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Colorado: Judge rejects Vail Resorts’ claim that avalanches are an inherent risk of inbounds, lift-served resort skiing

Vail will have to produce avalanche safety documents for trial

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A jury trial may determine whether Vail Resorts has any liability for the Jan. 22 avalanche death of 13-year-old Taft Conlin on Prima Cornice.

By Bob Berwyn

* some discusssion of this story on the Telemark Tips forum.

FRISCO — Vail Resorts failed last week to convince a judge that avalanches are an inherent risk of skiing on the company’s flagship mountain. Broomfield District Court Judge Patrick Murphy declined to dismiss a lawsuit filed by the family of Taft Conlin, who was killed by a snowslide on Prima Cornice in January 2012.

The company’s argument that avalanches are an inherent risk of skiing inbounds at ski areas may surprise a great many skiers, most of whom probably assume that they won’t be exposed to avalanche danger when they’re riding resort lifts and skiing on marked trails. Read Vail’s motion to dismiss here.

Advocating on behalf of Conlin’s family and for all skiers, attorney Jim Heckbert urged the court to reject Vail Resorts’ claims.

“If one is to accept the Defendant’s arguments, a ski area operator is permitted to negligently or knowingly expose skiers to the danger of death by avalanches with impunity. Because the risk of avalanche on January 22. 2012, could have been eliminated through the use of reasonable safety measures, the risk was not an inherent danger of skiing,” Heckbert wrote in the response to the the Vail Resorts motion to dismiss. Read the entire response here.

Conlin, then 13, was skiing on Vail Mountain with several friends on a powder day. The upper part of Prima Cornice was closed, but the group entered the trail lower down. Initial reports suggest that at least some of the young skiers may have then then climbed back uphill before the avalanche swept down the steep run, killing Conlin and partially burying at least one other member of the group.

Before going to court, Conlin’s family initially tried to get Vail Resorts to commit to taking steps toward preventing similar accidents in the future, But the company was unresponsive, according to Conlin’s mother, Louise Ingalls.

In their lawsuit, Ingalls and Stephen Conlin allege that Vail Resorts was negligent in failing to adequately mark and close the trail where the accident happened, and also accused the company of wanton and willful conduct.

Vail Resorts moved to have the case dismissed, arguing that avalanches are an “inherent danger” of skiing, and that the company is therefore protected from any responsibility Conlin’s death by the Colorado Ski Safety Act, which names certain conditions generally acknowledged as representing inherent risks, but doesn’t specifically mention avalanches.

“It gives a grocery list of snow conditions … They (Vail Resorts) were trying to take a word here, a phrase there and throw them into a pot … to argue that avalanches are included in those inherent risks,” said Steamboat Springs-based Heckbert, who is representing Conlin’s family in the proceedings.

If the ski industry and the State Legislature had meant to include avalanches as an inherent risk, they would have included wording to that effect in the law, Heckbert said. He explained that the law was essentially written by the ski industry and expressed frustration that is been used to take away the rights of Colorado citizens.

“Even ski areas didn’t think avalanches were an inherent risk when they wrote the law,” Heckbert said.

The judge’s ruling in the Conlin case may affect a similar case pending in Grand County Distirct Court, where Heckbert is representing the family of another skier killed in an inbounds avalanche the same day as Conlin.

Vail Resorts how has until Jan. 7 to substantively respond to the Conlin’s complaint. After that, the discovery process starts. That means Vail Resorts will have to produce all documents and reports relevant to the Vail avalanche death.

“They have to voluntarily produce all their documents related to avalanche control … what they did before, what they did after … After we review that, then we start taking depositions,” Heckbert said.

In addition to determining whether avalanches are part of the risk of skiing at Colorado resorts, the case may hinge on an interpretation of a subsection of the Ski Safety Act that addresses management and signage of closed inbounds areas, said attorney Jim Chalat, who is not involved in this case, but has argued many other ski-safety related cases.

The statute outlines “mandatory obligations” that ski areas have with regard to closures.

“If Vail meant to close Prima, they needed to rope it off along all of its entrances,” Chalat said.

Here’s how the Ski Safety Act defines the inherent dangers and risks of skiing:

“(T)hose dangers or conditions that are 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, 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.”

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5 Responses

  1. I have a problem with vail being found liable in this situation because they acted responsibly in closing the run, and the kids willfully entered the closed area which so far as I’m concerned clears Vail of being negligent in any way whatsoever. Holding Vail liable will only lead to loss of lots of wonderful inbounds terrain and lots of restrictive and punitive policies towards skiers.

    • Well, they haven’t been found liable, yet. That will be up to a jury to decide, if it goes to trial.And you’re certainly entitled to your opinion, but the judge apparently thought there was enough of an open question under the ski safety act to let the case go to the next step. Perhaps that will help provide some more info on everything that happened that sad day.

  2. Indeed this is a sad tragedy. The issue surrounds the fact that ski areas manage gate-accessed inbounds areas with gravity in mind. Lower gates can sometimes be opened when the upper avalanche paths do not allow for the upper gates to open. However, these guys went in a lower gate and hiked up. That’s not how gate-accessed terrain is managed currently. They knew the upper gate was closed or they would not have spent the energy to hike up. That’s the problem here for me. Most skiers and riders would be very bummed if this lawsuit changes ski area policies with lower gates. What if now we don’t get to access lower gates? It’s upper gates (and solid avalanche conditions) or nothing. That would mean less skier compaction in the lower zones and more skiers not getting the goods. Is that really what we want?

  3. [...] are one of the inherent risks of skiing for which ski areas can’t be held liable, but an Eagle County Court refused to dismiss the case on those [...]

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