Colorado Supreme Court to rule on 2012 Winter Park Resort death |

Colorado Supreme Court to rule on 2012 Winter Park Resort death

Art Ferrari / Special to the Sky-Hi News
Staff Photo |

A lawsuit filed after the 2012 death of a skier at Winter Park Resort will go to the Colorado Supreme Court later this month.

The state’s highest court will hear oral arguments in Fleury v. IntraWest Winter Park Operations Corp. on Sept. 29 at East High School in Denver as part of its “Courts in the Community” program.

Salynda Fleury filed the lawsuit against Winter Park Resort alleging negligence, wrongful death and willful and wanton conduct after her husband Christopher Norris was killed in an inbound avalanche while skiing the Trestle Trees area on Mary Jane on Jan. 22, 2012.

The lawsuit hinges on the definition of “the inherent dangers and risks of skiing,” a statutory designation that gives ski area operators immunity from suit for certain injuries sustained on their slopes.

The Ski Safety Act of 1979 includes in its definition of those dangers snow conditions, variations in terrain and steepness and weather conditions, but it does not specifically mention avalanches.

The Colorado General Assembly added the definition in 1990.

The Colorado Avalanche Information Center issued an avalanche forecast and warning for an area including Winter Park Resort around 36 hours before Norris’ death, according to the opening brief to the state Supreme Court filed by Jim Heckbert, Fleury’s attorney. The warning referred primarily to backcountry travelers and did not mention ski areas.

Heckbert said that Winter Park Resort knew the Trestle Trees area was prone to avalanche danger and should have closed the area to skiers.

“They knew that that was avalanche country, and they left it open, and they’re lucky that more people didn’t die in there,” Heckbert said.

Grand County District Court Judge Mary Hoak ruled that Winter Park Resort was immune from liability under the SSA and dismissed the lawsuit.

The Colorado Court of Appeals upheld the dismissal in a 2-1 decision, ruling that avalanches were consistent with the General Assembly’s intent in defining inherent risks based upon factors like snow conditions, terrain and weather conditions.

But Heckbert contends that the appellate court’s interpretation of inherent risks went beyond the scope of what the General Assembly intended, according to their brief.

Because the legislature knew the list would be closely scrutinized, it had to be especially specific in its definition, Heckbert said.

Brian Birenbach, attorney for Winter Park Resort, aligns himself with the logic of the appellate ruling in an answer brief filed with the state Supreme Court.

The lawsuit could have a major impact on what injuries Colorado ski resort operators are liable for, Heckbert said. In addition to clarifying whether avalanches are an inherent risk of skiing in a developed ski resort, the Supreme Court’s decision will determine whether the SSA definition is open to expansion, Heckbert said.

Heckbert gave the 2004 death of 13-year-old Ashley Stamp at Vail Resort as an example of negligence on behalf of resort employees not mentioned in the SSA. Stamp died after colliding with a snowmobile carrying resort employees.

“Is that just an inherent risk?,” Heckbert said. “I don’t think so.”

The Association of Professional Patrollers and Colorado Ski Country USA filed briefs in support of the appellate decision while the Colorado Trial Lawyers Association filed a brief supporting Fleury.

Steve Hurlbert, communications director with Winter Park Resort, said the resort could not comment on pending litigation.

Birenbach’s law firm had not returned a request for comment as of press time.

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