No. 81CA0734Colorado Court of Appeals.
Decided November 10, 1983. Rehearing Denied December 8, 1983. Certiorari Denied May 29, 1984.
Appeal from the District Court of the City and County of Denver Honorable Harold D. Reed, Judge
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Montgomery, Little, Young, Campbell McGrew, P.C., J. Bayard Young; Casey and Klene, P.C., Donald A. Klene, for plaintiff-appellant.
White and Steele, P.C., Stephen K. Gerdes, for defendant-appellee.
Division II.
Opinion by JUDGE VAN CISE.
[1] In February 1979, Gregory W. Mannhard (the skier) was killed as a result of a snow avalanche triggered by him and two companions skiing in an out-of-bounds area at Loveland Basin Ski Area. The area was leased, controlled, and maintained by defendant, Clear Creek Skiing Corporation (the operator). Claiming that the skier’s injuries and his subsequent death were caused by the negligence of the operator, the skier’s wife, plaintiff, Judith A. Mannhard, brought this wrongful death action on behalf of herself and their two minor children. The operator denied liability and claimed that the accident had been caused by the negligence of the skier. It was undisputed that any negligence of his would be imputed to the plaintiff. [2] After a jury trial, a special verdict was returned finding both the skier and the operator to have been 50% negligent. Accordingly, judgment was entered dismissing plaintiff’s claim. She appeals. We affirm. I.
[3] Plaintiff contends the court erred (1) in refusing to give her tendered jury instruction which would have informed the jury that the operator owed the highest degree of care because it was engaged in an “inherently dangerous activity,” and (2) by giving, instead, an instruction advising the jury that the operator’s duty was “reasonable care.” We conclude that the rulings on the instructions were proper.
(Colo. 1980). See also Ski Safety Act of 1979, § 33-44-101, et seq., C.R.S. 1973 (1982 Cum. Supp.). [5] In Federal Insurance Co. v. Public Service Co., 194 Colo. 107, 570 P.2d 239 (1977),
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a case involving transmission of electricity, the court held that a higher degree of care standard is required only when: (1) the activity is inherently dangerous; (2) the defendant possesses expertise in dealing with the activity; and (3) the general public would not be able to recognize or guard against the potential danger. At least the first and third criteria are missing here.
[6] As to the first criterion, the phrase “inherently dangerous activity” implies some sort of action or affirmative act which would create a dangerous situation for others, such as transmission of electricity, as i Federal Insurance Co. v. Public Service Co., supra, or delivery of liquified propane gas, as in Van Hoose v. Blueflame Gas, Inc., 642 P.2d 36(Colo. 1981). In other words, the phrase applies to activities which by their very nature create a danger to the public that otherwise would not exist. The snow conditions which constituted the avalanche danger were a natural occurrence and were not caused by, nor did they result from, operator’s activities. And, there was no evidence that the danger was increased by anything done or not done by the operator. [7] We have not been referred to, and we have not found, any Colorado case law in which the “inherently dangerous” classification has been applied to passive activities or inaction pertaining to already existing dangerous natural conditions. We see no need so to extend the concept. Therefore, we hold that, with the exception of the ski tows themselves, which are not involved here, there was no activity engaged in by the operator, and it brought nothing on the land, that was inherently dangerous to the public. [8] As to the third criterion, the testimony, including that of the skier’s companions, indicated that avalanche danger is a phenomenon of which the public is generally aware, and that conditions under which avalanches are likely to occur are easily recognized by most skiers so they can be avoided. These factors were fully known and appreciated by the skier himself. [9] Summit County Development Corp. v. Bagnoli, 166 Colo. 27, 441 P.2d 658
(1968), relied on by plaintiff, is inapposite. In Bagnoli, the court required a higher degree of care in operating a ski tow, because the lift operator was essentially in the position of a common carrier. And, a skier has little or no control over his own movements while riding a chairlift or gondola and must necessarily depend on the operator for his safe passage. Conversely, while on the slopes, as here, the skier has complete freedom of movement and choice. [10] Under the circumstances of this case, the court was correct in giving the standard reasonable care instruction, CJI-Civ.2d 12:4 (1980), and in refusing to impose a higher standard.
II.
[11] Plaintiff also contends that the jury’s finding that her damages were $100,000 was so disproportionate to the evidence that it indicated passion, prejudice, and mistake, and requires the court to grant a new trial on all issues. We do not agree.
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