A judge Wednesday dismissed a local man’s negligence lawsuit against the Aspen Skiing Co. and the Aspen Valley Ski and Snowboard Club, ruling that the skier’s injuries on Aspen Mountain in 2015 fell within the section of the Colorado Ski Safety Act that pertains to inherent risks.
David Bruce sued the company and nonprofit organization in 2017 after he struck a bundle of rolled-up fencing on the Little Nell run, the intermediate trail directly above the base area. Individuals associated with SkiCo and AVSC were “milling around on the run without any sort of demarcation or warning, apparently waiting for … an event” that Bruce was not participating in, wrote his attorney, Michael O’Connell of Golden, in the lawsuit.
Bruce was under control when he skied around the group, went over a small rise and “struck a rolled-up object laying in the snow” that apparently was to be part of an event, the lawsuit said. “[It] was not visible to the plaintiff until he was virtually on top of it. … To the unsuspecting skier, the object was an obstacle, of unknown purpose, all but invisible [and] placed directly in his path.”
The lawsuit did not identify the alleged injuries of Bruce, who was skiing alone on his first run of the day. Messages left with O’Connell were not returned this week.
The litigation was remarkable for its few filings. SkiCo moved to dismiss the lawsuit, with the defendants’ attorney, Brian Birenbach of Dillon, writing that Bruce’s argument “sidesteps the singular” issue: whether the section of the Ski Safety Act (SSA) that defines “inherent dangers and risks of skiing,” which includes impacting fences and “manmade structures and their components,” encompassed the plaintiff’s encounter with rolled-up fencing.
The SSA section in question “explicitly defines the inherent dangers and risks of skiing to include ‘impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes or other manmade structures and their components,” Birenbach wrote.
O’Connell in March slammed the motion to dismiss, writing that the SkiCo based its argument for dismissal of the lawsuit “on the supposition that a hidden, unavoidable, rolled-up object, negligently left in the path of a downhill skier is an inherent risk of skiing.
“Inherent is defined in the strangely titled Colorado Ski Safety Act (having nothing to do with safe skiing) as … ‘those dangers or conditions that are part of the sport of skiing,’” says the response opposing the motion to dismiss. “Defendants … fail to explain how a rolled-up fence, in a blind spot, in the path of skiers, negligently left there, is an inherent danger of skiing.”
O’Connell, further on in the dismissal motion, wrote that SkiCo’s position seems to be that “anything happening on a ski slope is granted blanket immunity from liability.
“If a hole was dug in the snow and left open, it would be inherent because it involved snow,” he wrote. “If all of the fluorescent markers were painted white, it would be inherent because they are markers. Obviously, this is absurd.”
Judge John Neiley of Pitkin County District Court disagreed, finding that “Bruce’s claimed injury” — the extent of his alleged injuries were not identified in the lawsuit — “falls within the definition of the ‘inherent dangers and risks of skiing,’ which provides immunity to [SkiCo] under the SSA.”
The Skier Safety Act recognizes that there are inherent dangers in skiing, “regardless of any and all reasonable safety measures which can be employed” by ski-area operators, the ruling says. “It therefore provides a certain level of immunity for ski-area operators by stating that ‘no skier may make any claim against or recover from any ski-area operator for injury resulting from any of the inherent dangers and risks of skiing.’”
The SSA “expressly includes collisions or impacts with ‘fences’ as one of the inherent dangers and risks of skiing in addition to the more generic ‘manmade structures and their components,’” Judge Neiley wrote. “The term ‘fences’ is not ambiguous. A rolled-up bundle of fencing is still a fence. It is also a manmade object” that any skier or snowboarder can reasonably expect to encounter on open portions of in-bounds ski areas.