District Court, Eagle County, Colorado DATE FILED: April 14, 2017

CASE NUMBER: 2015CV15

885 Chambers Avenue
P.O. Box 597
Eagle, Colorado 81631

Plaintiff:
LOUISE H. INGALLS and STEPHEN E. CONLIN,
individually, and as surviving parents of TAFT M.
CONLIN
COURT USE ONLY
v.
Case No.: 2015 CV 15
Defendant:
THE VAIL CORPORATION Div.: 4

ORDER RE: DEFENDANTS MOTION FOR DETERMINATION OF MATTERS OF

LAW

THIS MATTER is before the District Court for Eagle County, Colorado, on Defendant

The Vail Corporations (Vail) Motion for Determination of Matters of Law. The Court finds as

follows.

STANDARD OF REVIEW

C.R.C.P. 56(h) provides that:

At any time after the last required pleading, with or without supporting affidavits,
a party may move for determination of a question of law. If there is no genuine
issue of any material fact necessary for the determination of the question of law,
the court may enter an order deciding the question.

The purpose of this rule is to allow a court to address issues of law which do not decide the claim

but which will have a significant impact upon the manner in which the litigation proceeds. In re

Bd. of County Commissioners of County of Arapahoe, 891 P.2d 952, n. 14 (Colo. 1995). A court

may make such a determination of law only if no determination of a genuine issue of fact is

required to do so.
 BACKGROUND

In January 2012, Taft Conlin (Taft) was skiing Prima Cornice at Vail with multiple

friends. Two different Gates provide access to this trail an Upper and a Lower Gate. The

Court concludes there is no dispute that the Upper Gate was closed, but the Lower Gate was

open.

Prima Cornice is not so much a traditional ski trail, but it is what its name suggests - a

ridgetop with a skiable area below it. Both the Upper and Lower Gates are on this ridgetop, with

the same general open area served through both Gates.

Taft skied Prima Cornice numerous times throughout the day with multiple friends. The

record before the Court is unclear on whether Taft, or his friends exclusively, used the Lower

Gate on the day in question. On his final trip, Taft entered through the Lower Gate with

apparently four other friends. Two friends descended directly into the ski terrain, while Taft and

two others then hiked laterally and vertically into the area below the closed Upper Gate. An

avalanche occurred in this area, and Taft was found deceased.

Several important factual issues are worth noting. First, there is a material dispute as to

whether Vail was aware that skiers would use the Lower Gate to access parts of Prima Cornice

closer to the Upper Gate on the day in question. Second, Prima Cornice is designated as a single

trail on Vails maps. Third, there was less than one hundred vertical feet difference between the

Upper and Lower Gate. Fourth, Prima Cornice, or at least a part of it, was designated as open on

the day of the avalanche.

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 ANALYSIS

Vail presents two arguments. First, Vail argues that the result of Fleury v. Intrawest

Winter Park Ops. Corp., 372 P.3d 349 (Colo. 2016) governs the result here. Second, Vail asks

the Court to interpret the signage requirements of the Ski Safety Act (SSA), C.R.S. 33-44-

101, et seq.

I. Fleury

In Fleury a skier was killed by an in-bounds avalanche. The Supreme Court determined

that an in-bounds avalanche is an inherent risk of skiing for purposes of the SSA, and that a ski

area is not liable for injuries resulting from an in-bounds avalanche. Vail argues that this holding,

made pursuant to C.R.S. 33-44-112, governs the result in the present case.

Fleury is factually distinguishable. In Fleury, Winter Park left the trail in question open

despite an avalanche warning. In the present case, however, Vail closed one Gate to an area that

could be, and was, accessed from another Gate to the same area that Vail left open. This is a

critical difference, and Fleury does not necessarily apply under these circumstances.

The Court does not view this as a matter of simply whether an in-bounds avalanche is an

inherent danger. 1 With the record as it currently exists, a jury could find that Vail intended to

close Prima Cornice, but did not do so it left an entrance open, through which access to the

entirety of Prima Cornice remained not only possible but predictable. Instead, this is possibly an

issue of signage, and it is thus necessary to examine the signage requirements of the SSA.

1
The Court also notes that, if Vails intent was to close Prima Cornice, or at least a part of it, the avalanche in this
case may not have been in-bounds ducking the ropes is, at least arguably, skiing out of bounds.

3
 II. The SSAs Signage Requirements

C.R.S. 33-44-107(4) provides as follows:

If a particular trail or slope or portion of a trail or slope is closed to the public by a

ski area operator, such operator shall place a sign notifying the public of that fact
at each identified entrance of each portion of the trail or slope involved.
Alternatively, such a trail or slope or portion thereof may be closed with ropes or
fences.

A slope or trail is defined by C.R.S. 33-44-103(9). Without reciting the statutory language,

these terms generally include any in-bounds skiable areas.

This statutory language is plain. See, e.g., People v. Crouse, 388 P.3d 39, 43 (Colo.

2017). If a ski area decides to close a trail, it has the option of either placing a sign about the trail

closure at each entrance or roping the area off.

Here, Prima Cornice had two separate entrances on a ridgetop. These entrances were

separated by about five hundred feet horizontally, and a lesser distance vertically. There is

evidence to suggest that, although the Upper entrance was closed, Vail was aware that the entire

Prima Cornice trail or slope could be, and regularly was, accessed via the Lower entrance. There

is evidence to suggest that, despite this knowledge, Vail did not close off access to the entirety of

Prima Cornice from the Lower Gate.

Vail argues that its closures are discretionary. The Court agrees that trail closures are

discretionary under the SSA, and that, at least in a general sense, there cannot be recovery for a

trail that should have been closed but was not, with a resulting injury from an inherent danger

such as an avalanche. Nevertheless, the situation in this case may be different: evidence in the

record suggests that, rather than not warning of avalanche danger or simply leaving a trail open,

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Vail intended to close Prima Cornice or at least a portion thereof (Upper Gate), but did not

properly place signage to this effect at all of the identified entrances (Lower Gate) to the trail.

Vail also argues that only a ski area can determine an identified entrance for purposes

of C.R.S. 33-44-107(4). The Court does not find it necessary to resolve this argument in this

particular case. As stated earlier, there is a factual dispute as to whether Vail was aware that

skiers would hike or ski the entirety of Prima Cornice from the Lower entrance. 2 If the jury finds

that Vail was aware of this practice, and because the entirety of Prima Cornice is identified as a

single trail, the jury is also welcome to find that Vail at the least tacitly condoned this access; in

light of such findings, a jury could also fairly conclude that the Lower entrance was an

identified entrance to the area below the Upper entrance. Accordingly, a jury could also find

that Vail was required to indicate, at the Lower Gate, that the area below the Upper Gate was

closed. If a jury makes all of these prerequisite findings, liability could attach under C.R.S. 33-

44-104(2).

This is not necessarily a case of an arguably-negligent failure to close a trail upon which

there was an avalanche, which would be barred by Fleury. Rather, this may be a case of an intent

to close a trail, with the public not being properly notified through signage at identified

entrances. Although the former is not actionable, the latter may be pursuant to C.R.S. 33-44-

107(4) and 33-44-104(2).

2
The Court also notes that this is not a case of a skier hiking back up a steep trail from a Lower entrance, which
would be both unreasonable and unforeseeable. Instead, as regards Prima Cornice, it appears that a hike back up
from the Lower entrance would be a short distance across the ground, and an even shorter vertical distance; it also
appears possible to ski from the Lower entrance into the area beneath the Upper entrance.

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 The Court notes Vails arguments on absurd results. The Court also notes that, arguably,

an incentive could exist for ski areas to simply leave all of their trails open all of the time. 3

Nevertheless, the General Assemblys clearly-expressed intent is that ski areas place accurate

signage regarding closures, and that ski areas are liable for injuries from a failure to do so. The

Court does not find this to be so absurd as to require a reconciliation between the two, arguably

situationally inconsistent, components of the SSA. In re Marriage of Dureno, 854 P.2d 1352,

1355 (Colo. App. 1992) (courts to attempt to reconcile statutes to avoid absurd results). Instead,

the Court finds that, inherent dangers notwithstanding, if a trail or portion thereof is closed, a ski

area must accurately place signage signaling such intent. 4

Finally, the Court notes that, although an inbounds avalanche now appears be an inherent

danger of skiing as a matter of law; inaccurate, improper, or never-placed signage regarding trail

closures is not. See generally C.R.S. 33-44-103(3.5). The General Assembly has recognized as

much by allowing liability for the latter, while providing immunity for the former.

CONCLUSION

Regarding Fleury and the Ski Safety Act, the Court finds as follows:

1. Unless a jury finds that Taft Conlins injuries were exclusively the result of an in-
bounds avalanche, which would constitute an inherent danger of skiing, Fleury is
distinguishable and does not apply; and

2. If a jury finds that Vail intended to close Prima Cornice or a portion thereof, and
that Vails signage was insufficient or improper under the SSA, a verdict in favor
of Plaintiffs may be possible.

3
Looking beyond the legal realm, however, word would quickly spread in the skiing community. Realistically,
simply leaving all trails open all the time is not a likely option.
4
The Court notes the importance of accurate signage at a ski area. A lack of accurate signage could affect anything
from trail closures to emergency responders attempts to locate an injured skier. Thus, accurate signage is of great
public importance, and the Court does not find it unreasonable for the General Assembly to impose liability for
inaccurate signage.

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Done this 14th day of April, 2017.