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Judge finds Vail may be found liable in avalanche death - Page 2

post #31 of 35
Quote:
Originally Posted by NayBreak View Post

Vail is going prevail wink.gif, because of the absurdity issue. You can't draw a line on anything but downhill signage unless you draw a perimeter line, and that is absurd in big mountains where that line could be miles long. How can you think the legislature intended that?
 

 

If the kid had traversed from a open trail to a closed trail I would agree with your absurdity argument.

 

This case is different.  He traversed from one half of a trail that was open to the other half of the same trail that was closed.  There was no clear delineation of where the open half ended and the closed half began.   I think the absurdity argument holds in the other direction here, as it was absurd of Vail to not put up a rope or sign showing where the closure began.  There was no way for skiers to know when they were entering the closed half of the trail.

 

The legislature was very clear in their intent in defining the duties when closing a portion of a trail:

 

Quote:
33-44-107. Duties of ski area operators - signs and notices required for skiers' information

(4) If a particular trail or slope or portion of a trail or slope is closed to the public by a ski area operator, such operator shall place a sign notifying the public of that fact at each identified entrance of each portion of the trail or slope involved. Alternatively, such a trail or slope or portion thereof may be closed with ropes or fences. 

 

That, combined with the WP decision means a ski area has no duty to close a trail because it is dangerous, but if they do decide to close a trail they need to sign it properly.  The kid's family would have no case if the entire trail was open ending in the same tragic result.  Vail claiming half the trail was closed is why the kid's family will prevail ;), but that's better outcome from a PR perspective than a slide killing a kid on an open run.

post #32 of 35
^^^^^hence perhaps a jury for this one wink.gif

I still think the issue of who names the trail and what that means is interesting. This from Kumar:
Quote:
The SSA distinguishes between “terrain” and “terrain areas.” This distinction is evident in § 33-44-107(2)(d) which requires signage at the “commonly used access” for the “ski area’s extreme terrain.” In contrast, § 33-44-107(5) mandates that signs marking “specified freestyle terrain areas” need only be posted “at or near the beginning of each trail or slope.” Thus, extreme terrain features must be marked individually at commonly used access points, but only the beginning of each slope leading to a “specified freestyle terrain area” need be posted with a sign. Consistent with the plain meaning of the word “area,” the SSA recognizes that a terrain area is larger than a single terrain feature.

Now this is not directly related, but take a look at Vail's map and the idea of terrain areas. On the map, was Prima Cirnice closed at all? Or were terrain areas below Prima Cornice closed by designated common access points?




Then go back to Kumar about who gets to name stuff on a mountain:
Quote:
Moreover, Celebrity Cornice was not “specified.” See § 33-44-107(2)(d) (referring to “specified freestyle terrain areas”). The SSA does not state who is responsible for specifying a “freestyle terrain area.” We can imagine three possible parties who might “specify” that an area is a freestyle terrain area: the legislature, skiers, or the ski area operator.

Although § 33-44-103 lists features that qualify as “freestyle terrain,” the SSA does not establish which parts of a ski resort qualify as “freestyle terrain areas.” In light of this statutory silence, contrasted with the detailed signage requirements elsewhere in the statute, see §§ 33-44-106 and 107, it does not appear that the Colorado General Assembly intended to “specify” freestyle terrain areas.

The second possibility is that skiers might specify “freestyle terrain areas.” This is the option favored by Kumar, who contends that because the cornice was informally nicknamed by guests and employees at Copper Mountain, the cornice was “specified.” 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. See State v. Nieto, 993 P.2d 493, 501 (Colo. 2000) (“n construing a statute, we must seek to avoid an interpretation that leads to an absurd result.”). Such a reading would disserve the Colorado General Assembly’s stated intent of clarifying “the rights and liabilities existing between the skier and the ski area operator and between skiers.”
§ 33-44-102. Kumar’s proffered interpretation of “specified freestyle terrain area” would allow individual skiers to define the scope of ski area operators’ potential liabilities and thus render ski area operators’ responsibilities more uncertain, rather than less.

The third possibility is that ski area operators themselves might specify which sections of their slopes constitute “freestyle terrain areas.” 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. And because Celebrity Cornice was not specified by Copper Mountain as a freestyle terrain area, Kumar’s negligence per se claim fails.

Again, this is not directly related, but it establishes that ski area operators are in control of naming conventions. So when a skier says "it was the same trail", at least in Kumar there is a clear piece of appellate court opinion that says how skiers determine things is not consistent with the SSA. I think that is going to be relevant here.
post #33 of 35
Quote:
Originally Posted by tball View Post
 

 

 

 

This case is different.  He traversed from one half of a trail that was open to the other half of the same trail that was closed.  There was no clear delineation of where the open half ended and the closed half began.   I think the absurdity argument holds in the other direction here, as it was absurd of Vail to not put up a rope or sign showing where the closure began.  There was no way for skiers to know when they were entering the closed half of the trail.

 

 

But Vail could argue that all the terrain reachable from the lower entrance was open. "We just didn't want anyone going over the lip." Again, the catch 22--if you can get to it without ducking a rope or going past a closed sign, it wasn't closed.  Vail could in fact argue that yes, we knew that you could get to the site of the avalanche from the lower entrance. we didn't feel it was dangerous. Inherent risk. Might be too late to make the argument--I haven't read the briefs and depositions obviously, 

post #34 of 35
Quote:
Originally Posted by oldgoat View Post
 

But Vail could argue that all the terrain reachable from the lower entrance was open. "We just didn't want anyone going over the lip." Again, the catch 22--if you can get to it without ducking a rope or going past a closed sign, it wasn't closed.  Vail could in fact argue that yes, we knew that you could get to the site of the avalanche from the lower entrance. we didn't feel it was dangerous. Inherent risk. Might be too late to make the argument--I haven't read the briefs and depositions obviously, 

 

Yep, they could have said the run was open and been fine on the legal front with avalanches being an inherent risk.  They didn't for a couple reasons:

 

1.  It would be a PR disaster to have a kid killed at Vail in an avalanche on an open in-bounds run, so from day one they branded the kid as a poacher.  Initial press reports and online discussions made it sound like he cut a rope.  The parents now want to set the record straight and clear his name.  Here's the initial thread here on epic, for example: Ducking Rope = Bad News at Vail's Prima 

 

2.  Vail's USFS Permit requires them to do avalanche control.  This is a whole 'nother plot twist to this story.   USFS investigated and determined Vail did nothing wrong.  But Vail lied to the CAIC about avalanche mitigation work being completed, as reported here.   The USFS relied on the CAIC investigation in making their determination, as reported here.

 

Here's a good quote from the last article cited:

 

Quote:
 “The families’ disagreement is well-placed,” said veteran Denver trial attorney Jim Chalat, who has a national reputation for his handling of ski injury cases. “Their interpretation of the ski safety act … their focus on criteria for closing a trail are absolutely correct.

“The cost for running a rope down the skier’s right-hand side of lower Prima Cornice would be negligible and would have brought them into compliance with the standard set out in the Ski Safety Act (107 (4)),” Chalat said, explaining that the law requires resorts to close trails at each identifiable point of entry.

“With regard to the Forest Service report, I can understand and share the parents disagreement with the Forest Service. The White River National Forest Report whitewashes the incident. The Forest Service should be in the business of protecting the public, not acting in deference to Vail Resorts,” he said, pointing out that Vail Resorts has frequently won cases against its own customers based on the precise wording of the safety law.

post #35 of 35

We live in a amoral sue-your-pants-off society...you gotta take ownership of the risks you take at some point.

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