Denver, CO – On Tuesday, Colorado’s highest court heard arguments surrounding whether or not a ski resort has a responsibility to skiers to eliminate avalanches within its boundaries, in a case likely to have weighty implications on Colorado’s Ski Safety Act.

The case against Winter Park Resort operator Intrawest was filed in May of 2012 by the family of Christopher Norris. Norris was 28 when he died in an in-bounds avalanche in the woods off Winter Park’s expert Trestle run in January of that year. The lawsuit alleged that despite detailed warnings issued by the Colorado Avalanche Information Center, employees at the Winter Park resort failed to take action necessary to prevent Norris from entering an area susceptible to avalanches and therefore unsafe for skiing.

Winter Park Ski Patrol deemed the Trestle run safe that day and opened it for skiing. Norris’ widow, Salynda Fleury, claimed that Winter Park should have closed off the trees adjacent to Trestle, where the small 40-foot wide, 60-foot long slide that buried Norris occurred.

Two lower courts have already sided with Intrawest. Grand County District Court Judge Mary Hoak dismissed the lawsuit after finding that avalanches are an inherent risk of skiing as defined by the Colorado Ski Safety Act, which requires skiers to assume some liability for their own actions and limits resort liability to $250,000 in damages.  She also found that a ski resort only has to open and close marked runs, not treed areas on the mountain.

In February 2014, the Colorado Court of Appeals affirmed Hoak’s decision. In writing for the majority, Judge Terry Fox found that “an avalanche falls neatly into the examples of dangers in the (Ski Safety) Act,” adding that, “We see nothing in the Act to support Ms. Fleury’s interpretation that Intrawest was required to close Trestle Trees or post warning signs, notwithstanding the fact that Intrawest may have had the ability to do so. The Act enumerates specific sign requirements and does not require ski area operators to warn skiers of possible avalanches or to close slopes with avalanche danger. Therefore, Intrawest was under no duty to post a warning sign at, or to close, Trestle Trees on January 22, 2012.”

Last December, the Colorado Supreme Court agreed to hear an appeal filed by the Plaintiffs, and Justices on Tuesday grilled attorneys from both sides. Norris family attorney James Heckbert of Steamboat Springs, who also represents the family of 13-year-old Taft Conlin who died in an avalanche in a closed area at nearby Vail Mountain the same day, said that ski resorts have intimate knowledge of where avalanches occur, and therefore have a duty to protect skiers from them. He’s also seeking damages in excess of the $250,000 cap stipulated by the Colorado Ski Safety Act of 1979

Defense attorneys representing Intrawest argued that while the Ski Safety Act does not specifically reference avalanches, it does define steep terrain, changing weather and snow as risks inherent to skiing, all of which are factors that lead to avalanches. They argued that had the Colorado legislature meant to exclude avalanches from risks inherent to skiing, they would have expressly said so in the law.

Much of Tuesday’s hearing focused on the meaning of the word “including” that appears in the Ski Safety Act when listing the risks inherent to skiing. Heckbert argued that the use of the word connotes exclusivity, while defense attorneys took issue with that construction, indicating that the word “including” is a means of providing non-exclusive examples. Of note, the phrase “but not limited to” was eliminated from the Act in a 1990 amendment.

The Supreme Court’s decision on the appeal is expected to take several months, and the separate case of Conlin against Vail Resorts is being held in abeyance pending its outcome.