dissenting.
€ 19 Today the majority holds that an avalanche that kills a skier on a designated, open run 3t a ski area is nothing more than a "changing snow condition," maj. op. " 16, and thus one of the "inherent dangers and risks of skiing" for which ski resorts are immune from liability under the Ski Safety Act of 1979, §§ 838-44-101 to -114, C.R.S8. (2015) *353(the "SSA"). To arrive at this conclusion, the majority construes the statutory phrase "snow conditions as they ... may change" in section 88-44-103(8.5) to encompass the movement of snow, "including by wind and gravity," maj. op. 115, such that an avalanche-the' swift sliding or tumbling of a large mass of snow, ice, earth, rock, or other material down a mountain incline-is merely a “change” in the "condition" of the snow. Because the majority's construction of seetion 83-44-108(8.5) is wholly unconvincing, I respectfully dissent.
I, Principles of Statutory Construction
20 We review issues of statutory interpretation de novo. Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008). When interpreting language in a statute, courts are guided by familiar principles of statutory construction. Our aim is always to ascertain and give effect to the General Assembly's intent. Roup v. Commercial Research, LLC, 2015 CO 38, ¶ 8, 349 P.3d 273, 275. We give words their plain and ordinary nieahing, id., and we examine the statutory language in the context of the statute as a whole, Foiles v. Whittman, 233 P.3d 697, 699 (Colo. 2010). We will not read into a statute language that does not exist. Boulder Cty. Bd. of Com'rs v. HealthSouth Corp., 246 P.3d 948, 954 (Colo. 2011). Finally, "when the legislature speaks with exactitude, we must construe the statute to mean that the inclusion or specification of a particular set of conditions necessarily excludes others." Lunsford v. W. States Life Ins., 908 P.2d 79, 84 (Colo. 1995).
II. The Ski Safety Act
121 The purpose of the Ski Safety Act is to define the legal responsibilities, rights, and liabilities of ski area operators and of the skiers who use their facilities, § 88-44-102, C.R.S. (2015); Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 74 (Colo. 1998). Because certain dangers "inhere in the sport of skiing," § 88-44-102, the General Assembly has limited ski area operators' tort liability by granting them immunity for "injury resulting from any of the inherent dangers and risks of skiing," § 38-44-4112, CRS. (2015). The SSA defines-"inherent dangers and risks of skiing" in section 88-4-108(8.5), C.R.S. (2015), listing seven categories of hazards: (1) "changing weather conditions," (2) "snow conditions as they exist or may change," (8) "surface or subsurface conditions," (4) impact with natural and man-made objects commonly encountered on the slopes, (5) "variations in steepness or terraln,” (6) "eollisions with other skiers," and (7) "the failure of skiers to ski within their own abilities.1
22 The provision further elumdates some of these categories through examples. (For instance, "surface or subsurface conditions" include "bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects." Id. "[VJlariations in steepness or terrain" include but are not limited to "roads, freestyle terrain, jumps, and catwalks or other terrain modifications." Id. And the statute de-seribes "impact" with specific objects, namely "lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components." Id. *354Relevant here, "snow conditions as they exist or may change" means conditions such as "ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow." Id. Given the extensive list of inherent dangers in section 33-44-103(8.5), skiers and snowboarders assume much of the risk of engaging in snow sports, even within the boundaries of a ski area. And yet, nowhere in the statute does the term "avalanche" appear.
123 The majority nevertheless concludes that the statutory phrase "snow conditions as they ..,. may change" in section 88-44-108(8.5) encompasses the "movement" of snow, maj. op. 1 15, such that an avalanche is simply a "change" in the "condition" of the snow,. This interpretation is untenable for a host of reasons.
{24 As an initial matter, because the SSA's grant of immunity to ski area operators abrogates remedies available at common law, we must construe the statute strictly, Henisse v. First Transit, Inc., 247 P.3d 577, 579 (Colo. 2011). Thus, "if the legislature wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent either expressly or by clear implication." Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004).
{25 Although the majority does not address the issue, Winter Park contends that section 33-44-108(8.5) must be construed broadly because it introduces the categories of dangers and risks with the word "including." Ordinarily, the word "including" is construed expansively, such that placing "including" before a list of examples does not confine the meaning of the term to the specific examples listed, Preston v. Dupont, 35 P.3d 433, 438 (Colo. 2001).
26 However, viewed in the context of section 38-44-1038 as a whole, the use of the term "including" at the beginning of subsection (8.5) does not function to expand the list of "Inherent dangers and risks of skiing" that follow; rather, it serves to limit it. Elsewhere in section 88-44-108, which provides the definitions for terms used in the SSA, the General Assembly used "including" coupled with expansive language. For example, "Freestyle terrain" "includes, but is not limited to," terrain parks and other features. § 33-44-108(8.3). "Skiing" "includes, without limitation," all manner of snow sports. § 33-44-108(8). A "skier" is a person who uses the facilities of a ski area, "including but not limited to" ski slopes and trails. Id. Most significantly, subsection (8.5), the provision at issue here defining the "inherent dangers and risks of skiing," describes "variations in steepness or terrain" as "including but not limited to" various types of natural and man-made terrain. § 38-44-108(8.5). In contrast, the General Assembly omitted this expansive additional language from the term "including" at the head of subsection (8.5). Courts must presume that the legislature did not make this choice idly; instead, "the use of different terms signals an intent on the part of the General Assembly to afford those terms different meanings." Robinson, 179 P.3d at 1010. Thus, we can infer from the language of section 88-44-1083 as a whole that the term "including" as used at the beginning of subsection (8.5) was intended to limit, not expand, the list of "inherent dangers and risks of skiing" that follow.
127 The history of this provision confirms this legislative intent, When first introduced, the 1990 amendment that added what is now subsection (8.5) defined "inherent dangers and risks of skiing" as those dangers or conditions "including, but not limited to," various hazards. However, in comments before the House Committee on State Affairs, Representative McInnis, a sponsor of the bill, explained that the original bill was amended to remove the phrase "but not limited to," and that this change was intended to narrow the provision:
We have stricken the words 'but not limited to,' so that it simply reads, 'the sport of skiing, including, and then it goes on to say, 'changing weather conditions, snow conditions, and so forth.... It's a slight narrowing of the amendment, and it's a clarification that the items that follow are the inherent risks and dangers that are being referred to.
Hearing on S.B. 90-80 Before the H. Comm. on State Affairs, 57th Gen. Assemb., 2nd Sess. (March 18, 1990) (statement of Rep. Melnnis) (emphases added). In short, given *355this legislative intent, and given that the SSA abrogates the common law, we must construe the "inherent dangers and risks" in section 38-44-108(8.5) narrowly.
[ 28 Second, as a matter of statutory construction and common sense, I simply cannot agree with the majority that the phrase "snow conditions as they.... may change" can be construed to encompass the "movement" of snow,. Maj. op.. T 15-16. The majority acknowledges that the term "condition" means "simply a 'mode or state of being," or more specifically, 'the physical state of something"" Id, at 114 (citation omitted). I agree. Logically, then, a snow "condition" refers to the physical state of snow, as illustrated by the examples listed in the statute: "ice, hard pack, powder, packed powder, wind pack, corn, erust, slush, eut-up snow, and machine-made snow." § 88-44-108(8.5). Hach example describes a physical property or quality of the snow itself, On any given day on the slopes, skiers necessari-. ly encounter one or more of conditions, these snow
T29 By contrast, an avalanche is "an event-one that not even necessarily involves snow." Fleury v. IntraWest Winter Park Operations Corp., 2014 COA 13, — P.3d — (J. Jones, J., dissenting). In short, an avalanche is not a "physical state" of snow but a term that describes the movement of snow. Indeed, the majority recognizes that an avalanche describes an episode: a "fall or slide of a large mass ... down a mountainside," or a "mass of snow sliding, thmbling‘, or flowing down an inclined surface." Maj. op. 115. Yet subsection (8.5) does not include the "movement" of snow among the "inherent dangers and risks" of skiing. Under the canon of statutory construction known as noscitur a sociis, "a word may be known by the company it keeps." St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 2014 CO 33, ¶ 22, 325 P.3d 1014, 1021-22 (applying the canon by looking to the other terms grouped in a Colorado Governmental Immunity Act waiver for guidance in interpreting the term "public facility"); Here, the term "snow conditions" plainly refers to the physical state or quality of the snow itself: powder, packed powder, ice, slush, ete. Applying the canon of noscitur a sociis, a snow "condition" does not also contemplate the "movement" of snow-a wholly different concept. Indeed, in its own version of the SSA, the Idaho legislature recognized the obvious distinction between snow "conditions" and the "movement" of snow by separately providing that skiers assume the risk for both "snow or ice conditions" and "any movement of snow including, but not limited to, slides, sloughs or avalanches." Idaho Code Ann. § 6-1106 (2015) (emphases added).
80 The majority nevertheless concludes that the phrase "snow conditions as they exist or may change" in subsection (8.5) encompasses the movement of snow by reasoning that the avalanche that killed Salynda Fleury's husband was merely a "changing condition" of snow. But as discussed above, the "condition" of the snow refers to its physical quality (powder, ice, slush)-not an event, and not the snow's location (piled on a precipice, nestled in tree branches, or lying at the base of a mountain). Consequently, a "change" in the "condition" of the snow under subsection (8.5) does not refer to a change in its Tocation-or as the majority puts it, from "fresh snow on unstable snow-pack" to "a mound of snow at the bottom of the incline." Maj. op. 116. Rather, a "change" in the "condition" of the snow simply refers to changes from one physical state or quality to another.: Over the course of a few days or even a few hours, fresh "powder" can change to "packed powder." A storm can change "hard pack" back to deep "powder," On a spring day, "ice" can change to "hard pack," to "slush," and so on. But a "change" in the "condition" of snow hardly contemplates a change in the snow's location, let alone an event like an avalanche, Accordingly, I simply cannot subscribe to the majority's logic that the General Assembly intended "snow conditions as they exist or may change" to include avalanches.»
31 Finally, the majority's construction of this phrase cannot be squared with the remainder of the statute. The many hazards listed in section 33-44-108(8.5) as "inherent dangers and risks of skiing" are common, everyday conditions that any skier or snowboarder reasonably can expect to encounter on open portions of in-bounds ski areas. Im*356portantly, each of these hazards represents dangers or risks that are either largely within a skier's control (e.g., avoiding collisions with objects or other skiers, skiing within ability) or capable of being perceived, anticipated, assessed, and generally. avoided by the skier's choice (e.g., weather conditions, snow conditions; ~or terrain) See § 83-44-108(8.5). -~ to l e >
T32 But an avalanche is categorically different. Unlike weather, snow conditions, or terrain, the average skier lacks the training or resources to perceive and assess the risk of an avalanche on any given slope on any given day: Notably, the SSA allocates to ski area-:operators the risk of other hazards that fall outside of a skier's ability to control or anticipate, but are within the ability of the ski area operator to mitigate or reasonably protect skiers therefrom,. These include any "injury caused by the use or operation of ski lifts," id., and injuries resulting from a ski area operator's violation of SSA requirements like posting informative signage, § 88-44-106, C.R.S. (2015). Yet the majority's construction of "snow conditions as they exist or may change" runs contrary to the rest of subsection (8.5) and allocates the risk of injury and death from an in-bounds avalanche not to ski area operators-which have the information; expertise, and.resources to perceive and mitigate avalanche danger and protect skiers-but instead to the skiing, public, which does not.
[ 88 Perhaps the majority assumes that in-bounds avalanches can oceur only on expert runs or in back bowl areas and that experienced skiers who venture onto steep, snowy slopes are knowledgeable about avalanche danger and rightly should assume the risk. However, the Trestle Trees area where Christopher. Norris died was not 'a backeoun-try area but rather an open, designated run at Winter Park- Further, many expert slopes join beginner trails near the base of the mountain or have beginner-level catwalks that cross the expert runs, Under today's holding, even a family of novice skiers traversing the mountain must be expected to look uphill, gauge the steepness of the slope, the quantity of fresh snow, and the multitude of other factors that avalanche forecasters consider, and assume the risk of being swept away by an avalanche.
134 Fleury alleges that Winter Park knew or should have known that the Trestle Trees area was likely to experience dangerous avalanches on the day of Norris's death because avalanche warnings predicted heavy snows on a weak and unstable snowpack, Maj. op. T6. Despite these warnings, Winter Park neither closed the Trestle Trees nor warned skiers of the avalanche risk. Id. Certainly, ski area operators have ample incentive to mitigate the risk of avalanches and to protect skiers within their ski areas, lest the public take their ski vacations elsewhere. And without question, ski area operators go to great lengths to mitigate avalanche risk. But after today's holding, Winter Park effectively has no duty at all to warn skiers of avalanche risk or to close a dangerous run based on such risk: the SSA does not require ski area operators to mltlgate avalanches or to issue avalanche warnings, and the majority's ruling today abrogates any common law duty of care to do so.2 In fact, under today's holding, a ski area operator will be immune from liability for injuries from avalanches regardless of the' cirenmstances-arguably even for avalanches triggered by the operator's own negligent or reckless actions.3
*35785 I note that my view of section 88-44-108(8.5) does not lead to unlimited liability for ski area operators,. A plaintiff such as Fleury still must prove Winter Park's negli-genee, and it is likely that ski area operators' mitigation efforts ordinarily would meet any reasonable duty of care. Moreover, the SSA limits ski area operators' liability in other ways, including a two-year statute of limitations for all actions to recover damages for injury caused by the maintenance, supervision, or operation of a ski area, § 38-44-1111, C.R.S8, (2015), and a one-million-dollar cap on damages that may be recovered by a skier injured while using a ski area, $ 88-44-1138, C.R.8. (2015). e
136 In sum, although the General Assembly easily could have added "avalanches" to its extensive list of inherent dangers and risks in subsection (8.5), it chose not to. Unlike the majority, I would not add words to that provision to ereate immunity where none presently exists but would instead leave that decision to the legislature.4 Because the existing statutory definition of "inherent dangers and risks of skiing" does not include avalanches, and because I cannot accept the majority's strained logic that an avalanche is merely a "change" in the "condition" of the snow, I respectfully dissent. |
I am authbrizéd to state that JUSTICE GABRIEL joins in this dissent.
. Sectien 33-44-103(3.5) reads, in its entirety:
''Inherent risks of those ; sur- or as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or 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, freestyle terrain, jumps, 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.
(Emphases added.)
. The SSA does require ski area operators to print lift tickets containing a warning to skiers of the "inherent dangers and risks of skiing," using language drawn from section 33-44-103(3.5). § 33-44-107(8)(c), C.R.S. (2015). Interestingly, this required lift ticket warning notifies skiers that they assume the risk of injury from a host of hazards, specifically: "[clhanging weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of Skiers to ski within their own abilities." Id, Like subsection (3.5), nowhere in this required warning does the term "avalanche" appear. And for the. reasons stated above, I gravely doubt a skier would infer from this list.that "avalanches" naturally fall under the category of ' 'changing snow conditions."
. In 1996, 'a ski patroller threw an avalanche charge from a chairlift at: Loveland Ski Area in Colorado and triggered a "massive" avalanche that uprooted trees and destroyed the patroller's ''own 1986 Honda Civic, parked in a lof at the base of the mountain. See John Meyer, Love-land's Over the Rainbow was cleared by a hu*357man-set avalanche, The Denver, Post, Oct. 15, 2012, http://perma.cc/C9T4—6A28.
. I note that other states' versions of the SSA expressly allocate avalanche liability between ski area operators and skiers. A previous version of Montana's statute defined "inherent dangers and risks of skiing" as including "avalanches, except on open, designated ski trails." Mont. Code Ann. § 23-2-702(2)(c) (2013).© This section was amended in 2015 to provide that avalanches do not qualify as inherent dangers "on open, machine-groomed ski trails." See 2015 Mont, Laws 299 (emphasis added). Alaska requires ski area operators to prepare and implement a plan of operation each ski season that includes provisions for avalanche control and rescue, Alaska Stat. § 05.45.040 (2015), and a ski area operator that violates this provision is negligent and may be held civilly liable, id. at § 05.45.020.