Jury Rules in Favor of Vail in Avalanche Death

Discussion in 'Skiing and Industry News' started by SBrown, Jun 21, 2018.

  1. SBrown

    SBrown Steve Admin Pugski Ski Tester

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    This case finally went to trial, and the jury ruled in favor of Vail yesterday. (Sorry, I usually kept up with posting news about it, but was a bit of a slacker during the actual event.)

    https://www.vaildaily.com/news/jury...trial-six-person-jury-left-decide-civil-case/

    EAGLE — A six-person jury ruled Wednesday, June 20, that Vail Resorts had closed the upper Prima Cornice run on Vail Mountain's front side before an in-bounds avalanche killed 13-year-old Taft Conlin on Jan. 22, 2012.

    Taft's parents, Dr. Louise Ingalls and Dr. Stephen Conlin, had sued the ski company for negligence, saying the company did not close the run properly and violated Colorado's Skier Safety Act.

    Doug Lovell, Vail Mountain's chief operating officer, praised Wednesday's verdict while expressing sadness for Taft's family and friends.

    "Vail Resorts agrees with the ruling today by jurors of the Eagle County District Court and believes this was a thoughtful and well-reasoned decision, consistent with Colorado law. Nonetheless, we are also aware of how difficult the trial has been for everyone involved, and we remain deeply saddened by the tragic events of Jan. 22, 2012, and for the family and friends of Taft Conlin," Lovell said in a statement.

    "The company continues to place the highest value on the safety of our guests and employees and is proud of the Vail Ski Patrol and their ongoing commitment and professionalism. We will continue to work hard each and every day to mitigate risk and provide a safe environment for skiers and snowboarders on the mountain."

    Ingalls said if they had won any money from the lawsuit, then they vowed to create a scholarship fund and give it away.

    "We just wanted to make things safer," Ingalls said. "That has been our goal since starting this six years ago.

    "Even with today's verdict, our efforts have already made a difference."

    Ingalls suggested that skiers need to take care of themselves, take avalanche classes and carry gear. The same day Taft died, an in-bounds avalanche killed Christopher Norris at Winter Park ski area.

    The Colorado Supreme Court ruled in 2016 that under Colorado's Skier Safety Act, in-bounds avalanches are an inherent risk of skiing. That narrowed Conlin's case from wrongful death to claiming Vail Resorts was negligent when ski patrollers closed Prima Cornice's upper gate, but not the lower gate.

    Ingalls and Conlin's attorney, Jim Heckbert, was at odds with District Court Judge Fred Gannett on several points and said an appeal is not out of the question.

    "The judge excluded a great deal of our evidence that we thought was relevant. As to whether we appeal, we'll talk to our clients," Heckbert said.

    "It violates every law of nature for parents to bury their child," Heckbert said during closing arguments Wednesday morning.

    Children grow up and leave, but the bond remains, Heckbert said.

    "That is the natural order, that is the circle of life. That circle of life was broken because Vail broke the law. As a result, Taft Conlin died," Heckbert said.

    Colorado's Skier Safety Act says that if a trail is closed, then every identified entrance should be closed, Heckbert said.

    "A trail closure must be so clear and unambiguous that a 10-year-old child can understand that it is closed," Heckbert said.

    Heckbert took aim at Vail ski patrollers testifying they were unaware that skiers climbed from up from the lower Prima Cornice gate. Four of the plaintiff's witnesses said they've done it and were with others when they did it, including a couple of coaches from Ski & Snowboard Club Vail.

    "If there was anything in their backgrounds, anything bad, you would have heard about it. You didn't," Heckbert said. "For 26 years before this child died on Prima Cornice, people remember sidestepping up when the upper gate is closed."

    Heckbert said by closing that upper gate, Vail Resorts intended to close a portion of the trail.

    But what portion? Heckbert asked.

    "No one knew what was open and what was closed. Whose fault is that? Vail management," Heckbert said.

    The plaintiffs were asking that Vail Resorts pay damages. That won't replace their son, Heckbert said. Ingalls and Conlin will have to deal with the loss of their son for the rest of their lives.

    Because it's a civil case, Heckbert had to convince the jury that it was more right that wrong — a preponderance of the evidence — that the ski company violated Colorado's Skier Safety Act.

    "If you find that Taft Conlin was 50 percent or more at fault, the parents lose," Heckbert said.

    Vail Resorts attorney Hugh Gottschalk opened his final statement by acknowledging the tragedy and expressing sympathy to Taft's parents and then said Vail Resorts did not cause their son's death.

    Ski patrollers left the lower Prima Cornice gate open so skiers could enjoy the 8 to 9 inches of new snow that fell that day, Gottschalk said.

    Taft and one other skier climbed up, and Taft triggered an avalanche that caused his death, Gottschalk said.

    Gottschalk said the Skier Safety Act says that to close a trail, it has to be closed at identifiable entrances.

    "The lower gate is not an identified entrance to upper Prima Cornice," Gottschalk said.

    The upper gate was closed, so the part of Prima Cornice to which Taft climbed was closed, Gottschalk said.

    "If we didn't close an identified gate, that's on Vail," Gottschalk said.

    But they did, he said.

    The Skier Safety Act also says alpine skiing means skiing or sliding downhill, Gottschalk said.

    "Nobody drew a line, nobody indicated that Taft Conlin skied there by gravity," Gottschalk said. "You have to assume that skiers are going downhill or you would have to put a four-sided box around closed areas."

    As for the people who said they and others have sidestepped up Prima Cornice, that proves nothing, Gottschalk said.

    "'I did that' is not an legal reason for Vail to treat the lower gate as an identified entrance," Gottschalk said.

    Gottschalk again acknowledged the tragedy but told the jury that sympathy for Taft's parents should not play a part in their decision.

    "You're not being asked to decide whether Taft Conlin was a bad kid. Anyone who has been through this trial knows that's not true. You're being asked to decide if a 13-year-old made a bad decision," Gottschalk told the jury.
     
  2. fatbob

    fatbob Out on the slopes Skier Inactive

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    Good. Not particularly bothered about Vail but rather the principle that closed means closed and just because people have found a way round it in the past doesn't mean it is open. Hopefully the parents can now have some closure. Wouldn't hurt for VR to offer to co-fund a scholarship fund re Avy safety for teens with the parents
     
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  3. Ken_R

    Ken_R Living the Dream Skier

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    I have been following this case loosely over the years. Its absurd that it took 6 years to be seen through. The lawyers are the real winners here.

    From the looks of it Taft Colin was poaching powder and paid the highest price. Tragic.
     
  4. Nancy Hummel

    Nancy Hummel Ski more, talk less. Instructor

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    The attorneys for the family likely get nothing. Those cases are usually done on a contingent fee basis.

    This is a sad case. I am sure people hike up all the time. The people that hike up are likely locals who should know better. In general, too many people ignore the closures.

    I think this was a tough case. Lots of arguments on both sides.
     
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  5. Gary Stolt

    Gary Stolt Gets a lot out of his skiing Team Gathermeister

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    I'd like to weigh in here. First, loosing a child is no fun. I would agree that Vail is probably at least partially responsible for not being tougher on those that have hiked up in the past. However, I also think that the parents are partially responsible for not stressing/teaching Taft not to cross a rope, that closed areas are closed for a reason. In general, ski resorts do a good job of keeping us safe, but when to close an area is a guessing game.
    I would expect that even though Vail won, that this will motivate resorts (and skiers) to keep skier safety a priority.
     
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  6. fatbob

    fatbob Out on the slopes Skier Inactive

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    Agree with all this.

    Also think the "don't mark hazards so you can't be held accountable for leaving a hazard unmarked" is kinda ridiculous thinking that might might sense legally but in safety terms is jibberish. There really ought to be some good samaritan/ best endeavours type let outs in the law.
     
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  7. SBrown

    SBrown Steve Admin Pugski Ski Tester

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    You know, although I agree with the decision, I'm not so sure the parents didn't do this. You know kids ... he didn't "cross a rope" -- even if he knew it was a gray area. We had a lot of discussion about this when it happened, and it's really scary. My own two kids, then teenagers, were skiing with friends that day and I was skeeved out all day. I kept texting them to stay in bounds no matter what, but since when do teenagers always obey their parents? When news of this (and the WP death) hit, post ski day, it was really sobering.
     
  8. jmeb

    jmeb Stereotypical Front Range Weekend Warrior Skier

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    I wouldn't put much of this on the parents.

    What it is is a great reminder that we should collectively shame/discourage anyone we see poaching. Likely there were a bunch of older people than Taft who Taft saw hiking up to ski pow. Those people set a deadly example for this kid.
     
    Last edited: Jun 21, 2018
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  9. SBrown

    SBrown Steve Admin Pugski Ski Tester

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    Yeah, unless the parents were the ones who were actively setting the example by hiking up on other days the upper gate was closed -- which isn't out of the realm of possibility. I mean, I've skirted some ropes with my kids before in a similar manner. Not on 47-degree slopes on high-danger days, but it doesn't really matter. Even if I stressed not to do this on dangerous days, it's still setting an example.
     
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  10. Seldomski

    Seldomski Getting off the lift Skier

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    What is the fallout of this? Will resorts need to enforce a 'no-uphill' policy? On certain days? In certain areas? If ski patrol spots you hiking uphill, is it grounds to pull your pass?

    If these kids had happened upon the run not knowing the top was closed, does hiking uphill effectively void any responsibility for the resort? I can see how on a powder day that you might spy an untracked area that requires some walking uphill. It may not be immediately obvious that it is a trail that is closed at the top.

    I tend to agree with the jury in this case, but, I still think this is a bit of a grey area that may need to be clarified. Especially with the ski industry pushing touring gear and the uphill experience lately.
     
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  11. jmeb

    jmeb Stereotypical Front Range Weekend Warrior Skier

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    It has always been policy that you are not allowed to hike up a closed run. This will continue to be policy. Ignorance of a closure (if reasonably signed) is no excuse.

    This is also clearly spelled out in every uphill policy I've ever seen.

    The case in question though has nothing to do with touring gear etc. It was simple bootpacking.
     
  12. SBrown

    SBrown Steve Admin Pugski Ski Tester

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    Many areas have signs that say "No hiking above this point" or something to that effect. IIRC, the parents wanted Vail to put those signs there, but Vail refused, and that's why the parents sued. I think Vail was advised not to add signage while the case was still pending -- as was mentioned above, some operators feel that the fewer the signs, the less liability they might have. Don't know if this decision will change that.
     
  13. fatbob

    fatbob Out on the slopes Skier Inactive

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    I don't think it's a particularly grey area - as Vail's attorney rightly pointed out the expectation should be against uphill travel otherwise how far does it go - every resort reponsible for every adjacent outabounds area that a skier can potentially hike up from the parking lot or access road?

    I always saw this a a "grief" case rather than a realistic winner and I think IIRC that the vast majority of people on Epic who debated it at the time came down against the parents. You don't have to be pro Vail to see that a finding against them might have major implications for the opening of terrain we do enjoy in resorts and the work of ski patrol (who might spend more time having to ass cover and less on actually making stuff safe at the earliest opportunity).
     
  14. SBrown

    SBrown Steve Admin Pugski Ski Tester

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    A 13yo kid probably saw it as a gray area. Parents always say "don't duck ropes" but did he? Did they say don't hike up? That's all I meant.
     
  15. fatbob

    fatbob Out on the slopes Skier Inactive

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    Yeah unfortunately he was probably more concerned about not getting his pass pulled than about avy risk. Hiking up where there wasn't a sign to the contrary presumably gave people a plausible defence on that point which is why they did it.

    I can't totally knock it. I can't hand on heart say I've never gotten some nice tracks in areas that were probably technically closed although I didn't cross any ropes or signs to get in there. Fortunately usually all I have been risking in such situations is the ptex on my bases.
     
  16. UGASkiDawg

    UGASkiDawg AKA David Pugski Ski Tester

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    FIFY...err at least when I was a teenager
     
  17. Ken_R

    Ken_R Living the Dream Skier

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    Also, I would like to add that Ski Resorts should post the Day's avalanche danger at the bottom of each lift. Even though the avy forecast is mainly for backcountry, unmitigated terrain it is still helpful in making choices.

    I took a ride in a small inbounds avalanche at Steamboat 2 years ago. Chute 1. I went into the run from the top like its intended, made a turn on the steeper part and instantly triggered it. I was not poaching since the run was legitimately open. If I had been injured or worse killed then there would definitely be a case against the resort.

    Would a sign stating that Avy danger was high for the day made me not go into the run? Humm probably not but it might for those that are thinking about poaching. I have seen signs at the gates for the Stone Creek Chutes in Beaver Creek and other areas clearly state that the area is closed for avalanche danger.

    So, can the resorts do more? Yes, but ultimately its all about individual choices.
     
  18. UGASkiDawg

    UGASkiDawg AKA David Pugski Ski Tester

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    Vail has 47 degree slopes:rolleyes: who knew?? I always thought it was golf course covered in snow! Maybe I'll have to check this Vail place out someday;)
     
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  19. jmeb

    jmeb Stereotypical Front Range Weekend Warrior Skier

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    Is that the case?

    My understanding is that there is legal precedent that avalanches are an inherent danger of skiing -- at least in Colorado.

    Which is why they had to prove -- in this case -- that the resorts closure or lack thereof was negligent. Not that their avy mitigation (or lack thereof) was negligent.

    Had this occurred on an open slope, I think Vail's defense would have in fact been simpler.
     
  20. Ken_R

    Ken_R Living the Dream Skier

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    So leaving a slope with high avalanche danger (unknowingly) open is better (legally less exposure for the resort) than closing it?
     

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