Filed: Jul. 27, 2011
Latest Update: Feb. 22, 2020
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS July 27, 2011 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court RAJEEV KUMAR, M.D., Plaintiff–Appellant, v. No. 09-1559 (D.C. No. 1:07-CV-02597-PAB-MEH) COPPER MOUNTAIN, INC., a Delaware (D. Colo.) corporation, doing business as Copper Mountain Resort, Defendant–Appellee. ORDER AND JUDGMENT* Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges. Dr. Rajeev Kumar appeals the district court’s grant of summary judgment
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS July 27, 2011 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court RAJEEV KUMAR, M.D., Plaintiff–Appellant, v. No. 09-1559 (D.C. No. 1:07-CV-02597-PAB-MEH) COPPER MOUNTAIN, INC., a Delaware (D. Colo.) corporation, doing business as Copper Mountain Resort, Defendant–Appellee. ORDER AND JUDGMENT* Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges. Dr. Rajeev Kumar appeals the district court’s grant of summary judgment ..
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 27, 2011
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
RAJEEV KUMAR, M.D.,
Plaintiff–Appellant,
v. No. 09-1559
(D.C. No. 1:07-CV-02597-PAB-MEH)
COPPER MOUNTAIN, INC., a Delaware (D. Colo.)
corporation, doing business as Copper
Mountain Resort,
Defendant–Appellee.
ORDER AND JUDGMENT*
Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.
Dr. Rajeev Kumar appeals the district court’s grant of summary judgment favoring
Copper Mountain, Inc. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
On March 16, 2006, Kumar was skiing at Copper Mountain ski resort in an area
* This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 32.1.
where an “intermediate” run called Timber Ridge converged with two “expert” runs
known as Retreat and Gold Digger. Near the intersection, snow naturally accumulates to
form a feature referred to as “Celebrity Cornice.” As Kumar approached Celebrity
Cornice he apparently did not see the edge of the drop-off. He unintentionally skied off
of the cornice, fell, and suffered serious injuries as a result.
Although Copper Mountain employees knew of Celebrity Cornice, it was not
marked on trail maps given to skiers by the resort. Instead, “Celebrity Cornice” appears
to be a name informally adopted by skiers and ski patrol personnel. The parties dispute
whether the cornice was marked such that approaching skiers would have been made
aware of its presence on the day of the accident. It is undisputed, however, that Celebrity
Cornice and the trails on which it was located were not marked as “freestyle terrain.”
Kumar sued Copper Mountain, alleging negligence and negligence per se. He
claims that Copper Mountain is liable under the common-law doctrine of assumed duty
for failing to adequately mark Celebrity Cornice, and that Colorado’s Ski Safety Act
(“SSA”) required Copper Mountain to mark Celebrity Cornice as “freestyle terrain.” The
district court granted summary judgment in favor of Copper Mountain. Kumar now
appeals.
II
We review the district court’s grant of summary judgment de novo. Shero v. City
of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007). Summary judgment is appropriate if
“there is no genuine dispute as to any material fact and the movant is entitled to judgment
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as a matter of law.” Fed. R. Civ. P. 56(a).
A
The purpose of the SSA is “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.” Colo. Rev. Stat. § 33-44-102. To this end the
SSA provides: “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.” § 33-44-112.
However, the SSA further states: “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.” § 33-44-104(2). The
definition of “inherent risks and dangers of skiing” specifically excludes “the negligence
of a ski area operator as set forth in section 33-44-104(2).” § 33-44-103(3.5).
Accordingly, a ski area operator may be liable under one of two theories. First, a
skier may recover if his injury did not result from an inherent danger or risk of skiing.
Such a claim would fall outside the scope of the SSA and would be governed by
common-law negligence principles. See Graven v. Vail Assocs., 909 P.2d 514, 520
(1995), partially abrogated on other grounds by Colo. Rev. Stat. § 33-44-112. Second, a
ski area may be liable because it violated a provision of the SSA and that violation
resulted in injury.
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Kumar asserts claims under both theories of liability.
B
We first consider whether the SSA precludes Kumar’s common-law negligence
claim. Under the express language of the SSA, the Act preempts the common law with
respect to “any claim . . . for injury resulting from any of the inherent dangers and risks
of skiing.” § 33-44-112. The SSA defines the phrase “inherent dangers and risks of
skiing” to mean:
those dangers or conditions that are a 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, cliffs, extreme terrain, and trees,
or other natural objects . . . ; variations in steepness or terrain, whether natural or
as a result of slope design, snowmaking or grooming operations, including but not
limited to roads, freestyle terrain, jumps, and catwalks or other terrain
modifications . . . .
§ 33-44-103(3.5).
We conclude that the cornice at issue falls within the statutory definition of an
inherent danger. At a minimum, it either falls within the section relating to snow
conditions as they exist or change, or the provision covering variations in steepness or
terrain.1
1
Kumar relies on Graven, 909 P.2d at 519, for the proposition that there is a
question of fact as to whether Celebrity Cornice is an inherent danger. This reliance is
ill-founded. In 2004, the Colorado legislature partially abrogated Graven by expanding
the definition of “inherent dangers and risks of skiing.” Compare
Graven, 909 P.2d at
519 (discussing the prior version of the statute, which limited the definition to “those
Continued . . .
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Having concluded that the cornice falls within the SSA’s definition of an “inherent
danger,” it follows that the SSA abrogates the common law with respect to injuries
“resulting from” the cornice. Even if Copper could have assumed a duty to mark
Celebrity Cornice, the SSA expressly bars “any claim” based on an injury caused by the
cornice. § 33-44-112 (emphasis added).
Nevertheless, Kumar contends that his claim survives the SSA regardless of
whether the cornice is an “inherent danger and risk of skiing.” In Kumar’s view, his
injuries did not result from an inherent danger of skiing (the existence of the cornice), but
instead from Copper Mountain’s alleged failure to mark the feature. Consequently,
Kumar argues, the SSA does not supplant the common law doctrine of assumed duty.
Kumar’s reliance upon the words “resulting from” to support his view is
misplaced. Assuredly, Copper Mountain’s claimed failure to mark the cornice may have
been a “but for” cause of the accident, but it does not follow that the cornice itself was
not another cause. The language of the SSA does not restrict the Act’s application to
claims resulting “solely” from the inherent dangers of skiing, and Colorado courts
recognize that there may be multiple “but for” causes of an injury. See Leppke v. Segura,
632 P.2d 1057, 1059 (Colo. App. 1981) (holding that there may be multiple “but for”
causes). Because skiing off of a cornice is an inherent danger of skiing, and was one of
the “but for” causes of Kumar’s injuries, his claim is precluded by the SSA.
dangers or conditions which are an integral part of the sport of skiing”) with § 33-44-
103(3.5) (providing the present, broader definition).
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Kumar’s assumed duty argument fails for a more fundamental reason. In revising
the SSA in 2004, the Colorado General Assembly recognized “the dangers that inhere in
the sport of skiing, regardless of any and all reasonable safety measures which can be
employed.” § 33-44-102. A ski area operator is negligent for failure to warn only when
it violates the specific and detailed warning requirements of the SSA as set forth in §§ 33-
44-106 and 107. And as we discuss below, Celebrity Cornice did not qualify as a feature
requiring warning signs under those sections. See § II.C, infra.
Consistent with the legislature’s recognition of the dangers of skiing and its goal
of clearly defining a ski area’s potential liability, the language of § 33-44-103(3.5) is
clear: “inherent dangers and risks of skiing” should be read to include accidents like
Kumar’s, in which a skier is injured skiing over a feature that was not subject to the
SSA’s explicit signage requirements. Although the SSA provides that additional signs
“may be posted at the discretion of the ski area operator,” § 33-44-106(g)(2), such
signage is optional. Contrary to Kumar’s claim, a ski area operator has no assumed
duty to post such discretionary signs.
C
Kumar’s second claimed basis for liability is negligence per se premised upon
Copper Mountain’s failure to mark Celebrity Cornice as a “specified freestyle terrain
area.” We review issues of statutory construction de novo, United States v. Oberle, 136
F.3d 1414, 1423 (10th Cir. 1998), and begin by examining the plain language of the
statute, Robinson v. Shell Oil Co.,
519 U.S. 337, 340 (1997). “The plainness or
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ambiguity of statutory language is determined by reference to the language itself, the
specific context in which that language is used, and the broader context of the statute as a
whole.” Id. at 341.
The SSA requires ski area operators to post signs marking both “extreme terrain”
and “specified freestyle terrain areas.” § 33-44-107(2)(d). “‘Freestyle terrain’ includes,
but is not limited to, terrain parks and terrain park features such as jumps, rails, fun
boxes, and all other constructed and natural features, half-pipes, quarter-pipes, and
freestyle-bump terrain.” § 33-44-103(3.3).
Even were Celebrity Cornice to qualify as freestyle terrain, it would not qualify as
a “specified freestyle terrain area.” The SSA distinguishes between “terrain” and “terrain
areas.” This distinction is evident in § 33-44-107(2)(d) which requires signage at the
“commonly used access” for the “ski area’s extreme terrain.” In contrast, § 33-44-107(5)
mandates that signs marking “specified freestyle terrain areas” need only be posted “at or
near the beginning of each trail or slope.” Thus, extreme terrain features must be marked
individually at commonly used access points, but only the beginning of each slope
leading to a “specified freestyle terrain area” need be posted with a sign. Consistent with
the plain meaning of the word “area,” the SSA recognizes that a terrain area is larger than
a single terrain feature.
Moreover, Celebrity Cornice was not “specified.” See § 33-44-107(2)(d)
(referring to “specified freestyle terrain areas”). The SSA does not state who is
responsible for specifying a “freestyle terrain area.” We can imagine three possible
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parties who might “specify” that an area is a freestyle terrain area: the legislature, skiers,
or the ski area operator.
Although § 33-44-103 lists features that qualify as “freestyle terrain,” the SSA
does not establish which parts of a ski resort qualify as “freestyle terrain areas.” In light
of this statutory silence, contrasted with the detailed signage requirements elsewhere in
the statute, see §§ 33-44-106 and 107, it does not appear that the Colorado General
Assembly intended to “specify” freestyle terrain areas.
The second possibility is that skiers might specify “freestyle terrain areas.” This is
the option favored by Kumar, who contends that because the cornice was informally
nicknamed by guests and employees at Copper Mountain, the cornice was “specified.”
Yet such a reading of § 33-44-107(d) leads to the absurd result that individual skiers may
define the extent of a ski area operator’s liability merely by nicknaming some part of a
mountain. See State v. Nieto, 993 P.2d 493, 501 (Colo. 2000) (“[I]n construing a statute,
we must seek to avoid an interpretation that leads to an absurd result.”). Such a reading
would disserve the Colorado General Assembly’s stated intent of clarifying “the rights
and liabilities existing between the skier and the ski area operator and between skiers.”
§ 33-44-102. Kumar’s proffered interpretation of “specified freestyle terrain area” would
allow individual skiers to define the scope of ski area operators’ potential liabilities and
thus render ski area operators’ responsibilities more uncertain, rather than less.
The third possibility is that ski area operators themselves might specify which
sections of their slopes constitute “freestyle terrain areas.” Under this reading, the ski
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area operator must mark those areas of its slopes which contain “freestyle terrain” and
which are designated for freestyle use, such as terrain parks and aggregations of terrain
park features. See C.R.S.A. § 33-44-103(3.3). This reading is consistent with both the
text and the purpose of the SSA. Having eliminated the other possible entities that could
be responsible for specifying freestyle terrain areas, we conclude that specification by ski
area operators is the most plausible interpretation of this provision. And because
Celebrity Cornice was not specified by Copper Mountain as a freestyle terrain area,
Kumar’s negligence per se claim fails.
D
In conclusion, we emphasize what this order and judgment does not decide. We
do not decide whether Celebrity Cornice qualifies as “extreme terrain.” Although Kumar
advanced this claim below, he does not appeal this issue. We do not opine as to the
liability of a ski area operator based upon the height of a feature, such as a cornice. And
we do not decide whether a ski area operator is liable under the SSA for negligent slope
design. We decide only that: (1) the SSA, not the common law, controls this case and
thus there is no cause of action under the assumed duty doctrine; and (2) Celebrity
Cornice does not qualify as a “specified freestyle terrain area.”
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III
We AFFIRM the district court’s grant of summary judgment.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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