Pizza v. Wolf Creek Ski Development Corp.

• Decision Date: 02 December 1985
• Docket Number: No. 83SA62,83SA62
• Citation: 711 P.2d 671
• Parties: , 54 USLW 2326 Bhrett PIZZA, Plaintiff-Appellant, v. WOLF CREEK SKI DEVELOPMENT CORPORATION, a Colorado corporation, Defendant- Appellee.
• Court: Colorado Supreme Court

Page 671

711 P.2d 671

55 A.L.R.4th 607, 54 USLW 2326

Bhrett PIZZA, Plaintiff-Appellant, v. WOLF CREEK SKI DEVELOPMENT CORPORATION, a Colorado corporation, Defendant- Appellee.

No. 83SA62.

Supreme Court of Colorado En Banc.

Dec. 2, 1985.

Rehearing Denied Jan. 21, 1986.

Williams, Trine, Greenstein & Griffith, P.C., William A. Trine, Boulder, Lee J. Shapiro, Littleton, for plaintiff-appellant.

White & Steele, Stephen K. Gerdes, John M. Lebsack, Denver, for defendant-appellee.

ROVIRA, Justice.

The plaintiff-appellant, Bhrett Pizza, appeals a judgment of the district court based on a jury verdict finding the defendant, Wolf Creek Ski Development Corporation (Wolf Creek), not negligent. He challenges the judgment on two grounds: that the Ski Safety Act of 1979, section 33-44-109(2), 14 C.R.S. (1984), is unconstitutional; ¹ and that the trial court erred in giving certain jury instructions and not giving others. We uphold the constitutionality of the challenged statute but agree that certain of the instructions given were erroneous. Accordingly, we reverse the judgment and remand for a new trial.

I.

On December 5, 1980, Pizza suffered severe injuries while skiing down "Thumper," a slope marked "more difficult" at Wolf Creek ski area. The injury occurred on his first run of the day. At trial, Pizza testified that while skiing down Thumper he unexpectedly became airborne due to a variation in terrain. After traveling through the air for an unknown distance, he landed in such a manner as to severely damage his spine.

A key issue at trial centered on the condition and nature of Thumper at the point where the accident occurred. The terrain of Thumper consists of a series of plateaus and drop-offs which extend from the top of the run to the bottom. The accident occurred near the "lower headwall" on Thumper. The lower headwall consists of a drop-off to a snow-covered service road which traverses the lower portion of the run. The downhill edge of the service road is followed by another drop-off. The road is used during the summer for logging purposes and to reach the ski lifts and runs for maintenance.

Shortly after the accident, Pizza's eyeglasses and ski poles were found approximately 20 to 25 feet from the downhill side of the service road; and he was found lying approximately 60 to 75 feet below the service road. No one witnessed the accident.

Pizza brought an action against Wolf Creek, the operator of the area, alleging negligent failure to warn of Thumper's dangerous condition, and negligent failure to eliminate the condition. The jury returned a verdict for the defendant.

II.

The appellant contends that the evidentiary presumption contained in section 33-44-109(2), 14 C.R.S. (1984), is unconstitutional as violative of the fourteenth amendment of the United States Constitution. ² That section states:

(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 structure 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.

He challenges the constitutionality of the presumption on the grounds that it is vague, not founded on a rational evidentiary basis, and violates his right to equal protection under the law. In addressing these contentions we are mindful of the well-settled principle that statutes are presumed to be constitutional, and the challenger bears the burden of proving unconstitutionality beyond a reasonable doubt. Section 2-4-201, 1B C.R.S. (1980); High Gear and Toke Shop v. Beacom, 689 P.2d 624, 630 (Colo.1984); People v. Smith, 620 P.2d 232 (Colo.1980).

A. Vagueness

The appellant argues that the word "responsibility," and the phrases "natural object" and "unless shown to the contrary by a preponderance of the evidence" are unconstitutionally vague under the due process clause of the fourteenth amendment. We disagree.

This court has always endeavored to construe statutory language in such a manner as to avoid finding it unconstitutional on the basis of vagueness whenever reasonable and practicable. Mr. Lucky's, Inc. v. Dolan, 197 Colo. 195, 199, 591 P.2d 1021, 1023 (1979). Because we have not adopted a standard concerning the requisite degree of certainty for determining the constitutionality of a purely civil statute, ³ we derive guidance from standards applied in the criminal context. In High Gear, we reviewed the constitutionality of the "Control of Drug Paraphernalia Act," sections 12-22-501 to 506, 5 C.R.S. (1983 Supp.), which imposes penalties for the possession, manufacture, sale, or delivery of drug paraphernalia. There, we stated that the "level of scrutiny which the court uses in reviewing a vagueness challenge will depend in part on the nature of the enactment." 698 P.2d at 631, citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). We then listed four factors to consider when determining the level of scrutiny to apply when reviewing a statute challenged on vagueness grounds: "The strictness of the vagueness test depends upon whether the enactment: (1) is an economic regulation; (2) imposes civil or criminal penalties; (3) contains a scienter requirement; and (4) threatens to inhibit the exercise of constitutionally protected rights." High Gear, 689 P.2d at 631, citing Flipside, 455 U.S. at 498, 102 S.Ct. at 1193.

In the instant case, the statutory presumption does not involve civil or criminal penalties and does not threaten to inhibit the exercise of constitutionally protected rights. At most, the presumption may be considered an economic regulation, ⁴ designed to limit the liability of ski area operators. ⁵ It is well established that economic regulations are subject to a less exacting vagueness standard than penal statutes or laws regulating first amendment rights. Flipside, 455 U.S. at 498, 102 S.Ct. 1193, citing Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Nor does the absence of a scienter requirement here raise the level of scrutiny. In short, we are dealing with a civil statute which regulates constitutionally unprotected conduct and which has no effect on speech or expression.

The guidelines adopted in People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975), are also helpful in evaluating appellant's vagueness challenges. In Blue, the defendants contended that a criminal statute was void for vagueness because its crucial terms were so vague that a person of ordinary intelligence would have to speculate as to their meaning. In rejecting defendants' challenge, the court stated that there are limits to the degree of exactitude required of any statute:

[F]ew words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded.

Blue, 190 Colo. at 99, 544 P.2d at 388, quoting Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367 (1952); see also People v. Cardwell, 181 Colo. 421, 510 P.2d 317 (1973). Moreover, we have never mandated that every word or phrase be specifically defined. To the contrary, we have stated that "the legislature is not constitutionally required to specifically define the readily comprehensible and every-day terms it uses in statutes." Blue, 190 Colo. at 101, 544 P.2d at 389, citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The words challenged in this case involve such readily comprehensible terms.

We turn now to the specific challenges raised by the appellant. First, he asserts that the word "responsibility" is unconstitutionally vague. While the word does not fit nicely into the phraseology used in negligence cases, it is nevertheless common and readily understood. The probable legislative intent in using such a word may be determined by resorting to a standard dictionary. Blue, 190 Colo. at 100, 544 P.2d at 388. Webster's Third New International Dictionary 1935 (1961) defines "responsibility" as "moral, legal, or mental accountability." Further, Black's Law Dictionary 1476 (4th ed. 1951) defines the root term "responsible" as "liable, legally accountable or answerable." Some courts, moreover, have stated that the term "responsibility" is synonymous with "liability." See, e.g., Rochester Machine Corp. v. Mulach Steel Corp., 449 A.2d 1366, 1369, 498 Pa. 545 (1982); Thorgaard Plumbing & Heating Co. v. County of King, 426 P.2d 828, 835 (Wash.1967). More specifically, we think that the term "responsibility" as used in section 33-44-109(2) encompasses the legal concept of "fault." Legal scholars have long recognized that the concept of liability is closely related to that of fault. ⁶ In effect, the statute creates a rebuttable presumption that the skier is at fault whenever he collides with an object listed in section 33-44-109(2). And "fault" may be defined as the equivalent of negligence. Continental Insurance Co. v. Sabine Towing Co., 117 F.2d 694, 697 (5th Cir.), cert. denied, 313 U.S. 588, 61 S.Ct. 1111, 85 L.Ed. 1543. ⁷ Given this connection between "responsibility" and "negligence," we conclude that the legislature intended, in the context of a skiing accident case, that the term "responsibility" be equated with the concept of "negligence" for purposes of applying the presumption contained within...