Graven v. Vail Associates, Inc.
Court: Supreme Court of Colorado, 94 SC 416 (Colo. Sup. Ct. 12/18/95)

Facts:

In Graven v. Vail Associates, Inc. the Colorado Supreme Court adopted a narrow construction of the inherent danger provisions of the Colorado Ski Act. C.R.S. 33-44-101 et seq. This precedent will allow some skiers, who are injured while skiing, to advance a claim for injuries against a ski area operator if the injury results not only from a ski area operator's breach of a specific duty set out in the Ski Act, but also from a danger or risk which is found to be not "integral" to the sport. The decision brings Colorado ski law into line with Montana, Utah, and Vermont - other thoughtful and responsible jurisdictions with substantial ski industries.

David Graven sued Vail Associates, Inc. for injuries he suffered when he fell down a steeply pitched ravine adjacent to the Lower Prima run at Vail. The accident occurred on April 2, 1992. Prima is an expert, double black diamond run. Well below Prima lies Lower Prima, an intermediate access trail on the back side of Golden Peak. Lower Prima is fed by Prima, as well as other beginner and intermediate trails. Long time Vail skiers might know that a steep ravine lies immediately off the left edge of Lower Prima. However, the ravine is unmarked and the left edge of Lower Prima is well exposed to sunlight, especially in the Spring. This has the effect of causing unstable and slushy snow.

The trial court entered summary judgment against Graven, holding that, as a matter of law, the ravine into which Graven fell was an "inherent danger" of skiing within the meaning of C.R.S. sect.33-44-103(3.5). Pursuant to sect. 33-44-107(2)(d), Vail had no duty to mark the ravine or warn skiiers of the existence of the danger. Thus, recovery was barred pursuant to C.R.S. sect.33-44-112. The Court of Appeals affirmed, despite noting that the statute had "a curious Catch-22' flavor." Graven v. Vail Associates, Inc., 888 P.2d 310 (Colo. App. 1994)(The statute requires ski areas to have signs to mark dangers, but dangerous or hazardous conditions are not required to be marked).

The Colorado Supreme Court reversed, and remanded for trial. The Court adopted a narrow construction of inherent dangers and risks. The Court held that "Skiing is a dangerous sport. Ordinary understanding tells us so, and the legislature has recognized that dangers inhere in the sport. . . . Not all dangers that may be encountered on the ski slopes, however are inherent and integral to the sport, and this determination cannot always be made as a matter of law." slip op. at 14 - 15. The Court relied first upon the explicit language of the Ski Act defining inherent dangers. Secondly, the Court relied upon the legislative history of the inherent danger amendments, enacted in 1990, to reach its determination that not every danger encountered on the slope is necessarily inherent and integral to the sport.

The Ski Act defines inherent dangers as: " Inherent dangers and risks of skiing' means those dangers or conditions which are an integral part of the sport of skiing . . . " sect. 33-44-103(3.5). The Court reasoned that the inherent dangers and risks set out in the statute were intended only to describe dangers which were an integral part of skiing.

The Court drew further support, for its narrow construction of the definition of inherent risks and dangers, from the statements made by legislators during hearings on the passage of the amendments. Senator Tollman Bishop, who sponsored the 1990 amendments, stated that the amendments were not intended to "reduce the responsibilities of the ski area operators." slip op. at 8, note. 3. The Court found Senator Bishop's statements about the Supreme Court's earlier ruling in Peer v. Aspen Skiing Co., 804 P. 2d 166 (Colo. 1991) to be important. Senator Bishop stated that even under the inherent danger amendments, a four-foot drop off such as that implicated in the Peer accident would still cause ski area operators to "give some indication of caution or of where these are considered as a danger beyond that of what would be considered inherent." slip. op. at 14 note. 5. Based upon the explicit language of the Ski Act and the legislative history, the Court concluded that Graven's case must proceed to trial. The Court reasoned:

In the present case, the plaintiff describes the terrain that precipitated his injuries as a steep ravine or precipice immediately next to the ski run. This description conjures up an image of a highly dangerous situation created by locating a ski run at the very edge of a steep drop off. If such a hazardous situation presents an inherent risk of skiing that need not be marked as a danger area, the ski area operator's duty to warn under section 33-44-107(2)(d) is essentially meaningless. Therefore, we do not construe section 33-44-103(3.5) to include such a situation within the inherent dangers and risks of skiing as a matter of law.

The configuration of the terrain where the accident occurred, however, is a matter of serious dispute. The affidavit of Lawrence Lane, filed on behalf of the defendant, paints quite a different picture from that presented by the plaintiff. Lanes describes the drop off as a "snow-covered transition" off the groomed portion of the ski run and of a type commonly existing in the Vail ski area. This description suggests a relatively innocuous slope that may well be part of the inherent dangers and risks of skiing. The record contains no photograph or other objective evidence that would assist in arriving at a correct understanding of the nature of the terrain where the accident occurred. As a consequence of the conflicting descriptions of the accident area and the necessity to resolve that conflict in order to determine whether the plaintiff's injuries resulted from the inherent dangers and risks of skiing, we hold that a genuine issue of material fact exists. Summary judgment was therefore inappropriate on this issue. -slip op. at 15-16.

Justice Erickson, wrote the dissent and was joined by Justices Vollack and Kourlis. The dissent reasoned that the intent of the General Assembly was to include accidents such as Graven's within the ambit of inherent dangers. Further "the evidence before the district court at the summary motion stage established that Graven suffered his injuries from statutorily articulated inherent risks of skiing." Graven v. Vail, Dissent, slip op. at 1 (94 SC 416.)

Given the analysis of the Graven decision, lawyers now have persuasive authority with which to analyze the facts and circumstances of an accident, and thus be able to advise clients in an informed manner as to the merits of their case. An equally important issue, however, is the wisdom of the ruling, and its effect on the Colorado ski industry.