. The general assembly further finds that such increased costs
are due, in part, to confusion under the "Ski Safety Act of 1979" as to
whether a skier accepts and assumes the dangers and risks inherent in the
sport of skiing. It is the purpose of this act, therefore, to clarify the law
in relation to skiing injuries and the dangers and risks inherent in that sport,
to establish as a matter of law that certain dangers and risks are inherent
in that sport, and to provide that, as a matter of public policy, no person
engaged in that sport shall recover from a ski area operator for injuries resulting from those inherent dangers and risks.
Section 2. 33-44-103 (8), Colorado Revised Statutes, 1984 Repl. Vol.,
is amended, and the said 33-44-103 is further amended BY THE ADDITION
OF A NEW SUBSECTION,to read:
33-44-103. Definitions.(8) "Skier" means any person utitizing USING
a ski area for the purpose of skiing; eF for the purpose of sliding downhill
on snow or ice on skis, a toboggan, a sled, a tube, a ski-bob, A
SNOWBOARD,or any other device; OR FOR THE PURPOSE OF USING
Capital letters indicate new material added to existing statutes; dashes through words indicate
deletionsfrom existing statutes and such material not part ofact.

;ecreation

Ch. 256

Ch. 256

Wildlife and Parks and Outdoor Recreation

1541

ANY OF THE FACILITIES OF THE SKI AREA,INCLUDING BUT NOT

LIMITED TO SKI SLOPES AND TRAILS.

)OR RECREATION
FETY AND LIABILITY

eder, McCormick,and Winkler:

ledsoe, Chloubcr, Entz, Fish, Foster, Gillis,

ECTION WITH THE SPORT OF

(10) "Inherent dangers and risks of skiing" means those dangers or conditions which are an integral 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, and trees, or other natural
objects, and collisions with such natural objects; impact with lift towers,
signs, posts, fences or enclosures, hydrants, water pipes, 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 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.
Section 3. 33-44-107 (2) (d) and (7), Colorado Revised Statutes, 1984
Repl. Vol., are amended, and the said 33-44-107 is further amended BY
THE ADDITION OF A NEW SUBSECTION,to read:

1 assembly hereby finds and

large number of residents
residents, significantly coneral assembly further finds
)f 1979", ski area operators
nd litigation involving acci)f snow skiing, which claims
increase Colorado ski area
ids that such increased costs
Safety Act of 1979" as to
rs and risks inherent in the
herefore, to clarify the law
risks inherent in that sport,
igers and risks are inherent
of public policy, no person
i operator for injuries result1 Statutes, 1984 Repl. Vol.,
ended BY THE ADDITION
Iny person utilizing USING
purpose of sliding downhill
ed, a tube, a ski-bob, A
FHE PURPOSE OF USING
utes; dashes through words indicate
ict

33-44-107. Duties of ski area operators - signs and notices required for
skiers' information.(2) (d) Danger areas, designated by a red exclamation
point inside a yellow triangle with a red band around the triangle and the
word "Danger" printed beneath the emblem. DANGER AREAS DO NOT
INCLUDE AREAS PRESENTING INHERENT DANGERS AND RISKS
OF SKIING,
(7) The ski area operator shall mark hydrants, water pipes, and all other
man-made structures on slopes and trails which are not readily visible to
skiers under conditions of ordinary visibility from a distance of at least one
hundred feet and shall ADEQUATELY AND APPROPRIATELY cover such
obstructions with a shock-absorbent material that will lessen injuries. Any
type of marker shall be sufficient, including but not limited to wooden poles,
flags, or signs, if the marker is visible from a distance of one hundred feet
and if the marker itself does not constitute a serious hazard to skiers. VARIATIONS IN STEEPNESS OR 'TERRAIN, WHETHER NATURAL OR AS
A RESULT OF SLOPE DESIGN OR SNOWMAKING OR GROOMING
OPERATIONS, INCLUDING BUT NOT LIMITED TO ROADS AND
CATWALKS OR OTHER TERRAIN MODIFICATIONS, ARE NOT MANMADE STRUCTURES,AS THAT TERM IS USED IN THIS ARTICLE.
(8) (a) Each ski area operator shall post and maintain signs which contain
the warning notice specified in paragraph (c) of this subsection (8). Such
signs shall be placed in a clearly visible location at the ski area where the
lift tickets and ski school lessons are sold and in such a position to be recognizable as a sign to skiers proceeding to the uphill loading point of each
base area lift. Each sign shall be no smaller than three feet by three feet.
Each sign shall be white with black and red letters as specified in this paragraph (a). The words "WARNING" shall appear on the sign in red letters.

1542

Wildlife and Parks and Outdoor Recreation

Ch.256

The warning notice specified in paragraph (c) of this subsection (8) shall
appear on the sign in black letters, with each letter to be a minimum of
one inch in height.
(b) Every ski lift ticket sold or made available for sale to skiers by any
ski area operator shall contain in clearly readable print the warning notice
specified in paragraph(c)ofthis subsection (8).
(c) The signs described in paragraph (a) of this subsection (8) and the
lift tickets described in paragraph (b)of this subsection (8) shall contain the
following warning notice:
WARNING
.
Under Colorado law, a skier assumes the risk of any
injury to person or property resulting from any of
the inherent dangers and risks of skiing and may
not recover from any ski area operator for any injury
resulting from any of the inherent dangers and risks
of skiing, including: Changing 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.
Section 4. 33-44-108 (5), Colorado Revised Statutes, 1984 Repl. Vol.,
is amended to read:
33-44-108. Ski area operators - additional duties.(5) The ski area operator, upon finding a person skiing in a careless and reckless manner, may
revoke that person's skiing privileges. THIS SUBSECTION(5)SHALL NOT
BE CONSTRUED TO CREATE AN AFFIRMATIVE DUTY ON THE
PART OF THE SKI AREA OPERATOR TO PROTECT SKIERS FROM
THEIR OWN OR FROM ANOTHER SKIER'S CARELESSNESS OR
RECKLESSNESS.
Section 5. 33-44-109 (1)and (2), Colorado Revised Statutes, 1984 Repl.
Vol., are amended to read:
33-44-109. Duties of skiers - penalties. (1) Each skier solely has the
responsibility for knowing the range of his own ability to negotiate any ski
slope or trail and to ski within the limits of such ability. EACH SKIER
EXPRESSLY ACCEPTS AND ASSUMES THE RISK OF AND ALL
LEGAL RESPONSIBILITY FOR ANY INJURY TO PERSON OR PROPERTYRESULTING FROM ANY OF THE INHERENT DANGERS AND
RISKS OF SKIING; EXCEPT THAT A SKIER IS NOT PRECLUDED
UNDER THIS ARTICLE FROM SUING ANOTHER SKIER FOR ANY
INJURY TO PERSON OR PROPERTY RESULTING FROM SUCH
OTHER SKIER'S ACTS OR OMISSIONS. NOTWITHSTANDING ANY
PROVISION OF LAW OR STATUTE TO THE CONTRARY,THE RISK
OF A SKIER/SKIER COLLISION IS NEITHER AN INHERENT RISK
NOR A RISK ASSUMED BY A SKIER IN AN ACTION BY ONE SKIER
AGAINST ANOTHER.
(2) Each skier has the duty to maintain control of his speed and course
at all times when skiing and to maintain a proper lookout so as to be able

:nation

Ch. 256

this subsection (8) shall

er to be a minimum of
for sale to skiers by any
print the warning notice
subsection (8) and the
Lion (8) shall contain the

Ch. 256

Wildlife and Parks and Outdoor Recreation

1543

to avoid other skiers and objects. However, the primary duty shall be on
the person skiing downhill to avoid collision with any person or objects below
him. It is presumed;unless shown to the contrary by a preponderance of
the evidence, that the responsibility for collisions by skiers with any person,
natural object, er man made structure marked in accordance with section
3-3-44407 (7) is solely that of the skier or skiers involved and not tha-t of
the ski area eper-ater

e risk of any
from any of
ng and may
)r any injury
ers and risks
conditions;
; bare spots;
ural objects,
itions in terdn their own
atutes, 1984 Repl. Vol.,
.(5) The ski area operid reckless manner, may
CTION(5)SHALL NOT
TIVE DUTY ON THE
DTECT SKIERS FROM
; CARELESSNESS OR
ised Statutes, 1984 Repl.
ach skier solely has the
ility to negotiate any ski
h ability. EACH SKIER
RISK OF AND ALL
CO PERSON OR PROPRENT DANGERS AND
IS NOT PRECLUDED
HER SKIER FOR ANY
JLTING PROM SUCH
WITHSTANDING ANY
:ONTRARY, THE RISK
AN INHERENT RISK
CTION BY ONE SKIER
1 of his speed and course
lookout so as to be able

Section 6. 33-44-111, Colorado Revised Statutes, 1984 Repl. Vol., is

amended to read:
33-44-111. Statute of limitation. All actions against any ski area operator
or its employees brought to recover damages for injury to person or property
caused by the maintenance, supervision, or operation of a passenger tramway
or a ski area shall be brought within three TWO years after the claim for
relief arises and not thereafter.
Section 7. Article 44 of title 33, Colorado Revised Statutes, 1984 Repl.
Vol., is amended BY THE ADDITION OF THE FOLLOWING NEW SECTIONS to read:
33-44-112. Limitation on actions for injury resulting from inherent dangers
and risks of skiing. Notwithstanding any judicial decision or any other law
or statute to the contrary, including but not limited to sections 13-21-111
and 13-21-111.7, C.R.S., no skier may make any claim against or recover
from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.
33-44-113. Limitation of liability. The total amount of damages which
may be recovered from a ski area operator by a skier who uses a ski area
for the purpose of skiing or for the purpose of sliding downhill on snow
or ice on skis, a toboggan, a sled, a tube, a ski-bob, a snowboard, or any
other device and who is injured, excluding those associated with an injury
occurring to a passenger while riding on a passenger tramway, shall not
exceed one million dollars, present value, including any derivative claim by
any other claimant, which shall not exceed two hundred fifty thousand dollars, present value, and including any claim attributable to noneconomic loss
or injury, as defined in sections 13-21-102.5 (2) (a) and (2) (b), C.R.S.,
whether past damages,future damages, or a combination of both, which shall
not exceed two hundred fifty thousand dollars. If, upon good cause shown,
the court determines that the present value of the amount of lost past earnings and the present value of lost future earnings, or the present value of
past medical and other health care costs and the present value of the amount
of future medical and other health care costs, or both, when added to the
present value of other past damages and the present value of other future
damages, would exceed such limitation and that the application of such
limitation would be unfair, the court may award damages in excess of the
limitation equal to the present value of additional future damages, but only
for the loss of such excess future earnings, or such excess future medical
and other health care costs, or both. For purposes of this section, "present
value" has the same meaning as that set forth in section 13-64-202 (7),
C.R.S., and "past damages" has the same meaning as that set forth in section
13-64-202(6), C.R.S. The existence of the limitations and exceptions thereto
provided in this section shall not be disclosed to a jury.

1544

Wildlife and Parks and Outdoor Recreation

Ch. 256

33-44-114. Inconsistent law or statute. Insofar as any provision of law

or statute is inconsistent with the provisions of this article, this article controls.
Section 8. 13-21-108, Colorado Revised Statutes, 1987 Repl. Vol., is
amended BY THE ADDITION OF A NEW SUBSECTION to read:
13-21-108. Persons rendering emergency assistance exempt from civil
liability. (3) Any person, including a licensed physician, surgeon, or other
medical personnel, while acting as a volunteer member of a ski patrol or
ski area rescue unit, notwithstanding the fact that such person may receive
free skiing privileges or other benefits as a result of his volunteer status,
who in good faith renders emergency care or assistance without other compensation at the place of an emergency or accident shall not be liable for
any civil damages for acts or omissions in good faith.
Section 9. Severability. If any provision of this article or the application
thereof to any person or circumstances is held invalid, such invalidity shall
not affect other provisions or applications of the article which can be given
effect without the invalid provision or application, and to this end the provisions ofthis article are declared to be severable.
Section 10. Effective date - applicability. This act shall take effect July
1, 1990, and shall apply to all civil actions filed on or after said date.
Section 11. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation
ofthe public peace, health, and safety.
Approved: May 1, 1990

SUPREME COURT,STATE OF COLORADO

2 East 14th Avenue
Denver, CO 80203
Certiorari to the Court of Appeals, 2014 COA 13,
Hon. Fox, J., Navarro, J., concurs, and Jones, J.,
dissents, 13CA0517
Grand County District Court, Hon. Mary C. Hoak,
Judge, 12CV132
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
Corp.
Attorneysfor Petitioner:
James G. Heckbert, Atty. No. 37230
Diane Vaksdal Smith, Atty. No. 14340
Nelson P. Boyle, Atty. No. 39525
Burg Simpson Eldredge Hersh & Jardine,PC
40 Inverness Drive East
Englewood, CO 80112
Tel:(303)792-5595 I Fax:(303)708-0527
[email protected]
[email protected]
[email protected]
Appendix 3

A COURT USE ONLY A

Sup. Ct. No.: 2014 SC 224

1382

Natural Resources

Ch. 341

CHAPTER 341

NATURAL RESOURCES

HOUSE BILL 04-1393

BY REPRESENTATIVE(S)White, Cadman, Garcia, Merrifield, Miller, Rippy, Rose, Spradley, Berry, Brophy, Carroll, Coleman,
Crane, Frangas, Hall, Larson, Plant, Salazar, Smith, Weissmann, Wiens, and Williams S.;
also SENATOR(S)Taylor, Andrews, Chloub er, Entz, Fitz-Gerald, Isgar, Lamborn, MeElhany, Groff, Grossman, Johnson S.,
Jones, May R., and Teek.

AN ACT
CONCERNINGAMENDMENTSTOTHE COLORADO "SKISAFETY ACT0E1979"TOREFLECTEVOLUTION
IN THE SPORT OF SKIING.

Be it enacted by the General Assembly ofthe State of Colorado:

SECTION 1. 33-44-103 (2),(3.5),(6),(8), and (9), Colorado Revised Statutes,

are amended, and the said 33-44-103 is further amended BY THE ADDITION OF
THE FOLLOWING NEW SUB SECTIONS,to read:
33-44-103. Definitions. As ured in this article, unless the context otherwise
requires:
actually engaged in competition,
(2) "Competitor" means
. . a skier
leltifol wltll t11G p imissioa bf the ski aA,a op ia ot on a y sleYC ui tia, .1 por iuii
theleaf d~signatt.d A SPECIAL EVENT,OR TRAINING OR PRACTICING FOR COMPETITION
OR A SPECIAL EVENT ON ANY PORTION OF THE AREA MADE AVAILABLE by the ski area
operator.
(3.1) "EXTREME TERRAIN" MEANS ANY PLACE WITHIN THE SKI AREA BOUNDARY
THAT CONTAINS CLIFFS WITH A MINIMUM TWENTY-FOOT RISE OVER A FIFTEEN-FOOT
RUN, AND SLOPES WITH A MINIMUM FIFTY-DEGREE AVERAGE PITCH OVER A
ONE-HUNDRED-FOOT RUN.
(3.3) "FREESTYLE TERRAIN" INCLUDES, B UT IS NOT LIMITED TO, TERRAIN PARKS
AND TERRAIN PARK FEATURES SUCH AS JUMPS, RAILS, FUN BOXES, AND ALL OTHER
CONSTRUCTED AND NATURAL FEATURES, HALF-PIPES, QUARTER-PIPES, AND
FREESTYLE-BUMP TERRAIN.

Capita! letters indicate new material added to existing statutes; dashes through words indicate deletions
from existing statutes and such material notpart ofact.

Ch. 341

Natural Resources

1383

(3.5) "Inherent dangers and risks of skiing" means those dangers or conditions
THAT are an intcgt al 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 ofslope 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 ofskiers 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 ofthe ski area operator for injury
caused by the use or operation ofski lifts.
11i411

(6) "Ski area" means all ski slopes or trails and ALL other places WITHIN THE SKI
AREA BOUNDARY,MARKED IN ACCORDANCE WITH SECTION 33-44-107(6), under the
control ofa ski area operator and administered as a single enterprise within this state.
(8) "Skier" means any person using a ski area for the purpose of skiing, fat
purpose ofWHICH INCLUDES,WITHOUT LIMITATION, sliding downhill OR JUMPING on

snow or ice on skis, a toboggan, a sled, a tube, a ski-buly SNOWBIKE, a snowboard,

or any other device; or for the purpose of using any of the facilities ofthe ski area,
including but not limited to ski slopes and trails.
(9) "Ski slopes or trails" means ALL SKI SLOPES OR TRAILS AND ADJOINING SKIABLE
TERRAIN,INCLUDING ALL THEIR EDGES AND FEATURES, AND those areas designated
by the ski area operator to be used by skiers for any of the purposes enumerated in
subsection (8) of this section. Such designation shall be set forth on trail maps, if
provided, and designated by signs indicating to the skiing public the intent that such
areas be used by skiers for the purpose of skiing. Nothing in this subsection (9) or
in subsection(8)ofthis section, however,shall imply that ski slopes or trails may not
be restricted for use by persons using skis only or for use by persons using any other
device described in subsection (8) of this section.
SECTION 2. 33-44-107(2)(d), Colorado Revised Statutes, is amended to read:
33-44-107. Duties of ski area operators - signs and notices required for
skiers' information. (2) A sign shall be placed in such a position as to be
recognizable as a sign to skiers proceeding to the uphill loading point of each base
area lift depicting and explaining signs and symbols which the skier may encounter
at the ski area as follows:
(d)

anger all as, dcstgliatc I Ly-a-tcCtAL mita len pu1irrit.dl a p,diuW than6 t

bkiilig. THE SKI AREA'S EXTREME TERRAIN SHALL BE SIGNED AT THE COMMONLY USED
ACCESS DESIGNATED WITH TWO BLACK DIAMONDS CONTAINING THE LETTERS "E" IN

1384

Natural Resources

Ch. 341

ONE AND"X"IN THE OTHER IN WHITE AND THE WORDS "EXTREME TERRAIN". THE SKI
AREA'S SPECIFIED FREESTYLE TERRAIN AREAS SHALLBE DESIGNATED WITH AN ORANGE
OVAL.
SECTION 3. 33-44-108 (2), Colorado Revised Statutes, is amended to read:
33-44-108. Ski area operators - additional duties. (2) Whenever maintenance
equipment is being employed to maintain or groom any ski slope or trail while such
ski slope or trail is open to the public, the ski area operator shall place or cause to be
placed a conspicuous notice to that effect at or near the top of that ski slope or trail.
THIS REQUIREMENT SHALL NOT APPLY TO MAINTENANCE EQUIPMENT TRANSITING TO
OR FROM A GROOMING PROJECT.
SECTION 4. 33-44-109 (6) and (10), Colorado Revised Statutes, are amended
to read:
33-44-109. Duties of skiers - penalties. (6) Each ski OR SNOWBOARD used by
a skier while skiing shall be equipped with a strap or other device capable ofstopping
the ski OR SNOWBOARD should the ski OR SNOWBOARD become unattached from the
skier. This requirement shall not apply to cross country skis.
(10) No skier involved in a collision with another skier or person in which an
injury results shall leave the vicinity of the collision before giving his OR HER name
and current address to an employee of the ski area operator or a member of the
voluntary ski patrol, except for the purpose ofsecuring aid for a person injured in the
collision; in which event the person so leaving the scene ofthe collision shall give his
OR HER name and current address as required by this subsection(10) after securing
such aid.
SECTION 5. 33-44-110, Colorado Revised Statutes, is amended to read:
33-44-110. Competition and freestyle terrain. (1) The ski area operator shall,
prior to the beginning of a competition, allow each competitor a t\,asonable visual
USE OF ANY
inspection of the course or-arta whcie the eonipetitimi to
PORTION OF THE AREA MADE AVAILABLE BY THE SKI AREA OPERATOR, ALLOW EACH
COMPETITOR AN OPPORTUNITY TO REASONABLY VISUALLY INSPECT THE COURSE,
VENUE, OR AREA.
(2) The competitor shall be held to assume the risk of all course, VENUE,OR AREA
conditions, including, but not limited to, weather and snow conditions; OBSTACLES;
course OR FEATURE LOCATION, construction, or layout, and obstacles which a 1,isual
inspe,lion should haw A,v,alk..d FREESTYLE TERRAIN CONFIGURATION AND
CONDITIONS; AND OTHER COURSES,LAYOUTS,OR CONFIGURATIONS OF THE AREA TO
BE USED. No liability shall attach to a ski area operator for injury or death ofTO any
competitor pioxititatdy caused by such as-sutmd risk COURSE, VENUE, OR AREA
CONDITIONS THAT A VISUAL INSPECTION SHOULD HAVE REVEALED ORBY COLLISIONS
WITH OTHER COMPETITORS.
SECTION 6. Applicability. This act shall apply to acts occurring on or after the
effective date of this act.

Ch. 341

Natural Resources

1385

SECTION 7. Safety clause. The general assembly hereby finds, determines, and
declares that this act is necessary for the immediate preservation ofthe public peace,
health, and safety.
Approved: May 28,2004

SUPREME COURT,STATE OF COLORADO

2 East 14th Avenue
Denver, CO 80203
Certiorari to the Court of Appeals, 2014 COA 13,
Hon. Fox, J., Navarro, J., concurs, and Jones, J.,
dissents, 13CA0517
Grand County District Court, Hon. Mary C. Hoak,
Judge, 12CV132
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
Corp.
Attorneysfor Petitioner:
James G. Heckbert, Atty. No. 37230
Diane Vaksdal Smith, Atty. No. 14340
Nelson P. Boyle, Atty. No. 39525
Burg Simpson Eldredge Hersh & Jardine,PC
40 Inverness Drive East
Englewood, CO 80112
Tel:(303)792-5595 I Fax:(303)708-0527
[email protected]
[email protected]
[email protected]
Appendix 4

A COURT USE ONLY A

Sup. Ct. No.: 2014 SC 224

Loveland's Over the Rainbow was cleared by a human-set avalanche - The Denver Post

Page 1 of 1

Loveland's Over the Rainbow was cleared by a human-set

avalanche
Posted:

DenverPost.com

Loveland ski patrol director Pip Baehler had a hand in clearing the double black diamond trail
known as Over the Rainbow, but it wasn't his intent.
In February 1996, Baehler threw an avalanche bomb that caused a massive slide and cleared the
slope all the way to the parking lot, although he blames Ron Kidder, then the area's ski patrol
director.
"It was me that threw the charge; it was my boss, Ron Kidder, who lit it," Baehler recalled last week.
"I really had no choice. He was like, 'Well, throw it!' I'm like,'OK.'"
Avalanche "control" turned into avalanche devastation. Trees 60 feet tall were hurled into the air
like missiles, and a '1986 Honda Civic parked below was totaled.
It was Baehler's car.
"My car is (ruined)," Baehler told Kidder as they looked down to survey the destruction they caused.
The roof of his car was flattened and the glove compartment was packed with snow, but when
Baehler tried the ignition, the engine started and the radio came on.
"It gave us a whole new run," Baehler said. "It also gave us access to the trees that are east of that
trail that the slide path came down. We decided to open all that terrain, because it is such naturally
gladed skiing over there. Lots of fun."
John Meyer, The Denver Post

http://www.denverpost.com/ci_21779444/lovelands-over-rainbow-was-cleared-by-human-set?IA...

9/11/2013