Graven v. Vail Associates, Inc.

• Decision Date: 18 December 1995
• Docket Number: No. 94SC416,94SC416
• Citation: 909 P.2d 514
• Parties: David E. GRAVEN, Petitioner, v. VAIL ASSOCIATES, INC., Respondent.
• Court: Colorado Supreme Court

Page 514

909 P.2d 514

David E. GRAVEN, Petitioner, v. VAIL ASSOCIATES, INC., Respondent.

No. 94SC416.

Supreme Court of Colorado En Banc.

Dec. 18, 1995.

As Modified on Denial of Rehearing

Jan. 16, 1996.

Kenneth Dresner, Colorado Springs, for Petitioner.

White & Steele, P.C., John M. Lebsack, Glendon L. Laird, Peter W. Rietz, Monty L. Barnett, Denver, for Respondent.

White & Steele, P.C., Peter W. Rietz, Denver, for Amicus Curiae Colorado Ski Country USA.

Melanie Dummer Mills, Denver, for Amicus Curiae Colorado Ski Country USA.

Justice LOHR delivered the Opinion of the Court.

This is a negligence action brought by the plaintiff, David E. Graven, for injuries suffered as a result of a skiing accident at a ski area operated by the defendant, Vail Associates, Inc. The district court granted summary judgment for the defendant, based on its ruling that the plaintiff's claims were barred by the provisions of the Ski Safety Act of 1979, §§ 33-44-101 to -114, 14 C.R.S. (1995). The Colorado Court of Appeals affirmed, holding that as a matter of law the precipice or ravine down which the plaintiff slid during the accident that resulted in his injuries was a "variation in steepness or terrain" that falls within the definition of "inherent dangers and risks of skiing" in section 33-44-103(3.5), and, therefore, was not required to be marked with a warning sign by the defendant under section 33-44-107(2)(d) and was precluded by section 33-44-112 from providing a basis for the plaintiff's claim. Graven v. Vail Assocs., Inc., 888 P.2d 310 (Colo.App.1994). We granted certiorari ¹ and now reverse the judgment of the court of appeals and remand for further proceedings consistent with this opinion.

I.

The plaintiff, David E. Graven, suffered extensive injuries as a result of a skiing accident that occurred at a ski area owned and operated by the defendant, Vail Associates, Inc. In his complaint, the plaintiff described himself as a "good skier" and alleged that on April 3, 1992, he was skiing with companions on a run unfamiliar to him and designated "more difficult." He "moved toward the far left side of the ski run and began stopping in order to wait for his Companions." As he "was coming to a complete stop, he came upon some slushy snow and lost his edges, fell down, slid several feet, then plunged forty-fifty feet down an unmarked steep ravine or precipice (Steep Ravine)." He was "unable to stop until colliding with a cluster of trees at the bottom of the Steep Ravine." Graven alleged that the steep ravine or precipice was "immediately next to" the ski run and that his injuries resulted from the defendant's failure to warn of a known dangerous condition.

The defendant moved for summary judgment, asserting that the plaintiff's claims are legally barred by the Ski Safety Act of 1979, §§ 33-44-101 to -114, 14 C.R.S. (1995) (Ski Safety Act). In support of that motion, the defendant submitted an affidavit of Lawrence D. Lane, who stated that he had personal knowledge of the "investigation concerning the injury of David Graven" and described the accident area as follows:

The tree about which David Graven injured himself is off of the ski trail known as "Prima." There is a snow-covered transition The plaintiff then filed his own affidavit in which he described the accident area as follows:

which is off of the groomed portion of Prima which Graven went through before striking a tree in a naturally forested area. The area and the trees that David Graven complains about represent natural terrain features as well as a variation in terrain as a result of natural conditions, slope design and grooming operations.

The area where I was injured was off the ski run known as "Lower Prima." The accident occurred on the side of the ski run, after I had left a transition area. When attempting to stop at the side of the ski run, I fell down a 40 to 50 foot precipice.

Notwithstanding the differences between the descriptions of the accident scene as set forth in the affidavits, the district court granted summary judgment for the defendant. The court held that the plaintiff's injuries were caused by "inherent dangers and risks of skiing," as defined by section 33-44-103(3.5); specifically, "variations in steepness or terrain, whether natural or as a result of slope design," "snow conditions as they exist or may change, such as ... slush," "surface or subsurface conditions such as ... trees," and "the failure of skiers to ski within their own abilities." See § 33-44-103(3.5). Accordingly, the district court held that the defendant had no duty to warn of such inherent dangers and risks of skiing under section 33-44-107(2)(d), and that the plaintiff's claims were barred by section 33-44-112, which prohibits claims against ski area operators for injuries resulting from such inherent dangers and risks. ² The court of appeals affirmed on the basis that the plaintiff's injuries were caused by inherent dangers and risks of skiing as represented by "[t]he slush, the trees, and the ravine." Graven, 888 P.2d at 315. The court found it unnecessary to reach the issue of whether the plaintiff failed to ski within his own abilities. Id. at 316.

II.

A.

This case is before us for review of a grant of summary judgment for the defendant. "Summary judgment is a drastic remedy and is never warranted except on a clear showing that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." C.R.C.P. 56(c); Churchey v. Adolph Coors Co., 759 P.2d 1336, 1339-40 (Colo.1988); accord, e.g., Rael v. Taylor, 876 P.2d 1210, 1228 (Colo.1994); Civil Serv. Comm'n v. Pinder, 812 P.2d 645, 649 (Colo.1991). The party moving for summary judgment has the burden of establishing the nonexistence of any genuine issue of material fact. E.g., Pinder, 812 P.2d at 649; Continental Air Lines, Inc. v. Keenan, 731 P.2d 708, 712 (Colo.1987). In determining the propriety of summary judgment, the nonmoving party is entitled to all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts as to whether a triable issue of fact exists must be resolved against the moving party. E.g., Peterson v. Halsted, 829 P.2d 373, 376 (Colo.1992); Mancuso v. United Bank of Pueblo, 818 P.2d 732, 736 (Colo.1991). Bearing these principles in mind, we must first determine the scope of the protection

against liability provided to ski area operators under the statutes at issue, and then determine if any genuine issue of material fact exists concerning whether the events upon which the plaintiff bases his claim are included within that scope.

B.

A review of the statutory structure and relevant provisions of the Ski Safety Act will provide necessary background for evaluation of the propriety of summary judgment.

The Ski Safety Act was enacted in 1979 to establish reasonable safety standards and to define the relative rights and responsibilities of ski area operators and skiers. The legislative declaration provides:

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.; 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.

§ 33-44-102, 14 C.R.S. (1995).

As originally enacted, the Ski Safety Act identified several specific duties owed to ski patrons by ski area operators, §§ 33-44-106 to -108, 14 C.R.S. (1984), and explicitly stated that any violation of these duties constituted negligence. § 33-44-104(2), 14 C.R.S. (1984). The legislative declaration noted generally that dangers inhere in the sport of skiing, but the original Act did not otherwise include any language pertaining to inherent dangers and risks of skiing.

The General Assembly amended the Ski Safety Act in 1990. These amendments were intended to clarify the law regarding the duties and responsibilities of skiers and ski area operators and to provide additional protection for ski area operators. See Ch. 256, sec. 1, Legislative Declaration, 1990 Colo. Sess. Laws 1540. ³ Consistent with the legislature's limited purposes, the 1990 amendments did not alter the duties of ski area operators specifically identified in the original As it exists today, the Ski Safety Act, which retained the title "Ski Safety Act of 1979," contains the following provision with respect to the negligence of ski area operators:

Act, §§ 33-44-106 to -108, 14 C.R.S. (1995), or the legislative declaration articulating the purposes for which the Act was originally adopted. § 33-44-102, 14 C.R.S. (1995). The 1990 amendments did introduce and define the phrase "inherent dangers and risks of skiing," and added provisions excluding 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. Ch. 256, secs. 2, 3, 7, §§ 33-44-103(10), -107(2)(d), -112, 1990 Colo. Sess. Laws 1540, 1541, 1543.

A violation by a ski area operator of any requirement of this article ... shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.

§ 33-44-104(2), 14 C.R.S. (1995).

One such requirement is that ski area operators post warning signs with respect to danger areas. Specifically, section 33-44-107(1), 14 C.R.S. (1995), provides:

Each ski area operator shall maintain a sign and marking system as set forth in this section.......