Last week, our Gallivan, White & Boyd offices were trapped in the middle of a Southern Snowpocalypse, so we here at Abnormal Use were able to spend a few days enjoying the snow with our families. We partook in the customary activities of sledding, building snowmen, and throwing snowballs. We also observed others engaging in not-so-standard activities like pulling kayaks across snow-packed roads with golf carts. As lawyers, we naturally started thinking about the potential liability for any injuries to said snow kayakers. Beyond the operator of the golf cart, it is hard to identify any other obvious potential tortfeasors. But, what about the Homeowners Association? Could it be held liable for permitting such activities on its roads during the wrath of Mother Nature? Sounds absurd, we know. But, what duty should an entity have to warn of the dangers of weather?
Last week, in Fleury v. IntraWest Winter Park Operations, the Colorado Court of Appeals held that a Colorado ski resort was protected from such liability. According to CBS-Denver, a man was killed by an avalanche while skiing at the Winter Park ski resort back in 2012. On the morning of the man’s death, the Colorado Avalanche Information Center issues a warning that the chance of avalanche was high due to high winds and heavy snow. The man’s widow sued IntraWest, the owner and developer of the resort, claiming that the ski area should have been roped off and her husband not allowed to ski due to the warning. The trial court dimissed the case on the grounds that ski resorts are shielded from liability for accidents caused by avalanches. The Court of Appeals affirmed, holding that the avalanche was caused by new snowfall, weak and unstable snowpack, and a steep slope – all of which are covered by the state law.
This case is obviously one in which the state legislature had already addressed the issue. Even if it had not, we believe the result should be the same. This isn’t a case in which the avalanche was caused by some act of the resort. The result may be different if the resort was blasting nearby to pave the way for a new hotel. This case is about an act of weather. Mother Nature plays havoc on us all and is often unpredictable. We should all appreciate the unpredicatable nature of the weather when we partake in any activity. The plaintiff in this matter claims that this accident could have been avoided had the resort listened to the Colorado Avalanche Information Center warning and closed off the ski area. Interestingly, however, those claims are misplaced. The Information Center only warned of the possibility of avalanches and actually urged skiiers to “enjoy the powder in the safety of the ski area.”
Clearly, a skiier trapped in an avalanche is not comparable to a kayak pulled behind a golf cart. One involves a standard activity. The other involves a couple of individuals adding some Southern flare to customary activities. Nonetheless, Mother Nature treats us all the same. And, so should the liability.