Jury Rules in Favor of Vail in Avalanche Death

[jmeb]

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

Not what I'm saying. Obviously it is better to close a run if you have concerns about its avy danger. If they had meant to close it, but failed to, that would be negligence.

I'm just saying that a slide on an inbound open run is not a sure case against a resort. Avalanches (in CO) are considered an inherent risk of skiing inbounds. Just because a run is open does not mean there is no avalanche risk and that a resort is liable if they happen. You'd have to prove negligence on the resorts behalf which is a much higher burden of proof.

 

[Philpug]

Vail has 47 degree slopes who knew??

Yeah, I thought it would have been colder than that too.

This is where I have to feel for resorts, how much marking is too much? Where is the line drawn. You can only do so much.

 

[scott43]

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

I know in my line of work that recognizing a danger is worse than pretending it isn't there. Strange but true..

 

[Mike King]

Gals and Guys, this is more complex than you are making it out to be. Vail closed the upper gate, but the lower gate was open. There is no policy that says you cannot hike or side step uphill -- and there's a ton of areas where this is exactly what you do. It's also unknown whether the kids knew that the upper gate was open. So, was Vail negligent in not closing the lower gate? Should Vail have roped off the lower gate so that you would have to cross a rope to hike into the upper portion of the run? And what is the responsibility of the kids not to hike up?

My understanding is that the kid traverse/hiked up not too much to reach the area where they were involved in the accident.

It is, in my opinion, not very cleanly cut and why it took 6 years to decide. And clearly the courts also thought it was less than a clean cut case otherwise it would not have gone through 3 courts and back to the district court to be adjudicated.

It's just a sad situation. And a gray one at that.

Mike

 

[fatbob]

“A jury will decide where the truth lies in a negligence lawsuit against Vail Resorts.

Either Taft Conlin hiked up further than the length of a football field and higher than a 10-story building to access closed terrain on Vail Mountain’s Prima Cornice run, causing his own death, or Vail Resorts failed to properly restrict access to the terrain and that negligence caused Conlin’s death.”

If those measurements are remotely accurate doesn't sound very grey to me. Not that I don't agree that a No uphill hiking sign at the gate might have been a good idea.

 

[jmeb]

n. There is no policy that says you cannot hike or side step uphill -- and there's a ton of areas where this is exactly what you do.

While that may be true, there is a stated policy to "Keep off closed trails and out of closed areas." And the Colorado skier code is pretty explicit that it is on the skier to know what is closed.

When skiers bypass the closed upper entrance, use the lower entrance, and then hike up -- to me that is a pretty clear violation of that policy.

Will Vail and other ski area probalby make this more explicit in the future (no uphill hiking in certain areas)? Probably. Were they legally liable? I don't think so.

 

[Seldomski]

I don't think the resorts need to fence off every entrance to cover uphill and downhill. But, I do think resorts may consider clarifying that hiking when there is avalanche danger is 'at your own risk' and could put you in 'mortal peril.' This could be as simple as a sign similar to the 'early season conditions may exist' signs they have up in December or when conditions warrant. Put the signs at the top of lifts that afford access to such runs. Basically the signs should highlight that uphill travel may put you onto a run with extreme avalanche danger.

This wouldn't need to be at every resort, just where there are runs that are accessible in this manner.

 

[Mike King]

“A jury will decide where the truth lies in a negligence lawsuit against Vail Resorts.

Either Taft Conlin hiked up further than the length of a football field and higher than a 10-story building to access closed terrain on Vail Mountain’s Prima Cornice run, causing his own death, or Vail Resorts failed to properly restrict access to the terrain and that negligence caused Conlin’s death.”

If those measurements are remotely accurate doesn't sound very grey to me. Not that I don't agree that a No uphill hiking sign at the gate might have been a good idea.

Other locations where you hike more than a football field and higher than a 10-story building:

1. The access to Saphire Bowl at Blackcomb
2. Access to Schaeffer's, etc. at Copper
3. Access to the Hanging Valley at Snowmass
4. Access to Gowdy's, AMF, and Ptarmagin at Snowmass
5. Access to the Cirque at Winter Park

Need I continue?

While that may be true, there is a stated policy to "Keep off closed trails and out of closed areas." And the Colorado skier code is pretty explicit that it is on the skier to know what is closed.

When skiers bypass the closed upper entrance, use the lower entrance, and then hike up -- to me that is a pretty clear violation of that policy.

Will Vail and other ski area probalby make this more explicit in the future (no uphill hiking in certain areas)? Probably. Were they legally liable? I don't think so.

Did they know that the upper entrance was closed? The lower entrance was open, and, as noted above, there is no prohibition on hiking uphill.

As noted by the courts, the issue is a lot more complicated than many of the comments in this thread indicate. Hence, the need for a trial. The jury ruled, but if there was no controversy, there wouldn't have been a trial, as the judge(s) (at three levels of adjudication) could simply have dismissed on the basis of the law.

Mike

 

[Mike King]

In addition, did they know that by entering the lower gate, traversing, and hiking up that they were entering the closed portion of the run?

 

[jmeb]

Did they know that the upper entrance was closed? The lower entrance was open, and, as noted above, there is no prohibition on hiking uphill.

I don't mean to say there is no controversy -- esp around if Vail knew this was a common practice but did nothing to curtail it.

But the law is pretty clear that it is on skiers to see closure signs and obey them. And while there is no explicit prohibition on hiking uphill, it would certainly fall into the accessing closed terrain.

From what I remember about the case, the fatal run was not their first. They had done this multiple times on the day. I can't imagine any skier I know hiking up a run multiple times if they could've simply accessed from a higher gate.

 

[Mike King]

But the law is pretty clear that it is on skiers to see closure signs and obey them. And while there is no explicit prohibition on hiking uphill, it would certainly fall into the accessing closed terrain.

If the law was clear, the judge(s) would have dismissed the case. In the event that the facts are unclear, the matter is sent to the jury. Juries do not rule on the law, judges do. So, by the nature that the case was appealed to the appellate court and then to the supreme court, the law was not clear, but had to be clarified. Remember that the supreme court found that Vail in this case could be found negligent and the matter that the jury decided was whether they were or not. So, the law was unclear.

The jury found that Vail was not negligent, but the law had to be clarified by two appellate courts. That doesn't sound to me like the parties should have known what the law was, particularly as they were minors.

Mike

 

[fatbob]

You might play the innocence card as they were kids or if they were visiting clueless tourists but my understanding was that no- one would do such a hike if the upper gate were open and chances were they had skied past a closed upper gate in arriving at the lower gate.

I'm not trying to be a dick about it but if you choose to ski in high consequence resort terrain IMV you take on personal responsibility. And if you aren't old/ mature enough to understand that then it's on your parents. Which is why I think the case remains more one about grief than about problematic law.

 

[SBrown]

In addition, did they know that by entering the lower gate, traversing, and hiking up that they were entering the closed portion of the run?

I think so. From the testimony (all taken from Vail Daily articles): "Matthew Frampton guessed he has made the climb two dozen times when the upper Prima Cornice gate was closed. It takes about five minutes, he said." [emphasis mine]

And

"Gottschalk told the jury that one of the boys with Conlin will testify that he opted not to sidestep up the run because it felt like coming to the front of a house that you're not supposed to be in and then going around to the back of the house and entering anyway."

 

[SBrown]

Other locations where you hike more than a football field and higher than a 10-story building:

1. The access to Saphire Bowl at Blackcomb
2. Access to Schaeffer's, etc. at Copper
3. Access to the Hanging Valley at Snowmass
4. Access to Gowdy's, AMF, and Ptarmagin at Snowmass
5. Access to the Cirque at Winter Park

Need I continue?

But that's the only way to access those runs, which are specifically hike-to terrain. Upper Prima is not like that, you can ski right by it. The better analogy would be if Pali Face/Main Street etc were closed but International were open; ski partway down the east side of the lift, then hike up into the west side into Main Street. That's just skirting the closure.

 

[jmeb]

If the law was clear, the judge(s) would have dismissed the case. In the event that the facts are unclear, the matter is sent to the jury. Juries do not rule on the law, judges do. So, by the nature that the case was appealed to the appellate court and then to the supreme court, the law was not clear, but had to be clarified. Remember that the supreme court found that Vail in this case could be found negligent and the matter that the jury decided was whether they were or not. So, the law was unclear.

The jury found that Vail was not negligent, but the law had to be clarified by two appellate courts. That doesn't sound to me like the parties should have known what the law was, particularly as they were minors.

Mike

I am not saying that the case was clear. Or that the skiers knew the law.

I'm saying that the law is clear that skiers have a responsibility to know what terrain is closed and respect it. I don't think that this was the legal question that caused confusion.

"(5) Each skier has the duty to heed all posted information and other warnings and to refrain from acting in a manner which may cause or contribute to the injury of the skier or others. Each skier shall be presumed to have seen and understood all information posted in accordance with this article near base area lifts, on the passenger tramways, and on such ski slopes or trails as he is skiing. Under conditions of decreased visibility, the duty is on the skier to locate and ascertain the meaning of all signs posted in accordance with sections 33-44-106 and 33-44-107."

"(3) No skier shall ski on a ski slope or trail that has been posted as "Closed" pursuant to section 33- 44-107 (2) (e) and (4)."

I think the confusing legal question was what responsibility Vail had if they knew the practice of uphill hiking was in an area.

 

[Mike King]

You can ski/hike into AMF from Ptarmigan and into parts of Gowdys from AMF. You can also ski/hike into the hanging valley from possible. You can also ski directly into Saphire bowl from Spanky’s or hike in from Blackcomb glacier. At Copper, you can hike/ski into Union Peak or take the traverse and hike from buzzards alley.

Complex terrain often has multiple entrances and often involves hiking.

The point is that resort skiing is NOT only a downhill sport. Evidently the Supreme Court agreed otherwise the case would likely have been dismissed as there would’ve no controversy.

Just saying that we shouldn’t be so quick to judge the actions of the kids. Should they have known better? Probably. But Vail is not blameless either (IMHO).

 

[fatbob]

I'm not sure what I'm missing

Colorado skier code obligation on skier to know what is open or closed

Is it closed?

Y - own risk
Not sure - own risk
Definitely N - resort still ok as avy an inherent risk of inbound skiing unless they genuinely dngaf about controlling for possible avys

Always seemed a hail mary that Vail would ever be more than 50% responsible thru negligence. Sure Jury trial and dead kid plays well to heartstrings.

 

[Jully]

In addition, did they know that by entering the lower gate, traversing, and hiking up that they were entering the closed portion of the run?

Isn't ignorance not a defense in law and skier code? Obviously if Vail or any other entity is negligent and makes it easy to be technically ignorant about closed terrain, that's another story, but the upper gate was clearly closed, no one was disputing that.

Obviously, like you said, the judge didn't think it was clear cut, but I was a bit surprised at that and would have been shocked if this case went any other way. A horrible tragedy, but Vail was not at fault.

 

[scott43]

Reasonable and prudent? Apparently yes. You can go on with what-ifs forever..how safe is safe? I think the resort, and others, will take this as a learning experience regardless of a win or loss in court. I'm sure they're not happy about what happened. Perhaps more supervision is required with minors. Is this different if it were a 30 year old local?

 

[tball]

My heart goes out to Taft's parents. I am, again, so sorry for your loss. Thank you for your efforts in pushing this case forward when you did not need to. I can only imagine how difficult these years have been. While most will never realize it, I genuinely believe we are all safer skiing for your efforts. Thank you.

I didn't sit through the testimony, so I can't question the verdict. I'll point out the decision doesn't mean Vail has no culpability in Taft's death, just not the majority. With this verdict, Vail could still be 49% responsible, such is the law.

There are a number of things Vail could have and should have done to prevent the death of a 13-year-old boy. Not doing those things is on them. Taft's actions are on him, RIP.

Before anyone flames me: I have skied Prima Cornice hundreds of times. I have also done that same hike when the upper gate is closed a dozen or so of times. I've read every article and deposition I could find on this case. I believe Vail's actions are reprehensible.

All of this was documented extensively on the EpicSki forum by me and others. Vail bought that forum, shut it down and deleted the content. Coincidence?