Fleury v. Intrawest Winter Park Operations Corp.

• Citation: 411 P.3d 81
• Decision Date: 13 February 2014
• Docket Number: Court of Appeals No. 13CA0517
• Parties: Salynda E. FLEURY, individually, on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris, Plaintiff–Appellant, v. INTRAWEST WINTER PARK OPERATIONS CORPORATION, Defendant–Appellee.
• Court: Court of Appeals of Colorado

411 P.3d 81

Salynda E. FLEURY, individually, on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris, Plaintiff–Appellant,

v.INTRAWEST WINTER PARK OPERATIONS CORPORATION, Defendant–Appellee.

Court of Appeals No. 13CA0517

Colorado Court of Appeals, Div. VII.

Announced February 13, 2014

Burg Simpson Eldridge Hersh & Jardine, P.C., Diane Vaksdal Smith, Nelson P. Boyle, James G. Heckbert, Englewood, Colorado, for Plaintiff–Appellant

Reitz Law Firm, LLC, Peter W. Reitz, Kimberly A. Viergever, Brian A. Birenbach, Dillon, Colorado, for Defendant–Appellee

Opinion by JUDGE FOX

¶ 1 This case arises from the death of Christopher H. Norris, who was killed by an avalanche while skiing at Winter Park Resort. Mr. Norris's wife, Salynda E. Fleury, individually and on behalf of her minor children Indyka and Sage Norris, sued defendant, IntraWest Winter Park Operations Corporation (IntraWest), the operator of Winter Park Resort. The district court granted IntraWest's motion for determination of law and judgment on the pleadings, ruling that an avalanche is an inherent danger or risk of skiing under the Ski Safety Act, § 33–44–101 to – 114, C.R.S.2013 (the Act), and therefore IntraWest cannot be liable for Mr. Norris's death. We agree and affirm.

I. Background and Procedural History

¶ 2 On January 22, 2012, Mr. Norris was fatally injured in an avalanche while skiing inbounds at Winter Park Resort on a run known as Trestle Trees/Topher's Trees (Trestle Trees). Ms. Fleury asserted claims for negligence and wrongful death. Ms. Fleury claimed that IntraWest knew or should have known that an avalanche was likely to occur on Trestle Trees on January 22, 2012, and that IntraWest's failure to warn skiers about the likelihood of avalanches or failure to close Trestle Trees caused Mr. Norris's death. Ms. Fleury sought an unspecified amount of economic and noneconomic damages, and punitive damages for IntraWest's alleged willful and wanton conduct.

¶ 3 IntraWest moved for a determination of law under C.R.C.P. 56(h), and a judgment on the pleadings under C.R.C.P. 12(c), asserting immunity from liability because an avalanche is an inherent danger or risk of skiing under the Act. See §§ 33–44–103(3.5) (defining inherent dangers and risks of skiing) and 33–44–112 (granting immunity when an injury results from an inherent danger or risk of skiing). IntraWest also asserted that the Act caps the maximum amount of compensatory damages for derivative claims at $250,000, present value. See § 33–44–113.

¶ 4 The court held that the avalanche that killed Mr. Norris was an inherent risk of skiing, and thus IntraWest was not liable for his death. The court dismissed Ms. Fleury's claims with prejudice, but opined that were Ms. Fleury allowed to proceed with her claims, compensatory damages would be capped at $250,000, individually and on behalf of her minor children.

II. Liability Under the Act

¶ 5 Ms. Fleury contends that the district court erred in determining that the avalanche was an inherent risk of skiing under § 33–44–103(3.5). We disagree and therefore affirm.

A. Standard of Review

¶ 6 We review a district court's order granting a judgment on the pleadings under C.R.C.P. 12(c) de novo. In re Estate of Johnson, 2012 COA 209, ¶ 18, 304 P.3d 614. We likewise review a district court's determination of a question of law under C.R.C.P. 56(h) de novo. Henisse v. First Transit, Inc., 247 P.3d 577, 579 (Colo.2011). An order deciding a question of law is proper "[i]f there is no genuine issue of any material fact necessary for the determination of the question of law." C.R.C.P. 56(h). The nonmoving party is entitled to all favorable inferences. Henisse, 247 P.3d at 579.

¶ 7 Statutory interpretation, the matter we must address here, presents a question of law and is also subject to de novo review. Stamp v. Vail Corp., 172 P.3d 437, 442 (Colo.2007). When the language of the statute is clear and unambiguous, we give effect to its plain and ordinary meaning. Id. Likewise, when the General Assembly defines a term, we must apply that definition. People v. Swain, 959 P.2d 426, 429 (Colo.1998) ; In re M.D.E., 2013 COA 13, ¶ 10, 297 P.3d 1058. However, when the language is ambiguous—that is, reasonably susceptible of multiple meanings—we may consider extrinsic indications of the General Assembly's intent. Stamp, 172 P.3d at 442 ; In re M.D.E., ¶ 10.

B. Applicable Law

¶ 8 In adopting the Act, the General Assembly recognized that there are dangers inherent to the sport of skiing, regardless of the safety measures that may be employed by ski area operators. § 33–44–102. The Act's stated purposes are to "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." Id. Consistent with these purposes, the Act grants ski area operators immunity from claims for injuries resulting from any of the inherent dangers and risks of skiing. § 33–44–112. Accordingly, a skier may not recover if his injury—or death, see Stamp, 172 P.3d at 447 —is the result of an inherent danger or risk of skiing.

C. Avalanches as Inherent Dangers or Risks of Skiing

¶ 9 Ms. Fleury contends that because an "avalanche" is not specifically listed as an inherent danger or risk of skiing in § 33–44–103(3.5), the General Assembly did not intend that it should be so regarded for purposes of the Act. Relying on Turbyne v. People, 151 P.3d 563, 567 (Colo.2007) (holding that a court cannot add words to a statute), and Lunsford v. Western States Life Insurance, 908 P.2d 79, 84 (Colo.1995) (where the legislature has spoken with exactitude, a court must construe the statute to mean that inclusion or specification of a particular set of conditions necessarily excludes others), she argues that the definition of "inherent dangers and risks of skiing" is a finite list. According to Ms. Fleury, construing the definition to include avalanches would expand the scope of a ski area operator's immunity under the Act in contravention of the intent of the General Assembly. We disagree, for two reasons.

1. Plain Meaning of the Act

¶ 10 First, giving effect to the plain meanings of the words in the Act, we conclude that an avalanche fits the definition of inherent dangers and risks of skiing. As relevant here, the inherent dangers and risks of skiing include:

those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; [and] variations in steepness or terrain, whether natural or as a result of slope design[.]

§ 33–44–103(3.5). We must apply this definition as written. Swain, 959 P.2d at 429.

¶ 11 The operative definition contains the word "including" before listing nonexclusive examples. Because the General Assembly typically uses "include" as a word of extension or enlargement, listing examples in a statutory definition does not restrict the term's meaning. See S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226, 1233 n. 4 (Colo.2011) ; see also Lyman v. Town of Bow Mar, 188 Colo. 216, 222, 533 P.2d 1129, 1133 (1975) (stating that the word " ‘include’ " in a statute ordinarily signifies extension or enlargement, and it is not synonymous with the word " ‘mean’ "). The list is illustrative and not, as Ms. Fleury argues, confined to the identified dangers.

¶ 12 In Kumar v. Copper Mountain, Inc., the Tenth Circuit held that a cornice, which is not listed in the Act, is an inherent danger or risk of skiing. 431 Fed.Appx. 736, 738 (10th Cir.2011). This cornice regularly formed at the intersection of two ski runs, but the resort did not post any warning signs alerting skiers to its existence or the potential danger of the steep drop-off at the edge. Id. at 737. The injuries in Kumar occurred when the skier did not see the edge of the cornice, and he unintentionally skied off of that edge. Id. The Tenth Circuit concluded that a cornice falls within the statutory definition of an inherent danger or risk of skiing either "within the section relating to snow conditions as they exist or change, or the provision covering variations in steepness or terrain." Id. at 738.

¶ 13 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," see Webster's Third New International Dictionary Unabridged 150 (2002); see also Union Ins. Co. v. Houtz, 883 P.2d 1057, 1068 (Colo.1994) (an appellate court may consult recognized dictionaries to determine the ordinary meanings of words) – fits one or more of the statutory examples of inherent dangers or risks of skiing.

¶ 14 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 thirty degrees. Thus, even pursuant 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 thirty degrees).

¶ 15 An avalanche falls neatly into the examples of dangers in the Act, and comports with the common understanding of a "danger": a "[p]eril; exposure to harm, loss, pain, or other negative result." Black's Law Dictionary 450 (9th ed.2009); see also Union Ins. Co., 883 P.2d at 1068. An avalanche is itself a danger resulting from certain conditions of snow, and the degree of danger is affected by "changing weather conditions" across "variations of steepness and terrain." See Mannhard v. Clear Creek Skiing Corp., 682 P.2d 64, 66 (Colo.App.1983) (characterizing avalanche danger as arising from dangerous natural snow conditions).

¶ 16 We...