Jury Rules in Favor of Vail in Avalanche Death

[tball]

Where the black lines diverge, is actually closer to the lower gate I think. There is no line coming in from the upper gate, which would be more like under "M" in "FATMAP" at the top.

Ah, yes, thanks. The upper gate is above the prominent rock where the crown of the slide was. That rock is really useful for orienting in the various images.

Edit: maybe not. Hmmmmmm

Did anyone hear if the jury ever visited the site? I read that's why they moved the trial from Broomfield to Edwards at Vail's request. I hope they paid a visit as it's really tough to get a perspective from just the maps and photos.

 

[tball]

I found some POV videos of Prima Cornice! I'm hopeful these videos will help put this all into perspective.

The first video is up by the prominent rock showing the terrain, early season conditions, and the slide path. Again, the crown of the avalanche was just uphill of the prominent rock:



This second video shows a skier entering the upper Prima Cornice gate, skiing down the ridge over the prominent rock, then entering the run via the same traverse as the skier in the first video. This gives you an idea of the distance from the upper gate to the prominent rock:


Finally, this third video is the one that terrifies me. This shows three kids entering the lower Prima Cornice gate where Taft Conlin entered. You immediately see how avalanche prone the terrain is just inside the second gate. These kids then end up skiing all over the slide path where Taft was killed, This video was posted a year and a day after Taft Conlin died:


That video also gives us a great look at the hike Taft did to get up to the rock. This image is standing at the lower entrance and you can see the prominent rock at the top of the hike:



That shot also shows how easy it would be to put a no hiking or closed sign right there. And, how ridiculous it is for Vail Ski Patrol to claim they never noticed any tracks hiking up that ridge, for 26 years.

If anyone wonders why it matters if avalanche mitigation was done or not, that last video with the kids is why.

 

[fatbob]

If anyone wonders why it matters if avalanche mitigation was done or not, that last video with the kids is why.

Yeah it matters. But as no one was caught and killed in an Avy by skiing down from the lower gate that wasn't being tested in court.

Also the kids video is kinda interesting - are those kids parents totally ok with their kids being given free unsupervised rein to ski that terrain and exclaim "that was awesome" as they headbutt a rock? I guess they are. Hard to see if parents let kids with that ski level ski whatever they want that resorts should have additional burdens of responsibility to pick up the slack.

 

[jmeb]

The most odd thing about this case is that -- had the avalanche and fatality occurred but the upper gate had been open, there would be no case at all against Vail. It would be chalked out to the inherent danger of skiing which includes inbounds avalanches.

My key takeaways are:

- Vail probably should have put up a rope, or sign to limit uphill hiking if they knew it was going on. I think even Vail probably agrees on this after the fact.
- An avalanche occurred in an an area the ski resort had intended to close. No avalanche occurred on open terrain. (I don't think anyone disputed this fact?)
- Smallish avalanches in treed terrain are very dangerous. About half of avalanche deaths are from blunt force trauma, like hitting a tree or rock at high speed. (I know people will argue with the classification as small. I'm going by CAICs description of this as a D2, which is small-medium. D1 = relatively harmless to people. D2 = Could bury, injure, or kill a person)
- If you're going to ski in avalanche terrain in Colorado -- ultimately -- your safety is your responsibility. Not the ski areas. That means you cannot presume avalanches are mitigated to your acceptable risk level, as we all have different risk acceptance levels. It may mean you don't ski first tracks down that 40-degree face, and wait for it to be well tracked out with likely trigger points hit. It may mean you don't ski a line at all after a big days snowfall. It may mean you ski with a beacon/shovel/probe and someone else with avy gear and know how to use it. It may be you explicitly check in with patrol about their work on particular faces.

EDIT: Addendum. I can't remember who recommended this (maybe @Ken_R ?), but I would love to see avy danger level / forecast posted at lift lines which access serious avalanche terrain. I think it is on resorts, skiers, and all of ski culture to be aware of the dangerous in the mountains.

 

[VinnyRavager]

"- If you're going to ski in avalanche terrain in Colorado -- ultimately -- your safety is your responsibility. Not the ski areas. That means you cannot presume avalanches are mitigated to your acceptable risk level, as we all have different risk acceptance levels."

Words to live by. Every skier should already know this, but alas, the majority doesn't even have a clue.

 

[tball]

- An avalanche occurred in an an area the ski resort had intended to close. No avalanche occurred on open terrain. (I don't think anyone disputed this fact?)

An avalanche did occur on open terrain.

The whole story is the avalanche was triggered on closed terrain, but much if not most of the slide propagated to open terrain. That's as defined by Vail as the open terrain being accessible skiing downhill.

You can see the location of slide path and the gates in this post. In this video, you can see how these kids entering the lower gate were skiing all over the slide path even after first traversing left.

It's really important to note the avalanche also hit the open terrain. By good fortune, the slide didn't catch anyone who didn't hike the ridge.

I'll also comment that:

• It took six years of litigation to determine the upper portion of the run was closed, including some difficult to believe testimony from Vail Ski Patrol about never seeing anyone hike the ridge.
• The slide was triggered just inside a rope line that poachers duck all the time. Just look at all the tracks next time you ski Vail.
• The cruiser run on the other side of the closure rope sees a lot of traffic. It's on the front side of Vail just downhill from Vail Mountain Top. That's one of the most crowded places in skiing, where currently two high-speed six-packs and a high-speed quad all drop off at the same point. Lots of opportunities for someone to make a bad choice and poach there.

And I'll also remind folks that by all accounts Vail did no avalanche mitigation. Not on the open nor the closed portion of the run. That's per the deposition of the head of Vail Ski Patrol posted above.

 

[jmeb]

The finding was that the upper portion of the run was closed. You can believe otherwise, but that is the determination of the courts. I think we all agree the demarcations should have been clearer.

That an avalanche crossed into open terrain doesn't really matter here. The question is where it could be triggered from. Skiing over the slide path is not the same thing as skiing over the point that would trigger. This is a common fallacy that leads to unsafe behavior in avalanche terrain: people see a bunch of people ski a slide path and believe it is safe to ski, then they hit a trigger and voila, unsafe. Meanwhile, you could ski the lower parts of the slide path all day and never trigger an avalanche. So unless you're arguing that they triggered the avalanche from traversing alone (which is against the facts of the case as presented by both sides) then it doesn't really matter.

And as per always: avalanches are an inherent risk of skiing in CO, even in open terrain.

 

[tball]

Taft hiked up 100 vertical feet, at most. The avalanche came down 400 vertical feet. That's 300 vertical feet where the avalanche was on the open terrain as determined by the ruling.

You can't say no avalanche occurred on open terrain.

The fact the avalanche crossed into open terrain does matter. Vail can't claim avalanche mitigation wasn't necessary because the slide was on closed terrain. There could have been skiers caught in the slide who only skied on the open portion of the run. Fortunately, none were.

 

[Mike King]

The finding was that the upper portion of the run was closed. You can believe otherwise, but that is the determination of the courts. I think we all agree the demarcations should have been clearer.

That the avalanche crossed into open terrain doesn't really matter here. The question is where it could be triggered from. Skiing over the slide path is not the same thing as skiing over the point that would trigger. This is a common fallacy that leads to unsafe behavior in avalanche terrain: people see a bunch of people ski a slide path and believe it is safe to ski, then they hit a trigger and voila, unsafe. Meanwhile, you could ski the lower parts of the slide path all day and never trigger an avalanche. So unless you're arguing that they triggered the avalanche from traversing alone (which is against the facts of the case as presented by both sides) then it doesn't really matter.

And as per always: avalanches are an inherent risk of skiing in CO, even in open terrain.

Well, I respectfully disagree. An avalanche, even starting on a closed run, that runs into an open run IS a problem. One doesn't need a human trigger to cause a release, they can occur naturally as well. And whether a ski area operator is legally liable or not for any injury or death caused by such an event, they still have a responsibility to mitigate it by bootpacking, cutting, bombing, or closing runs.

It's easy to say that avalanches are an inherent risk of skiing and that it is your personal responsibility to manage your risk. But also realize that there is a very large gap in knowledge and expertise between even the most ardent and educated public skiers (let alone the general skiing public) about the snowpack conditions in general and on the specific slopes of a ski area. While lawmakers have found it useful to absolve resort operators of liability for avalanches, they still have a responsibility to attempt to keep people safe. And keeping people safe means mitigating avalanche hazards through appropriate means, be it bootlicking, cutting, bombing, or closing runs. This is the responsibility (even if they aren't accountable) of ski patrol who are on the hill every day, have a long history of observing the slopes, and monitor the snowpack through time.

IMHO, the skier safety act goes too far in absolving operators of liability. The threat and cost of liability and litigation is, IMHO, a component of incentivizing responsible behavior. It's about putting some accountability behind responsibility. That being said, I wouldn't want to see the resorts opened up to the full onset of the plaintiff's bar. But a smidgeon more accountability would make for some better decisions, IMHO.

Mike

 

[fatbob]

While I agree it is a problem in the generality of avalanche control it isn't a problem specific to this case. If other skiers were caught in the Conlin triggered avalanche and died there would probably have been a bunch of additional lawsuits being thrown around at his estate, Vail etc. But they weren't and fortunately the grief wasn't compounded.

 

[Ken_R]

A lot of great info posted!

Ok, several thoughts:

- Vail should have closed the entire area. No question about it given the avy danger that day (and that season for that matter) and the terrain. The gates are really close and access the avy terrain just as much.

- VERY steep rocky slope right into tight trees. I would not even get near that slope in the backcountry

- The juice isnt worth the squeeze...the skiing is pretty bad in that spot unless there are pristine conditions (thats almost never the case at Vail anywhere)

- Agree that the ski patrol and other Vail employees DEFINITELY knew that people traversed the avy slope from the lower gate ALL the time.

 

[fatbob]

IMHO, the skier safety act goes too far in absolving operators of liability. The threat and cost of liability and litigation is, IMHO, a component of incentivizing responsible behavior. It's about putting some accountability behind responsibility. That being said, I wouldn't want to see the resorts opened up to the full onset of the plaintiff's bar. But a smidgeon more accountability would make for some better decisions, IMHO.

Moving off the specifics of the case how do you define that smidgeon of accountability? 99.99% of inbounds skiers will never get near being involved in an inbounds avy, at worst they'll encounter some avy debris and think "good job I wasn't right here when that came down" but not really know if that was a result of control work, natural release out of hours or natural or skier triggered release in opening hours. Should that number be 99.999% for the resort not to be accountable and what about black swans - if say a particular pitch has never avyed but does so - is patrol negligent for having made a well evidenced plan for reduced control work.

Point is if anyone gets caught in an inbounds avy then they can claim resort negligence regardless whether the incidents proactively avoided through "good" resort control are 100 or 100million.

 

[Mike King]

Well, it's not just about avalanche risk, there are other risks that only the ski area can mitigate. Such as travel of snowmobiles on open runs, hazards (such as protruding nails, rails, etc.) on ski bridges, etc. that Vail has specifically been absolved of liability for that no other business would have been. Since we are also moving into the realm of hypotheticals, it would seem that an operator should not be liable for a skier involved avalanche in directed skiing (presumably patrol would've highlighted the risk and skiers are undertaking the activity fully informed of the risk). But perhaps they should be liable for negligence. In other words, not liable for avalanches in general, but if they knew that risk was elevated, closed a run, but didn't close other runs that the avalanche ran onto and someone was injured on an open run, potentially liable for negligence.

Mike

 

[tball]

If other skiers were caught in the Conlin triggered avalanche and died there would probably have been a bunch of additional lawsuits being thrown around at his estate, Vail etc. But they weren't and fortunately the grief wasn't compounded.

It's worth noting Vail can't be sued in that hypothetical case based on the CO Supreme Court ruling in the Winter Park case regarding the inbounds avalanche death that same tragic day.

No doubt someone or the estate of someone who triggers a slide on a closed run would be liable to others injured or killed, but not the ski area.

Colorado ski areas are pretty much immune from all liability. They can't be sued for inbounds avalanches on open or closed terrain. They can't be sued for failure to close an avalanche-prone run or one that is dangerous for any other reason. They can't be sued if they fail to perform avalanche mitigation on a ski run even if that run will obviously slide when the first skier hits it.

That's why I agree with Mike's statement here when it comes to avalanche mitigation:

IMHO, the skier safety act goes too far in absolving operators of liability. The threat and cost of liability and litigation is, IMHO, a component of incentivizing responsible behavior. It's about putting some accountability behind responsibility. That being said, I wouldn't want to see the resorts opened up to the full onset of the plaintiff's bar. But a smidgeon more accountability would make for some better decisions, IMHO.

How can our ski areas be held a bit more accountable to perform ANY avalanche mitigation, let alone perform it to a standard of reasonable care?

Is that accountability possible without the end result being much of the terrain many of us love to ski is shut down?

 

[Mike King]

It's worth noting Vail can't be sued in that hypothetical case based on the CO Supreme Court ruling in the Winter Park case regarding the inbounds avalanche death that same tragic day.

No doubt someone or the estate of someone who triggers a slide on a closed run would be liable to others injured or killed, but not the ski area.

Colorado ski areas are pretty much immune from all liability. They can't be sued for inbounds avalanches on open or closed terrain. They can't be sued for failure to close an avalanche-prone run or one that is dangerous for any other reason. They can't be sued if they fail to perform avalanche mitigation on a ski run even if that run will obviously slide when the first skier hits it.

That's why I agree with Mike's statement here when it comes to avalanche mitigation:


How can our ski areas be held a bit more accountable to perform ANY avalanche mitigation, let alone perform it to a standard of reasonable care?

Is that accountability possible without the end result being much of the terrain many of us love to ski is shut down?

You might have to prove gross negligence, which is a pretty high standard, to collect. And given that you could still define avalanches as an inherent risk of skiing, it would be pretty hard to find circumstances that would result in a verdict against the ski area. But, should the resort do something stupid, like close half a run but not the whole run even though they intended to close the whole run, or even though they knew that it was likely that the run out would come onto an open run, the resort would be liable for damages.

 

[tball]

You might have to prove gross negligence, which is a pretty high standard, to collect. And given that you could still define avalanches as an inherent risk of skiing, it would be pretty hard to find circumstances that would result in a verdict against the ski area.

Not even gross negligence. There is no way to sue a ski area due to an in-bounds avalanche.

The Colorado Supreme Court ruling is very clear. Here's the summary:

The Colorado Supreme Court holds that an avalanche that occurs within the bounds of a ski resort qualifies as an “inherent danger[] and risk[] of skiing” under the Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. (2015). The definition of “inherent dangers and risks of skiing” in section 33-44-103(3.5), C.R.S. (2015), specifically includes “snow conditions as they exist or may change.” By its plain meaning, this phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow. As such, section 33-44-112, C.R.S. (2015), precludes skiers from recovering for injuries resulting from in-bounds avalanches.
​

 

[François Pugh]

Take home: it's pretty hard to blame being buried by an avalanche on someone else, just like back in the day.
If you want to see the person who is ultimately responsible for your safety, look in a mirror.
What's all this nonsense about children; 13 years old is old enough to make and be held responsible for one's decisions.

 

[Mike King]

Not even gross negligence. There is no way to sue a ski area due to an in-bounds avalanche.

The Colorado Supreme Court ruling is very clear. Here's the summary:

The Colorado Supreme Court holds that an avalanche that occurs within the bounds of a ski resort qualifies as an “inherent danger[] and risk[] of skiing” under the Ski Safety Act of 1979, §§ 33-44-101 to -114, C.R.S. (2015). The definition of “inherent dangers and risks of skiing” in section 33-44-103(3.5), C.R.S. (2015), specifically includes “snow conditions as they exist or may change.” By its plain meaning, this phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow. As such, section 33-44-112, C.R.S. (2015), precludes skiers from recovering for injuries resulting from in-bounds avalanches.
​

That suggestion was how the safety act might be altered to provide some semblance of accountability.

 

[Mike King]

Take home: it's pretty hard to blame being buried by an avalanche on someone else, just like back in the day.
If you want to see the person who is ultimately responsible for your safety, look in a mirror.
What's all this nonsense about children; 13 years old is old enough to make and be held responsible for one's decisions.

Right, and that's why we let 13 yo's drive, drink alcohol, smoke marijuana, buy a gun, work, serve in the armed forces, and vote.

 

[tball]

That suggestion was how the safety act might be altered to provide some semblance of accountability.

Ah, got it, sorry. I think your suggestions seem reasonable if it's possible to combine gross negligence with inherent risk.

I wonder if that increased liability would make a difference given how rare inbounds slides are with injury or death.

I think what I desire is some assurance ski areas are performing avalanche mitigation to some reasonable standard. I'm happy to take the risk if it has been, but there currently is no way of knowing.

All the suggestions to be responsible for yourself are impossible on steep terrain inbounds if you don't know what mitigation, if any, has been done to a run and surrounding slopes.