or Connect
EpicSki › The Barking Bear Forums › On the Snow (Skiing Forums) › General Skiing Discussion › Judge rules that Vail Resorts can be sued for avalanche death
New Posts  All Forums:Forum Nav:

Judge rules that Vail Resorts can be sued for avalanche death - Page 10

post #271 of 296
Quote:
Originally Posted by segbrown View Post
 

However, Gary Pesso, a ski instructor at Vail and Beaver Creek, told the Post last week that he and many others have skied Prima Cornice that way for years because the snow is better. "I don't think the kids did anything wrong," Pesso said. "As long as you don't cross any ropes, you can ski it any way you want. If the terrain is open, it's considered safe and fair game."

 

 

This will probably be a big deal if it goes to trial. Having an employee of the resort testify that side stepping was an acceptable practice changes the game completely from someone of the general public testifying that it was.

post #272 of 296
Quote:
Originally Posted by lonewolf210 View Post
 

This will probably be a big deal if it goes to trial. Having an employee of the resort testify that side stepping was an acceptable practice changes the game completely from someone of the general public testifying that it was.

 

I understand the legal weight of the argument (resort employee), but from a practicality point of view, I've seen instructors do really stupid things regarding snow safety. Their opinion is not of the same value as ski patrol/snow safety. Obviously this is a broad generalization as there are instructors who are also experienced backcountry skiers.

 

To anyone with even a basic understanding of avalanches, side-stepping/hiking up from a gate into different terrain should be intuitively wrong in avalanche conditions. Lots of people do it, but I don't think all are ignorant of the risk they are taking.

post #273 of 296
Quote:
Originally Posted by JayT View Post
 

Every case is unique.  Either way there is NO precedent.  Ask a lawyer if you don't believe me.

 

That's not what I am getting it.  This isn't a common law principle precedent being challenged - it a specific provision of state code.  Should Vail lose on the point of avalanche as inherent risk, then the interpretation of the intent of the law has changed.  

 

The Ski Safety Act relies on a very key phrase when defining inherent risks for "snow conditions as they exist or may change" and "surface or sub-surface".  That phrase is 'such as'.  Following each use of such as is a list:

 
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

 

Is an avalanche a snow condition or is it a surface or subsurface condition, or it is neither?  It is certainly a snow condition as exists or may change, but it is certainly not ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, etc. even though an avalanche might contain any of those things.

 

Is an avalanche a surface or subsurface condition, or is it neither?  It is movement of the surface, but it isn't bare spots, forest growth, rocks, stumps, trees, etc. even though an avalanche might contain many of those things.

 

"Such as" is a problem.  Without it, an avalanche sure sounds like an inherent risk.  With it, the list doesn't seem applicable.  So we'd like to know (?), but the problem goes beyond avalanches.  If the usage of "such as" is determined to have had the legislative intent to define exclusionary events such as avalanches because they are either not mentioned or directly related to the list, then what about everything else not on those lists or directly related?

 

I think this is further complicated because "included but not limited to" is used further down in talking about terrain, implying that "such as" is intentional to mean a "list that contains similar attributes" rather than a "list that is not all inclusive and may include items that do not have similar attributes".

 

I think there is some risk to the legislative intent of risk allocation, and I'm pretty wary of what gets rammed through that opening if it happens.  I get the interest in seeing this through,  I just think the practical implications are entirely on the down side because you get a shift in a risk allocation you are going to get a corresponding shift in operator behavior, at least with a larger corporation with an in-house legal department.

 

And we have already seen this, I believe, as your annual Epic pass now has you bearing Vail's legal costs should you bring suit against them and lose.  That's a chilling effect of cases like this, especially if they are successful.

post #274 of 296
Quote:
Originally Posted by NayBreak View Post
 

 

 

And we have already seen this, I believe, as your annual Epic pass now has you bearing Vail's legal costs should you bring suit against them and lose.  That's a chilling effect of cases like this, especially if they are successful.

 

I didn't know that.  Do you have anything in US consumer laws about unfair contract terms etc?  Can see the point about deterring frivolous lawsuits but there has to be some conceivable scenarios e.g. the guy who was injured when a raised cat blade hit the gondola he was riding in where resorts can be negligent.

 

 

Re mediation - good outcome if it ends there.  Vail agree to put up some more signage in the specific area and revise ski patrol protocols, insurers cover parents costs to date. Both parties kick into a memorial Avy Education fund for teens.

post #275 of 296
Quote:
Originally Posted by NayBreak View Post
 
Quote:
Originally Posted by JayT View Post
 

Every case is unique.  Either way there is NO precedent.  Ask a lawyer if you don't believe me.

 

That's not what I am getting it.  This isn't a common law principle precedent being challenged - it a specific provision of state code.  Should Vail lose on the point of avalanche as inherent risk, then the interpretation of the intent of the law has changed.  

 

 

Yep, it's not unique to this case.  It's a determination of law.  

 

Here's the Winter Park judges ruling:

 

 
The inbounds avalanche that killed Mr. Norris is an inherent danger and risk of skiing even though “avalanche” is not specifically listed under C.R.S. §33-44-103(3.5)
 
After carefully reviewing the briefs and applicable authorities, and construing allegations of the complaint strictly against Winter Park, the Court concludes that the inbounds avalanche falls squarely within the definition of inherent dangers and risks of skiing. The complaint alleges that Winter Park “knew or should have known that the existing snow base, upon which... storms deposited their snowfall, was weak, unstable and in a condition known as ‘rotten snow’ which created dangerous avalanche conditions due to weakness, instability and poor condition of that pre-existing snow base.” Complaint at ¶20. Ms. Fleury also points to warnings from the Colorado Avalanche Information Center indicating a heightened risk of avalanche danger resulting from a combination of terrain, weather conditions, and snow pack. Complaint ¶9-10.The warnings cautioned “natural and human triggered avalanches are very likely. Be careful near or below any slope over 30 degrees.” Id. The warning also indicated new snow would fall and “the weak snowpack will not be able to handle even this modest new load.” Id. These allegations, when taken as true, indicate that the combination of “changing weather conditions,” “snow conditions,” and “variations in steepness or terrain” as enumerated under C.R.S. §33-44-103(3.5) created the fatal avalanche.
 
This finding is consistent with rulings of other courts, in particular Kumar v. Copper Mountain, Inc., 431 Fed.Appx. 736 (10 th Cir. 2011) which applies Colorado law. In Kumar, the plaintiff suffered severe injuries when he skied off a cornice that formed where several ski runsconverge at Copper Mountain ski area. Id. at 737. The plaintiff brought both common law negligence and negligence  per se claims against Copper Mountain. Id. The Court concluded that even though “cornice” is not specifically named as an inherent danger and risk of skiing,“the cornice at issue falls within the statutory definition of inherent danger. Id. At 738. At a minimum, it either falls within the section relating to snow conditions as they exist or change, or the provision covering variations in steepness or terrain.” Id
 

Based on the plain language of the statute and the persuasive authority of Kumar, the Court does not agree with Ms. Fleury’s narrow interpretation that C.R.S. §33-44-103 must include the term “avalanche” in order for Winter Park to have immunity. The SSA defines inherent dangers and risks of skiing as “those dangers and conditions that are part of the sport of skiing, including changing weather conditions, snow conditions as they exist or may change...variations in steepness or terrain...” (emphasis supplied). While the Colorado Supreme Court has reserved judgment on whether the list of inherent dangers is exclusive, “it has indicated that the word ‘include’ typically signifies extension or enlargement and is not definitionally equivalent to the word ‘mean.’” Barrett, 259 F.3d at 1214

 

 

See the entire ruling here:

http://www.scribd.com/doc/120107781/Order-Granting-the-Defendants-Motion-for-Determination-of-Law-and-for-Ju

 

That should be required reading for every Colorado skier.  It certainly was enlightening for me.  The ski areas have no legal requirement to keep us safe other than on the lifts and in the very, very few areas specifically outlined in the skier safety act.

 

post #276 of 296
Quote:
Originally Posted by fatbob View Post
 
Quote:
Originally Posted by NayBreak View Post
 

And we have already seen this, I believe, as your annual Epic pass now has you bearing Vail's legal costs should you bring suit against them and lose.  That's a chilling effect of cases like this, especially if they are successful.

 

I didn't know that.  Do you have anything in US consumer laws about unfair contract terms etc?  Can see the point about deterring frivolous lawsuits but there has to be some conceivable scenarios e.g. the guy who was injured when a raised cat blade hit the gondola he was riding in where resorts can be negligent.

 

 

I think I read either UT or CA passed a statute so they can't make you pay their legal fees as a condition of your season pass.  I'd love to see Colorado do that.   With the $250K cap as the upside, and the ski area's legal fees in addition to your own legal fees as the downside, it would be a high risk gamble to bring a suit even if you clearly were in the right.

post #277 of 296
Quote:
Originally Posted by gramboh View Post
 

 

I understand the legal weight of the argument (resort employee), but from a practicality point of view........Their opinion is not of the same value as ski patrol/snow safety.

 

Unless of course you happen to have a Ski Patrol Director that doesn't seem to know her mountian, how it is used or maintained or the truth for that matter.

post #278 of 296
Quote:
Originally Posted by Dane View Post
 

 

Unless of course you happen to have a Ski Patrol Director that doesn't seem to know her mountian, how it is used or maintained or the truth for that matter.

Seriously.

 

Just like we are wondering if Pesso is going to have a job, you have to wonder about how Rust keeps her job.  She does not exactly appear to be a sterling employee at this point.

 

If you ran a ski area and found out the head of your ski patrol lied about safety work done and falsified records of same, why would you keep them on? Keeping them around makes it look like you condone their behavior.

 

Its my belief that she still has a job for the moment because A) firing her right now is an implicit admission that she, as a senior official of the ski area, screwed up, or B) somebody worries that if they fire her, she will disclose who above her instructed her to mislead CAIC, trump up records of mitigation, and the other lies.

 

I'm not saying B happened, but if she was my employee, she would be fired. If she keeps her job after this lawsuit is out of the way, I would be more inclined to suspect B.

post #279 of 296
Thread Starter 
At least we know what prompted that strange series of articles in the Denver Post about ski patrol and accident reporting etc. It doesn't make the articles any better, because they still contain very little in the way of evidence ... At least we see some evidence here. Many months later.
post #280 of 296
Thread Starter 
Quote:
Originally Posted by anachronism View Post

Seriously.

Just like we are wondering if Pesso is going to have a job, you have to wonder about how Rust keeps her job.  She does not exactly appear to be a sterling employee at this point.

If you ran a ski area and found out the head of your ski patrol lied about safety work done and falsified records of same, why would you keep them on? Keeping them around makes it look like you condone their behavior.

Its my belief that she still has a job for the moment because A) firing her right now is an implicit admission that she, as a senior official of the ski area, screwed up, or B) somebody worries that if they fire her, she will disclose who above her instructed her to mislead CAIC, trump up records of mitigation, and the other lies.

I'm not saying B happened, but if she was my employee, she would be fired. If she keeps her job after this lawsuit is out of the way, I would be more inclined to suspect B.

This is one reason (maybe the only) I would like to see it go to trial. Unfortunately, due to past experience, it's hard to trust what is in newspapers these days.
post #281 of 296

@anachronism consider that she may continue to have her job because she's doing exactly what she is expected to do as upper management.   If it goes to trial, the testimony of the lower level employees will be telling.   There are just too many people who know the truth about how that terrain was managed.

post #282 of 296

It is really, really not in Vail's best interest to go to court so I suspect they will offer a really large cash settlement. It is sort of like the more mistakes and out and out screw ups and fudging of records, the more they will pay. The fact that the parents have said that they will donate any proceeds to mountain safety education makes it even easier for Vail to be very magnanimous in the name of their own interest in mountain safety, and still not admit liability as per a standard out of court insurance settlement.

 

IMO if Vail doesn't settle in a manner as I have suggested, then they really do need to clean house way high up the corporate hierarchy.

post #283 of 296
Thread Starter 

No deal 

The parents of 13-year-old Taft Conlin, who died in an avalanche at Vail in 2012, and representatives of the ski resort were unable to reach an agreement in court-ordered mediation Thursday.

Details of the mediation are confidential, said James Heckbert, attorney for the parents, Stephen Conlin and Louise Ingalls, who are suing for wrongful death. Representatives from Vail could not be immediately reached.

There were no more meetings planned in the court-ordered mediation. The case is scheduled for trial in June 2014.

A critical issue in the case is whether Conlin, who was skiing on Prima Cornice trail on Jan. 22, 2012, was in an open or closed area when he was overcome by an avalanche.

The top entrance to the run was closed, but the bottom gate was open, allowing skiers to go straight, left or to traverse to the right. Conlin and two friends skied to the right near a rock band and sidestepped up into an area between the two entrances. Vail has argued that Conlin "knew or reasonably should have known that the slope uphill from the gate was closed."

There were no rope closures or signs in the area saying that hiking or sidestepping up was prohibited.



Read more: No deal in mediation with Vail and parents of boy killed in avalanche - The Denver Post http://www.denverpost.com/breakingnews/ci_24381691/no-deal-mediation-vail-and-parents-boy-killed#ixzz2igkIPXVo 
Read The Denver Post's Terms of Use of its content: http://www.denverpost.com/termsofuse 
Follow us: @Denverpost on Twitter | Denverpost on Facebook

post #284 of 296
Quote:
Originally Posted by tball View Post

Yep, it's not unique to this case.  It's a determination of law.  

Here's the Winter Park judges ruling:

 

The inbounds avalanche that killed Mr. Norris is an inherent danger and risk of skiing even though “avalanche” is not specifically listed under C.R.S. §33-44-103(3.5)

Thanks for posting this, you keep covering my laziness with actual records smile.gif. Note the focus on the word "include" - that is exactly what I was getting at. This is all about inclusive lists vs. not, that is the precedent that is challenged here. It appears that the Kumar case is a significant precedent on this point, noting also that the CO Supreme Court has apparently weighed in previously on the term "include" in a non-related matter.

As the WP case clearly demonstrates, the avalanche claims alone (27 & 31 in the filing) are DOA...but that has no effect on what is obviously the thrust if the case in signage / closure negligence.

Edit: I just read the WP ruling. I agree completely with @tball, this is must reading. This point is particularly telling:

"The SSA [Ski Safety Act] contains no language that could be remotely viewed as requiring Winter Park to warn skiers of high avalanche danger in the area in which Mr. Norris skied. Consequently, there are not issues of material fact about whether Winter Park had a duty to warn or close the trail."

Also...

"If a ski area can only be immune after it has employed all reasonable safety measures to mitigate inherent dangers, then a primary purpose of the SSA would be defeated. In other words, a ski area could be liable for any injury resulting from failure to mark a bare patch, ice, or man-made snow. This contradicts the plain language and purpose of the SSA and, as explained above, has failed to gain traction in the courts." (Emphasis is mine)
Edited by NayBreak - 10/24/13 at 10:31pm
post #285 of 296
Quote:
Originally Posted by NayBreak View Post

Edit: I just read the WP ruling. I agree completely with @tball, this is must reading. This point is particularly telling:

"The SSA [Ski Safety Act] contains no language that could be remotely viewed as requiring Winter Park to warn skiers of high avalanche danger in the area in which Mr. Norris skied. Consequently, there are not issues of material fact about whether Winter Park had a duty to warn or close the trail."
 

 

This is the part I hope folks digest.   Colorado ski areas have no duty to warn about or close dangerous trails.  It's more broad than just avalanches.   They could leave all runs open and unmarked and never lose a lawsuit from someone being hurt or killed.  It really is up to us as skiers to assess the risks of where we ski.

 

 

So what's different about the Vail case?   Vail is claiming the run was closed.   Ski areas don't have to close dangerous trails, but if they do it needs to be marked properly under the SSA.   That's why the Taft's parents have a case, otherwise they wouldn't.

 

The whole Vail case is crazy.  Here's my biased view of this insanity:

 

  • The trail Taft died on wasn't really closed as Vail claims, IMO.
  • Vail claimed it was closed, I'm guessing, because they don't want people to think avalanches can happen on open trails.
  • If Vail hadn't claimed the trail was closed, the parents wouldn't have a case to bring under the law.
  • The parents are angry that Vail is claiming the trail was closed, otherwise they would not have sued.
  • It sounds like mediation failed because neither party would give on if the trail was open or closed.

 

I think Vail is between a rock and a hard place between a) admitting the trail was open, and b) airing their dirty laundry in a very public trial and probably losing in the end. 

post #286 of 296
Quote:
Originally Posted by tball View Post
 

 

This is the part I hope folks digest.   Colorado ski areas have no duty to warn about or close dangerous trails.  It's more broad than just avalanches.   They could leave all runs open and unmarked and never lose a lawsuit from someone being hurt or killed.  It really is up to us as skiers to assess the risks of where we ski.

 

 

By the way, this is largely Wolf Creek's attitude- they don't really close anything- if a lift runs to it, and the lift is spinning, that terrain is open. If you want to ski that run with a 15" base of unconsolidated snow on top of a bare rock scree field, go nuts. Its your ass. EVERY SINGLE RUN ACCESSIBLE BY BONANZA WAS OPEN LAST WEEKEND, even though the coverage was so minimal that "groomed" runs required crossing running streams. I hiked and attempted to straightline Exhibition Ridge, and rammed a snow shark rock with both tips and double ejected into another snow shark in the runout. It hurt, really, really bad. But it was my choice and me accepting the risk (and I knew that outcome was basically coin-flip possible).

 

I suspect one of the reasons they do this is just what you said- to absolve themselves of liability by leaving the decision of whether the terrain is in safe skiable condition to the one that will be harmed if it is not.

 

Wolf does close terrain for avalanche risk. But nothing is roped off for the trivial reason of not having enough snow to be safe at all.

post #287 of 296
Quote:
Originally Posted by tball View Post
 

The whole Vail case is crazy.  Here's my biased view of this insanity:

 

  • The trail Taft died on wasn't really closed as Vail claims, IMO.
  • Vail claimed it was closed, I'm guessing, because they don't want people to think avalanches can happen on open trails.
  • If Vail hadn't claimed the trail was closed, the parents wouldn't have a case to bring under the law.
  • The parents are angry that Vail is claiming the trail was closed, otherwise they would not have sued.
  • It sounds like mediation failed because neither party would give on if the trail was open or closed.

 

I think Vail is between a rock and a hard place between a) admitting the trail was open, and b) airing their dirty laundry in a very public trial and probably losing in the end.

 

I don't think I agree. I think Vail started down the line of "trail closed" because if they successfully make that argument, the case is ironclad done before it even begins. Skier died because they entered terrain marked as closed? Case dismissed. The ski area has zero liability for somebody entering a closure area, NO MATTER WHAT ELSE HAPPENED with regards to the details of this case.

 

Remember that the law is ambiguous with regards to whether avalanches are included in the lift of indemnifications granted by the ski safety acts, and at the time the lawsuit was dropped, the WP ruling had not happened.

 

Vail saw an opportunity to get a dismissal in the case before it even went to trial, where whether avalanches are included in the act would have to be argued. On paper, the "Skier travelled uphill into closed terrain" argument is very persuasive. It persuaded me, because I am a skier and know that climbing uphill into closed terrain is a no-no. To see the gray area in this case, you have to be a skier familiar enough with Vail and this terrain to know that what this kid did has been normal activity for years.  If the judge had been persuaded, this case would have been dismissed before any of the rest of the interesting bits coming out in deposition happened.

 

Vail saw the opportunity to shut this whole thing down and they went for it. I think if there was any ambiguity over whether Tophers was open in the Winter Park case, you would have seen WP go for the same argument.

post #288 of 296
Thread Starter 
Quote:
Originally Posted by tball View Post
 

 

This is the part I hope folks digest.   Colorado ski areas have no duty to warn about or close dangerous trails.  It's more broad than just avalanches.   They could leave all runs open and unmarked and never lose a lawsuit from someone being hurt or killed.  It really is up to us as skiers to assess the risks of where we ski.....

 

 

Yes, and my understanding is that areas are trending toward marking fewer things, just throwing up more signs that say Thin Cover, Ski At Your Own Risk, or such thing. The more that is marked, the higher the expectation that everything will be marked, and that's when these misunderstandings happen. I noticed in Tahoe how little is marked compared to CO ... it is different terrain, so it would be impossible. 

post #289 of 296
Quote:
Originally Posted by segbrown View Post
 

No deal 

The parents of 13-year-old Taft Conlin, who died in an avalanche at Vail in 2012, and representatives of the ski resort were unable to reach an agreement in court-ordered mediation Thursday.

Details of the mediation are confidential, said James Heckbert, attorney for the parents, Stephen Conlin and Louise Ingalls, who are suing for wrongful death. Representatives from Vail could not be immediately reached.

There were no more meetings planned in the court-ordered mediation. The case is scheduled for trial in June 2014.

A critical issue in the case is whether Conlin, who was skiing on Prima Cornice trail on Jan. 22, 2012, was in an open or closed area when he was overcome by an avalanche.

The top entrance to the run was closed, but the bottom gate was open, allowing skiers to go straight, left or to traverse to the right. Conlin and two friends skied to the right near a rock band and sidestepped up into an area between the two entrances. Vail has argued that Conlin "knew or reasonably should have known that the slope uphill from the gate was closed."

There were no rope closures or signs in the area saying that hiking or sidestepping up was prohibited.



Read more: No deal in mediation with Vail and parents of boy killed in avalanche - The Denver Post http://www.denverpost.com/breakingnews/ci_24381691/no-deal-mediation-vail-and-parents-boy-killed#ixzz2igkIPXVo 
Read The Denver Post's Terms of Use of its content: http://www.denverpost.com/termsofuse 
Follow us: @Denverpost on Twitter | Denverpost on Facebook

Thanks for posting the update on this.  

 

 

Quote:
Originally Posted by segbrown View Post
 

 

Yes, and my understanding is that areas are trending toward marking fewer things, just throwing up more signs that say Thin Cover, Ski At Your Own Risk, or such thing. The more that is marked, the higher the expectation that everything will be marked, and that's when these misunderstandings happen. I noticed in Tahoe how little is marked compared to CO ... it is different terrain, so it would be impossible. 

Less is more. 

post #290 of 296
Quote:
Originally Posted by tball View Post
 

So what's different about the Vail case?   Vail is claiming the run was closed.   Ski areas don't have to close dangerous trails, but if they do it needs to be marked properly under the SSA.   That's why the Taft's parents have a case, otherwise they wouldn't.

 

The whole Vail case is crazy.  Here's my biased view of this insanity:

 

  • The trail Taft died on wasn't really closed as Vail claims, IMO.
  • Vail claimed it was closed, I'm guessing, because they don't want people to think avalanches can happen on open trails.
  • If Vail hadn't claimed the trail was closed, the parents wouldn't have a case to bring under the law.
  • The parents are angry that Vail is claiming the trail was closed, otherwise they would not have sued.
  • It sounds like mediation failed because neither party would give on if the trail was open or closed.

 

I think Vail is between a rock and a hard place between a) admitting the trail was open, and b) airing their dirty laundry in a very public trial and probably losing in the end. 

 

I read the Vail claim and Vail's response again.  I'm not sure about the dirty laundry bit.  According to Vail's response, the Plaintiff's third claim for relief, which is the willful and wanton misconduct around lying and delaying access to ski patrol reports, etc. was dismissed in Dec 2012.  So that isn't even in play unless something has changed since Vail's defense filing.

 
THIRD CLAIM FOR RELIEF
 
(Wanton and Willful Conduct)
 
The Third Claim for Relief has been dismissed pursuant to this Court’s Order on December 12, 2012. As such, no responses  
are required  for paragraphs 40-53. 
post #291 of 296

^^^ Your right.  If the only remaining issue is the proper signing/roping of a closure there may not be much dirty laundry.  The publicity from the trial will be bad, though.  I don't think the recent newspaper stories made Denver TV news, but I bet the trail will.

 

I believe the damages are capped at $250K?  If so, it's hard to believe Vail didn't offer at least that to make this go away.  Seems this really is about the principle for the parents.  There isn't much upside and it's all going to charity anyway.

post #292 of 296
^^^^Yes, damages are capped at $250K unless you can get an exclusion from the SSA, at which point the plaintiff apparently could pursue common law negligence. That latter point is why the avalanche as not inherent risk leads both cases, because it maybe gets you out from under the SSA and its cap.

Keep in mind the first claim on avalanche as inherent risk has not been dismissed. That's been my entire protest to hearing people want to see this one through. If a claimant can pursue anything not on the SSA list under common law negligence, then the cap is also gone say for moguls. And when is an operator negligent for moguls? And what happens in that case (besides grooming)?

Now I think the first claim has zero chance and would be reversed on appeal if needed, but I am personally happy with the WP ruling and its affirmation of precedent on interpretation of the SSA.

The second claim probably comes down to one point:

Plaintiff's claim uses the term Prima Cornice Trail. Vail's defense uses the terms Upper Prima Cornice Trail and Lower Prima Cornice Trail. The U and L in CAPS means a lot in terms of closure.

On Vail's trail map PDF, you only see Prima Cornice trail, but that trail is the traverse. The rest is not named and the slide did not happen on the named map trail (or is Vail's printed map more detailed?) The Crummy press on the dismissed part of the case may well have Vail interested in defending itself and having any final ruling a technicality around the naming of the trail. The rest of it isn't going to show up anywhere in case law unless SSA gets severely weakened in this case.

Edit: Take a look at what Kumar v. Copper has to say. This case was appealed, and this is from the ruling on appeal:
Quote:
a ski area operator may be liable under one of two theories. First, a skier may recover if his injury did not result from an inherent danger or risk of skiing. Such a claim would fall outside the scope of the SSA and would be governed by common-law negligence principles. Second, a ski area may be liable because it violated a provision of the SSA and that violation resulted in injury.

This is why you go after avalanche as not an inherent risk. From there, you get duty to warn and there aren't any statutory liability caps. I don't think Vail can afford to settle on this point - it's entire business model is defined by the SSA.
Quote:
Kumar’s assumed duty argument fails for a more fundamental reason. In revising the SSA in 2004, the Colorado General Assembly recognized “the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed.” § 33-44-102. A ski area operator is negligent for failure to warn only when it violates the specific and detailed warning requirements of the SSA as set forth in §§ 33- 44-106 and 107. And as we discuss below, Celebrity Cornice did not qualify as a feature requiring warning signs under those sections.

Some similarity here - the part about requiring signs when the access gate is closed and signed.
Quote:
Consistent with the legislature’s recognition of the dangers of skiing and its goal of clearly defining a ski area’s potential liability, the language of § 33-44-103(3.5) is clear: “inherent dangers and risks of skiing” should be read to include accidents like Kumar’s, in which a skier is injured skiing over a feature that was not subject to the SSA’s explicit signage requirements. Although the SSA provides that additional signs “may be posted at the discretion of the ski area operator,” § 33-44-106(g)(2), such signage is optional. Contrary to Kumar’s claim, a ski area operator has no assumed duty to post such discretionary signs.

Prima Cornice trail is a traverse on the maps. Is the area below still that trail?
Quote:
Yet such a reading of § 33-44-107(d) leads to the absurd result that individual skiers may define the extent of a ski area operator’s liability merely by nicknaming some part of a mountain.

This deals with the neither skiers nor ski resort employees being able to name a part of the mountain that isn't formally designated by the resort operator, and then creating liability based on that common understanding. That seems awfully relevant here. See bold text below:
Quote:
Under this reading, the ski area operator must mark those areas of its slopes which contain “freestyle terrain” and which are designated for freestyle use, such as terrain parks and aggregations of terrain park features. See C.R.S.A. § 33-44-103(3.3). This reading is consistent with both the text and the purpose of the SSA. Having eliminated the other possible entities that could be responsible for specifying freestyle terrain areas, we conclude that specification by ski area operators is the most plausible interpretation of this provision.

The full link. It appears that the CO legislature did refine the definition of inherent risks in 2004 (IIRC) to deal with precedent set by Graven v. Vail, and one wonders if they would do it again should the SSA get weakened in this case. This case talks a lot about 'areas' in relation to signage - it seems pretty relevant to me since the 'trails' of upper and lower are unmarked by the resort on the map.

http://www.gpo.gov/fdsys/pkg/USCOURTS-ca10-09-01559/pdf/USCOURTS-ca10-09-01559-0.pdf
Edited by NayBreak - 10/26/13 at 11:52am
post #293 of 296
Nay break, I think that the SSA caps non-economic damages at $250k and total damages at $1million, right? That means economic damages (loss of income, etc.) at $1m...

Mike
post #294 of 296
Quote:
Originally Posted by habacomike View Post

Nay break, I think that the SSA caps non-economic damages at $250k and total damages at $1million, right? That means economic damages (loss of income, etc.) at $1m...

Mike

It caps derivative claims at $250K as well, both for economic and non-economic combined. WP asked for a judgement on that point and there is a good explanation by the judge in that case. A wrongful death suit is by definition derivative (meaning a claim by somebody other than the directly injured party).

In the conclusion on that ruling, the judge says that if the case had been allowed to go forward, damages would have been capped at $250K. You have to succeed in claiming something is not an inherent risk to get out of the SSA entirely, and then you get common law negligence and no cap at all.

That is why avalanches as being outside the SSA is so critical to these cases - when they are an inherent risk all common law negligence arguments are rendered moot and now you have strict interpretation of the law.
post #295 of 296

I think as punishment Vail should be forced to read this entire thread.  ;)

post #296 of 296

NayBreak--chances are there is a much more detailed ski patrol map or set of maps--probably aerial photo based--which probably show the actual run and may or may not call it Upper and Lower. I suppose those maps will be produced at some point.

New Posts  All Forums:Forum Nav:
  Return Home
  Back to Forum: General Skiing Discussion
EpicSki › The Barking Bear Forums › On the Snow (Skiing Forums) › General Skiing Discussion › Judge rules that Vail Resorts can be sued for avalanche death