One case dismissed as another heads toward jury trial: outcome could hinge on interpretation of Colorado Ski Safety Act’s ‘inherent risks of skiing’ definition
By Bob Berwyn
FRISCO — Two Colorado judges have reached dramatically different conclusions about a pair of inbounds avalanche deaths that occurred on the same day at Winter Park and Vail ski areas last season.
Both Colorado skiers died Jan. 22, 2012, after one of last season’s first big snowstorms dumped fresh powder atop a rotten base layer, leading to dangerous avalanche conditions across the state.
In early December, Broomfield District Court Judge Patrick Murphy rejected arguments by Vail Resorts attorneys that the avalanche that killed teenager Taft Conlin on the Prima Cornice trail at Vail Ski Area was an inherent risk of skiing, as defined by the Colorado Ski Safety Act.
In late December, Grand County District Court Judge Mary Hoak dismissed a similar lawsuit against Intrawest Winter Park Operations Corporation in the death of Christopher Norris, who was also killed by an avalanche while skiing an inbounds area at Winter Park.
Hoak ruled concluded “that the inbounds avalanche falls squarely within the definition of inherent dangers and risks of skiing.” Read the court order here.
Following Murphy’s decision in the Vail case, that case is moving toward a trial, when a jury may decide if Vail Resorts was negligent and reckless in failing to adequately close and sign the slope.
Vail Resorts recently filed a response to the original complaint, once again rejecting any liability for Conlin’s death. Instead, the company’s attorneys said Conlin was negligent because he entered an area that he knew, or reasonably should have known, was closed. Read the Vail Resorts response to the complaint here.
“They’re saying it’s all his fault,” said Steamboat Springs-based attorney Jim Heckbert, representing Conlin’s family in the lawsuit. “They did the same thing with Ashley Stamp,” Heckbert said, referring to the 2004 death of another teenaged skier at Vail.
Stamp was hit by a snowmobile driven by a Vail Resorts employee while warming up for a race at Vail. Heckbert pursued a wrongful death lawsuit against Vail. The lawsuit was settled out of court in 2008 after the Colorado Supreme Court ruled that a court could, under certain circumstances, award exemplary damages under the Wrongful Death Act beyond the liability cap of the Ski Safety Act.
In the Jan. 22 accident at Vail, Conlin and his friends entered the Prima Cornice trail through an open gate and then traveled uphill — into a part of the trail that was closed, according to Vail Resorts, whose attorneys acknowledged the avalanche hazard on the upper part of Prima Cornice. They also pointed out that the upper part of the trail had been closed all season before the accident because of lack of snow.
According to the Colorado Avalanche Information Center, the Vail Ski Patrol “had begun mitigating the avalanche hazard in the Prima Cornice area, but their work had not progressed to the point where they would allow the public into the area accessed from the Upper Prima Cornice gate.” Read the full CAIC report here.
The Conlin lawsuit is now entering the discovery phase, when the court collects all relevant documents, including this report from the Eagle County Sheriff’s Office, which indicates that Conlin was wearing video camera on his helmet when he was caught by the avalanche.
“In 35 days we have to voluntarily give Vail Resorts all the information we have on the case, and they have to give us all information, including photos and ski patrol reports,” said Heckbert, who believes that, when all the evidence is gathered, a jury will find that Vail failed to adequately sign and close a dangerous slope as required by specific language in the Ski Safety Act.
“I think that after all the facts come in, Vail is going to be very embarrased … There was a reckless failure to do what they should have done as far as snow safety,” he said.
In the Winter Park case, Heckbert has filed a motion to reconsider and said he plans to appeal if the court rejects that motion.
The decisions by the two lower court judges won’t affect the respective lawsuits, according to Heckbert, but both cases could result in the Colorado Supreme Court revisiting the Ski Safety Act.
In both cases, the language of the Ski Safety Act is pivotal. Heckbert argues that Colorado lawmakers intended the act to be very specific in designating inherent risks of skiing.
There is some existing case law that addresses the question, including an accident at Copper Mountain, when a court ruled that certain type of cornice formation was an inherent risk of skiing, even though not specifically named in the Ski Safety Act.
So far, the Colorado Supreme Court has reserved judgment on whether the list of inherent dangers is exclusive, according to Judge Hoak, “it has indicated that the word ‘include’ typically signifies extension or enlargement” of the specific language.
On the other hand, Heckbert argues that a careful review of the legislative record will show that lawmakers intended to define a very specific set of inherent risks when they amended the Ski Safety act in 1990.
Heckbert’s arguments are outlined in his Grand County District Court motion for reconsideration.
“There is no evidence or law that a skier ‘reasonably expects’ to encounter an avalanche on an open trail within a ski area boundary,” he wrote.