The Colorado Supreme Court on Tuesday heard oral arguments in a wrongful-death case that could shake the foundation of the law that shields ski areas from liability for on-slope injuries and deaths.

Lawyers were grilled by the justices weighing this question: Are avalanches an inherent risk of skiing, or should resorts be liable for injuries caused by sliding snow within their boundaries?

It depends, they said, on how you interpret dangers listed in the Colorado Ski Safety Act — which doesn’t specifically name avalanches but does include the conditions that create them.

Arguments in the case, which centers on a Winter Park avalanche fatality, were heard at East High School as part of the Courts in the Community program.

The Ski Safety Act, created in 1979 and amended in 1990 and 2004, was created to protect Colorado ski areas from excessive litigation, allowing them to operate without onerous liability insurance premiums. It cites changing weather, nine types of snow conditions, terrain variations and more than two dozen other dangers that are inherent risks of skiing. A skier injured under those risks cannot sue the ski area.

The absence of avalanches in the list makes Winter Park ski area liable for the death of Christopher Norris, said attorney Jim Heckbert, who represents Norris’ widow, Salyndra Fleury, in her wrongful-death case.

Avalanche danger high

Norris was 28 when he died in a small slide in steep trees off an expert run Jan. 22, 2012. The lawsuit argues the resort should have closed the terrain because avalanche danger was high that day and seeks damages beyond the Ski Safety Act’s $250,000 cap



.

But Peter Rietz, who represents Winter Park operator Intrawest, argued that even if the list is an absolute checklist of all the risks that skiers must assume, the law’s mention of changing snow conditions, changing weather and varying terrain implies an avalanche because those three elements are required to trigger a cascade of snow.

Heckbert urged the justices to consider the word “including,” which legislators used to introduce the list of inherent risks in the Ski Safety Act, as an exclusive modifier.

“We have to interpret this statute strictly, which means we have to give literal interpretation to the words that are used,” he said.

When Heckbert used the word “including” as part of his argument, Justice Allison Eid stopped him and asked for his own definition of the word. She said it sounded like he was using “including” to introduce an example but was arguing that its use in the statute should be interpreted as a definitive modifier for a narrow list.

“My definition within the statute must be confined to these as the exclusive conditions and events which will trigger immunity,” said Heckbert, a Steamboat Springs attorney who has represented skiers suing resorts several times in his 42-year career.

Justice Nathan Coats pushed Eid’s line of questioning, telling Heckbert it sounded like he was “making a really broad statement there.”

“Whenever the legislature passes a statute that would alter the common law, the word ‘include’ always is exclusive?” Coats asked.

For a while, it seemed like the court was leaning against Heckbert, with nearly every judge grilling him with questions gleaned from several hundred pages of briefs filed in the case.

When Heckbert said ski areas are aware of avalanche paths inside their boundaries, Justice Brian Boatright asked if Heckbert was asking the court “to conclude that avalanches are predictable?”

“Just saying snow, or snow conditions that can change, that doesn’t mean avalanche,” Heckbert said. “Did the General Assembly intend for us to take one condition here and one condition there and combine them together to come up with a word? Why didn’t they just say avalanche rather than taking us through this contorted exercise of semantic gymnastics?”

That line of intense questioning continued with Rietz, a Dillon attorney who often defends ski areas in litigation, who

argued that “skiing is not a safe sport” and said avalanches “are inextricably part of the sport of skiing.”

When he argued that the list of dangers in the Ski Safety Act is just a “nonexclusive list of examples,” Coats again asked if the word “including” should always be considered expansive when used in legislation.

“Can the word ‘including’ have more than one meaning?” Chief Justice Nancy Rice asked.

When Rietz urged the justices to not spend too much time studying the legislative history of the Ski Safety Act, Justice Monica Márquez noted that the 1990 amendment cut the phrase “but not limited to” from the law’s introduction of the list of dangers.

“Are we not to draw some sort of inference from that?” Márquez asked.

A common question for Rietz was why he thought legislators didn’t include avalanches in their list of dangers if it was such a threat to skiers. Rietz often returned to his argument that the three key elements of an avalanche — new snow, changing weather and steep terrain — are listed in the Ski Safety Act.

An inherent risk?

Fatal avalanches inside ski-area boundaries are rare, Rietz said. In the past 30 years, three skiers have been killed by in-bounds slides in Colorado, including 13-year-old Taft Conlin, who died in a slide on Vail Mountain on the same day as Norris. (Heckbert is representing Conlin’s family in a lawsuit against Vail, and that lawsuit has been suspended pending the Supreme Court’s decision in the Norris case. Rice said Tuesday that the court will deliver its decision in three to four months.)

Rietz argued that “it’s basically impossible to ensure there won’t be an in-bounds avalanche” and that Norris’ death, while tragic, was the result of “a naturally occurring, small avalanche.” There was no avalanche mitigation by ski patrollers in that area in the trees just off the expert Trestle run, he said.

Márquez asked Rietz a pointed question about the consequence of ruling that avalanches are an inherent risk of skiing.

“What duties would the ski area have at all if they are actually immune from a suit from avalanches?” Márquez said. “You would agree then there would be no legal duty to do any type of mitigation work or warning or closing off of territory?”

Rietz responded that ski areas operating on federal land — 23 of Colorado’s 25 ski areas — are required to have avalanche mitigation programs to keep visitors safe. Resort avalanche mitigation work dates to long before the 1979 Ski Safety Act, he said.

Rice said when she goes skiing, she does not expect to get caught in an avalanche. She said she might be concerned about lack of visibility or bad snow. She can anticipate most of the risks detailed in the Ski Safety Act.

“Isn’t it qualitatively different when one goes to ski you don’t expect to be caught in an avalanche?” Rice asked.

Skiers can anticipate and deal with snow conditions and rocks and trees and terrain variations, Márquez said. Those are conditions a skier can “readily perceive and make an informed decision about,” she said.

“An avalanche seems to be qualitatively different. It’s not something where you can sort of assess conditions and make an informed decision about,” Márquez said. “Help me understand how an avalanche still fits in those categories.”

Rietz said avalanches are naturally occurring phenomena that are no different than any of the dangers listed in the act.

“If it really isn’t any different … why didn’t the legislature just say ‘or avalanche?’ ” Rice said. “Why do we have to create or will a construct from the statute to get where you want this to go? We have to put changing weather together with snow conditions together with terrain.”

Jason Blevins: 303-954-1374 or jblevins@denverpost.com