Graven v. Vail Associates, Inc.

The majority's ruling presents two immediate questions for attorneys and trial judges. First, which ski accidents are actionable ski cases under the Graven rule. Second, how are juries to be instructed in cases in which the cause of the accident is alleged to be a danger which is not "integral" to the sport, rather than a specific breach of a provision of the Ski Act.

Many lawyers recognized that the 1990 amendments to the Ski Act were subject to challenges, both as to their construction, and as to the constitutionality of the amendments. Therefore, the benchmarks for evaluating a case were twofold: first, whether the facts would form the basis for an actionable theory under the pre-1990 statute and decisions, notably Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671 (Colo. 1985); second, whether the facts and damages of the case merited a challenge to the constitutionality of the 1990 amendments to the Ski Act, or whether, as in Graven, the Court might be attracted to a narrow construction of the inherent danger provisions of the 1990 amendments. The first benchmark is still instructive, but not controlling. The second benchmark is still important, perhaps more so in view of the comments of the dissent in Graven, suggesting that frivolous lawsuits might proliferate after the decision. See, Graven v. Vail, Dissent at 9-10. The Supreme Court gave no explicit guidance for jury instructions, but it is clear that the concept of inherent dangers vs. unnecessary hazards must be given to the jury.

Brett Pizza was injured in an accident almost identical to that in Aspen Skiing Company v. Peer, 844 P.2d 166 (Colo. 1991). Pizza was skiing down Thumper at Wolf Creek. He skied over an unmarked transition, became airborne, landed on his neck and back, and was paralyzed as a result. The Supreme Court held that skiers with common law negligence claims could advance their cause, even under the regime set out in the 1979 version of the Ski Act, recognizing however that there was a presumption of non-liability which attached in favor of the ski area operator. The Court reasoned in the Pizza case that:

There is simply no indication in the statute when read as a whole, or in legislative history of the Ski Safety Act of 1979, ...which allows us to construe the presumption as requiring the skier to show anything more than evidence of the operator's negligence as outweighing the presumption that the skier was solely responsible. Rather, we construe the presumption as consistently as possible with common law principles of negligence. We therefore hold that, while the evidentiary presumption is not unconstitutionally vague, the skier has the burden of rebutting the presumption by presenting evidence of the ski area operator's negligence which outweighs the presumption of the skier's sole negligence. . . .Where the injury is related to a variation in the slope's terrain, the trial court was correct in instructing the jury that the ski area operator only owes a duty of reasonable care to the skier. Pizza v. Wolf Creek Ski Development Corp., 711 P.2d at 677, 684 (Colo. 1985)

Now under the Graven decision, a determination must be made, essentially in accord with the reasoning of the court in Clover v. Snowbird Resort, supra note 1. "[i]f an injury was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not, in the ordinary sense of the term, an inherent risk of skiing and would fall outside" the ambit of inherent risks set out in the Utah's Inherent Risks of Skiing Act. Utah Code Ann. 78-27-51 -54; Clover v. Snowbird Resort, supra at 1047. In the words of one thoughtful trial judge who was confronted with the decision in Graven, while a motion to dismiss was pending:

Thus, the Colorado Supreme Court without labeling the determination of the "integral" part of skiing as a duty analysis, has added a new duty for ski area operators -- i.e. whether the ski area operator using reasonable care could have eliminated the "inherent danger or risk" of skiing, in determining whether the dangers and risks are integral. - ORDER Dovey et al. v. Victoria Breckenridge Corporation, 95 CV 1153 (Denver District Court, January 3, 1996)

For further guidance, other jurisdictions have decided that not all conditions encountered while skiing are inherent dangers or risks to the sport. In Mead v. M.S.B., Inc. supra, note 1, the Montana Supreme Court found that a rock outcropping on the edge of an open, expert trail, and which struck the plaintiff's knee, was not an inherent danger as a matter of law. In Frant v. Haystack Group, Inc., supra, note 1, the Vermont Supreme Court found that a 4" X 4" fence post supporting a rope lift maze was not a danger inherent in the sport, and that a jury should have been permitted to hear evidence of safer alternatives to the post such as "forgiving" plastic or padded posts to reduce the hazard. While the Utah Supreme Court has ruled that an unmarked catwalk is not an inherent danger as a matter of law, in the case of White v. Deseelhorst, supra, note 1. Corey White became paralyzed in an accident eerily alike to the cases of Brett Pizza and Les Peer. White came over an unmarked transition road cut into a slope, became airborne, rotated head over heels, and landed on his neck, becoming paralyzed.

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