2/19/2014 7:16:00 AM,
Jeff D. Gorman
(CN) - A Colorado woman whose husband was killed in an avalanche cannot prevail in her wrongful death lawsuit against the ski resort, the state appeals court ruled.
Christopher Norris died on Jan. 22, 2012, when he was caught in an avalanche on the Trestle Trees run at Winter Park Resort.
His wife, Salynda Fleury, sued IntraWest Winter Park Operations Corp. for wrongful death, on behalf of herself and the couple's two children.
Fleury argued that Winter Park should have known that an avalanche was likely at Trestle Trees that day and that it should have closed the run.
But IntraWest countered that avalanches are an inherent risk of skiing under the Ski Safety Act, thus clearing it of liability.
A district judge in Grand County agreed with IntraWest, and the Colorado Court of Appeals affirmed, 2-1, Thursday.
"Similar to a cornice, an avalanche - 'a large mass of snow, ice, earth, rock or other material in swift motion down a mountainside or over a precipice' - fits one or more of the statutory examples of inherent dangers or risks of skiing," Judge Terry Fox wrote for the majority.
"Ms. Fleury's complaint alleges that the avalanche that killed Mr. Norris was caused by new snowfall on top of a weak and unstable snowpack on a north-facing slope of greater than 30 degrees," Fox continued. "Thus, even pursant to Ms. Fleury's own allegations, the avalanche resulted from changing snow conditions (new snowfall) and existing snow conditions (weak and unstable snowpack) caused by weather and slope steepness (slope exceeding 30 degrees)." (Parentheses in original.)
Judge Jerry Jones dissented as to the inherent risk finding under the Ski Safety Act.
"In my view, that provision does not expressly or by clear implication include avalanches occurring on open, designated ski trails within its definition; therefore, the grant of immunity in [the law], for injuries resulting from the inherent dangers and risks of skiing does not apply to injuries resulting from such avalanches," he wrote. "Because Mr. Norris was killed as a result of an avalanche on an open designated trail within the ski area - an event for which IntraWest does not have immunity - I would reverse the district court's judgment and allow his family members' claims to proceed."