David E. GRAVEN, Petitioner, v. VAIL ASSOCIATES, INC., Respondent.
No. 94SC416.
Supreme Court of Colorado, En Banc.
Dec. 18, 1995.
As Modified on Denial of Rehearing Jan. 16, 1996.
909 P.2d 514
White & Steele, P.C., John M. Lebsack, Glendon L. Laird, Peter W. Rietz, Monty L. Barnett, Denver, for Respondent.
White & Steele, P.C., Peter W. Rietz, Denver, for Amicus Curiae Colorado Ski Country USA.
Melanie Dummer Mills, Denver, for Amicus Curiae Colorado Ski Country USA.
Justice LOHR delivered the Opinion of the Court.
I.
The plaintiff, David E. Graven, suffered extensive injuries as a result of a skiing accident that occurred at a ski area owned and operated by the defendant, Vail Associates, Inc. In his complaint, the plaintiff described himself as a “good skier” and alleged that on April 3, 1992, he was skiing with companions on a run unfamiliar to him and designated “more difficult.” He “moved toward the far left side of the ski run and began stopping in order to wait for his Companions.” As he “was coming to a complete stop, he came upon some slushy snow and lost his edges, fell down, slid several feet, then plunged forty-fifty feet down an unmarked steep ravine or precipice (Steep Ravine).” He was “unable to stop until colliding with a cluster of trees at the bottom of the Steep Ravine.” Graven alleged that the steep ravine or precipice was “immediately next to” the ski run and that his injuries resulted from the defendant‘s failure to warn of a known dangerous condition.
The defendant moved for summary judgment, asserting that the plaintiff‘s claims are legally barred by the Ski Safety Act of 1979,
The tree about which David Graven injured himself is off of the ski trail known as “Prima.” There is a snow-covered tran-
sition which is off of the groomed portion of Prima which Graven went through before striking a tree in a naturally forested area. The area and the trees that David Graven complains about represent natural terrain features as well as a variation in terrain as a result of natural conditions, slope design and grooming operations.
The plaintiff then filed his own affidavit in which he described the accident area as follows:
The area where I was injured was off the ski run known as “Lower Prima.” The accident occurred on the side of the ski run, after I had left a transition area. When attempting to stop at the side of the ski run, I fell down a 40 to 50 foot precipice.
Notwithstanding the differences between the descriptions of the accident scene as set forth in the affidavits, the district court granted summary judgment for the defendant. The court held that the plaintiff‘s injuries were caused by “inherent dangers and risks of skiing,” as defined by
II.
A.
This case is before us for review of a grant of summary judgment for the defendant. “Summary judgment is a drastic remedy and is never warranted except on a clear showing that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
B.
A review of the statutory structure and relevant provisions of the Ski Safety Act will provide necessary background for evaluation of the propriety of summary judgment.
The Ski Safety Act was enacted in 1979 to establish reasonable safety standards and to define the relative rights and responsibilities of ski area operators and skiers. The legislative declaration provides:
The general assembly hereby finds and declares that it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them. Realizing the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed, the purpose of this article is to supplement the passenger tramway safety provisions of part 7 of article 5 of title 25, C.R.S.; to further define the legal responsibilities of ski area operators and their agents and employees; to define the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.
As originally enacted, the Ski Safety Act identified several specific duties owed to ski patrons by ski area operators,
The General Assembly amended the Ski Safety Act in 1990. These amendments were intended to clarify the law regarding the duties and responsibilities of skiers and ski area operators and to provide additional protection for ski area operators. See Ch. 256, sec. 1, Legislative Declaration, 1990 Colo. Sess. Laws 1540.3 Consistent with the legislature‘s limited purposes, the 1990 amendments did not alter the duties of ski area operators specifically identified in the origi-
As it exists today, the Ski Safety Act, which retained the title “Ski Safety Act of 1979,” contains the following provision with respect to the negligence of ski area operators:
A violation by a ski area operator of any requirement of this article ... shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.
One such requirement is that ski area operators post warning signs with respect to danger areas. Specifically,
Each ski area operator shall maintain a sign and marking system as set forth in this section.... All signs required by this section shall be maintained so as to be readable and recognizable under conditions of ordinary visibility.
The statute then provides for signs marking “danger areas,” as part of the sign and marking system, as follows:
Danger areas, designated by a red exclamation point inside a yellow triangle with a red band around the triangle and the word “Danger” printed beneath the emblem. Danger areas do not include areas presenting inherent dangers and risks of skiing.
Another provision of the Ski Safety Act precludes skiers from making a claim for injury resulting from “the inherent dangers and risks of skiing.”
Notwithstanding any judicial decision or any other law or statute to the contrary ... 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.
(Emphasis added.)
A ski area operator, therefore, need not post warning signs concerning any danger areas that present “inherent dangers and risks of skiing,” and no skier can recover from a ski area operator for injuries resulting from such dangers and risks.
In evaluating a claim for negligence against a ski area operator, the foregoing statutory provisions make it essential to determine whether the injuries upon which the claim is based resulted from “inherent dangers and risks of skiing.” The General Assembly has specifically defined that term in
As used in this article, unless the context otherwise requires:
. . . .
(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions which are an integral part of the sport of skiing, including4 changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking orgrooming operations, including but not limited to roads and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104(2) . Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.
We must determine the scope of the definition of “inherent dangers and risks of skiing” and the applicability of that term to the events and terrain conditions upon which the plaintiff bases his claim in order to assess the propriety of summary judgment in this case.
C.
The definition of “inherent dangers and risks of skiing” is limited to “those dangers or conditions which are an integral part of the sport of skiing.” It specifically includes “slush,” “trees,” and “variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modifications.”
The defendant contends, and the court of appeals concluded, that because slush, terrain variations, and trees were implicated in the plaintiff‘s skiing accident, the accident necessarily resulted from “inherent dangers and risks of skiing.” We disagree. Under the court of appeals’ interpretation, any type of terrain variation wherever located falls within the definition of “inherent dangers and risks of skiing.” However, the definitional language of
The prefatory language of the definition of “inherent dangers and risks of skiing” is also important in determining the nature of terrain variations included within that definition. This is so because when interpreting a statute, we must read and interpret the language “so as to give consistent, harmonious, and sensible effect to all of its parts.” People v. Andrews, 871 P.2d 1199, 1201 (Colo.1994) (emphasis added). The dangers and risks detailed in
The legislative history of the 1990 amendments is also consistent with a more narrow construction of “inherent dangers and risks of skiing.” The scope of the phrase “variations in steepness or terrain” was addressed in hearings before the House State Affairs Committee. Harris Sherman, representing amendment proponent Colorado Ski Country USA, explained “variations in steepness or terrain” as follows:
Skiers encounter terrain changes, a trail turning to the right or left, or a trail dipping, and a skier going too fast out of control will fall, and instead of looking to himself will sue the ski areas.
Hearings on S.B. 80 Before the House State Affairs Committee, 57th Gen. Assembly, 2d Reg. Sess., March 13, 1990, Audio Tape No. 90-18. The 1990 amendments were not presented as including precipices or ravines located outside skiable areas within the scope of the phrase “variations in steepness or terrain.”5
Skiing is a dangerous sport. Ordinary understanding tells us so, and the legislature has recognized that dangers inhere in the sport. See
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. Lane describes the dropoff 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.
III.
Disputed questions of material fact also remain concerning the issue of proximate cause. The slush, the trees, the ravine or precipice, and the defendant‘s failure to post warning signs were all alleged to have contributed to the accident that led to the plaintiff‘s injuries. To establish causation, the plaintiff must prove that the defendant‘s conduct was a substantial contributing cause of the injury. Rupert v. Clayton Brokerage Co., 737 P.2d 1106, 1112 (Colo.1987). Where an injury results from the combined negligence of the defendant and other factors, the injury is attributable to the defendant if the injury would not have occurred in the absence of the defendant‘s negligence. See id.; Carlock v. Denver & Rio Grande R.R., 55 Colo. 146, 150, 133 P. 1103, 1105 (1913); see also Restatement (Second) of Torts §§ 431, 432(2) (1965). Where, as here, various factors are alleged to have contributed to the
IV.
The plaintiff also asserts that the trial court erred when it held that the plaintiff‘s injuries resulted from the plaintiff‘s failure to ski within his own ability. Based on its determination that the plaintiff‘s injuries resulted from other inherent dangers and risks of skiing, the court of appeals declined to address this issue. Graven, 888 P.2d at 316. We now hold that determination of this question requires the resolution of material questions of fact. The defendant presented no information in its affidavit relating to the plaintiff‘s skiing ability or his alleged failure to ski within that ability. Accordingly, this issue is also inappropriate for summary judgment and must be determined by a finder of fact.
V.
For the foregoing reasons, we reverse the judgment of the court of appeals and remand for further proceedings consistent with this opinion.
ERICKSON, J., dissents, and VOLLACK, C.J., and KOURLIS, J., join in the dissent.
Justice ERICKSON dissenting:
I respectfully dissent.
In Graven v. Vail Associates, Inc., 888 P.2d 310 (Colo.App.1994), the court of appeals affirmed the trial court‘s entry of summary judgment in favor of Vail Associates (Vail), holding that the Ski Safety Act of 1979, as amended in 1990,
I
The Colorado Ski Safety Act defines the responsibilities of both skiers and ski area operators.
Notwithstanding any judicial decision or any other law or statute to the contrary, ... no skier may make any claim against or recover from any ski area operator for injury resulting from the inherent dangers and risks of skiing.
Graven filed an action to recover damages for injuries sustained in a skiing accident on the Vail ski slopes on April 3, 1993. His complaint alleges that:
As [he] was coming to a complete stop, he came upon some slushy snow and lost his edges, fell down, slid several feet, then plunged forty-fifty feet down an unmarked steep ravine or precipice (“Steep Ravine“) unable to stop until colliding with a cluster of trees at the bottom of the Steep Ravine.
Graven claimed that Vail‘s failure to warn him of the dangerous conditions he encountered constituted negligence. Vail moved for summary judgment on the grounds that the
The Ski Safety Act defines inherent risks as:
[T]hose dangers or conditions which are an integral part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.
The trial court held that the Ski Safety Act barred Graven‘s claim as a matter of law because his injuries were caused by inherent risks of skiing: specifically, the slushy snow, the ravine, the trees, and the failure to ski within his own abilities. Accordingly, the trial court granted Vail‘s motion for summary judgment.
The court of appeals affirmed, holding that the ravine into which Graven fell presented a “variation in steepness or terrain” and met the statutory definition of an inherent risk of skiing. The court concluded that because Graven suffered his injuries from inherent risks of skiing, Vail did not owe Graven a duty to post a sign warning of the ravine. The court declined to reach the issue of whether Graven failed to ski within his own abilities.
II
The majority reverses the trial court‘s entry of summary judgment in favor of Vail, concluding that the statutorily identified inherent risk of “variations in steepness or terrain” is limited to those changes occurring within skiable areas and does not include terrain changes encountered adjacent to ski runs. Maj. op. at 519. The majority‘s interpretation of the definitional language “derives from the legislature‘s references to the source of variations ‘as a result of slope design’ and of ‘snowmaking or grooming operations,’ situations to be encountered within the areas intended for skiing.” Id.
In my view, the majority employs a restrictive reading of the definitional language of
Graven‘s complaint and affidavit indicate that he fell down a ravine or precipice located next to the ski run. A ravine or precipice refers to a drop-off that is a variation in steepness or terrain. Under the plain word-
The majority states that the legislative history of the 1990 amendment is consistent with a narrow construction of inherent risks that limits variations in steepness or terrain to those changes that occur within skiable areas. See maj. op. at 519-520. However, portions of the legislative history support the contrary conclusion that the definition of inherent risks included variations in steepness or terrain such as a ledge or a ravine that could cause serious bodily injury. During the legislative debates on Senate Bill 80, the bill ultimately adopted as the 1990 amendment to the Ski Safety Act, those opposed to the bill presented a document entitled “Reasons for Opposition to S.B. 80.” Under a subheading entitled “Accident/Injuries which will not be Covered if S.B. 80 Passes,” the following example appeared:
Skier injured when he/she strikes unmarked ledge. (ACTUAL CASE)1
NO RECOVERY
Reason: Variations in terrain (even man made) are inherent dangers.
Legislative Summary of Hearings on S.B. 80 Before the Senate State Affairs Committee, 57th Gen. Assembly, 2d Reg. Sess., Jan. 30, 1990, Attachment A (emphasis in original). Because the legislative history offers conflicting interpretations as to what risks were included within the meaning of variations in steepness or terrain, I do not find it helpful in interpreting the plain language of the statute.
In determining the scope of the definition of inherent risks of skiing, the majority states:
The dangers and risks detailed in
section 33-44-103(3.5) are intended to describe those “which are an integral part of the sport of skiing.” The detailed listing of dangers and risks must be read with that intent and limitation in mind. Accord Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1044-45 (Utah 1991) (distinguishing between risks on the basis of whether they are an integral part of the sport of skiing).
Maj. op. at 519. The majority‘s interpretation requires a determination under the facts of each case as to whether the encountered inherent risk is one that is an “integral part of the sport of skiing.” In my view, the legislative intent and the plain wording of the 1990 amendment to the Ski Safety Act do not warrant such an interpretation.
The majority follows the approach taken by the Utah Supreme Court in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991) (interpreting Utah‘s Inherent Risk of Skiing Act, Utah Code Ann. §§ 78-27-51 to 54 (1992 & 1995 Supp.) (Utah Act)).2 The Utah Supreme Court held that because the list of inherent dangers in the Utah Act is “expressly nonexclusive,” the determination of whether an inherent risk is an “integral part of the sport of skiing” must be made on a case-by-case basis. Clover, 808 P.2d at 1044-45. Unlike the Utah Act, the Colorado Ski Safety Act‘s list of inherent risks does not contain express language of limitation. See
The plain language of the Colorado Act demonstrates that the General Assembly specifically identified a list of the inherent risks of skiing and intended that those inherent risks are per se “an integral part of the sport of skiing.” The General Assembly enacted the 1990 amendment in response to the threat posed to ski area operators by an escalating numbers of claims for personal injuries sustained by skiers.4 The 1990 amendment clarified the law by precisely defining the inherent risks of skiing, but its primary purpose was to alter ski resort liability by prohibiting recovery for injuries resulting from those inherent risks.5 The case-by-case approach adopted by the majority will effectively frustrate the legislative intent of the 1990 amendment because it allows a skier who was injured by statutorily identified inherent risks to avoid summary judgment merely by alleging that the inherent risk encountered was not “an integral part of the sport of skiing.”
In granting summary judgment in favor of Vail, the trial court held that the facts established that Graven‘s injuries were caused by slushy snow, the ravine, trees, and the failure to ski within one‘s own abilities. Vail presented the affidavit of Lawrence Lane which described the accident area as a “snow covered transition” off of the groomed portion of the ski run which presented “a variation in terrain as a result of natural conditions, slope design, and grooming operations.” In opposition, Graven filed an affidavit stating: “The accident occurred at the side of the ski run, after I had left a transition area. When attempting to stop at the side of the ski run, I fell down a 40 to 50 foot precipice.”
Vail‘s motion for summary judgment and accompanying affidavit tracked the language of the Ski Safety Act, stating that Graven‘s suffered his injuries as a result of inherent risks, specifically, slush, a variation in steepness or terrain, and trees. Graven‘s description of the accident site as a ravine and a precipice did not refute Vail‘s showing that
I am authorized to say that Chief Justice VOLLACK and Justice KOURLIS join in this dissent.
Justice LOHR
Justice of the Supreme Court of Colorado