Originally Posted by NayBreak
It's hard for me to even understand why this is still a case. Other courts have offered no traction to this sort of argument in CO.
Are you forgetting where you stated this?
If both gates on Prima Cornice accessed the same terrain, I think it would be a tough argument.
They access the same terrain. The incident happened on Prima Cornice. The skier descended from a point much closer to the open gate than the closed one. If we accept your argument, that means for purposes of liability, a ski area can have from a liability standpoint 100% of their mountain closed every single day (put up two poles with a rope in between at the top of every run- no need even for a sign) while simultaneously stating that 100% of their mountain is open.
Prima Cornice is not a trail. It is a slope.
Oh goody! I get to do this. Please show me the part of the SSA the defines "trail" vs. "slope" It does not do so- it defines them both concurrently. This is a distinction you are making that has no basis in the law you are referencing.
The reality is that Prima Cornice is marked as a trail (one trail, not upper and lower), and the consensus is that the skier was within the area (defined by the ski area) as that trail. The victim DID NOT traverse into a different area. He accessed the trail from an open gate. He proceeded downhill from a point closest to that gate.
Obviously there is some grey area here. I think this case shines a light on how much the law in its current iteration SUCKS, and was obviously written from a time where almost all skiing was done on cleared runs with ropelines closing the trees on either side. When ski areas started opening terrain wall to wall, the law doesn't look to have kept up.
Lets pause for a moment. With regards to the arguments in the case, the Plaintiff appears to have conceded any argument over whether the terrain was open or closed, by stating the victim entered closed terrain that was not signed properly. This makes the points @tball and I are making invalid arguments for the case, because our arguments start from pointing out what I think are good arguments that the terrain was open. I don't see how our arguments work in this case because the plaintiff hasn't chose to argue that fact and stated the skier was in closed terrain. :facepalm:
So... for this case, I think I don't see a good argument for the plaintiffs side from signage. All good arguments I see start from "he entered an open gate, he skied a labeled open run from a point closest to and best accessed by the open gate, he did not at any point leave that open run, if the defense argues that the run was in fact closed, they failed to sign the run as such."
Speaking more generally, I think a judge/jury would take a dim view on a ski area trying out my "closure" trick of arbitrary gates or rope sections closing all terrain on the mountain for legal purposes, while no access restrictions are employed in reality - in the absence of a clear statement in the law defining what area under a rope closure is closed when it can be accessed through open gates servicing the same area. And this remains exactly how I see Vail's argument, and it royally pisses me off that they appear to have gotten away with it.
So, to be clear, I am arguing over how I interpret the SSA. The plaintiff in this case has their own arguments which are being made with different motivations than ours- they want to win and the ski area to lose, we would like a decision that establishes clarifying precedence over some of the big holes in the SSA.
With the facts of the incident (which is different than the arguments made by the plaintiff), I don't see how the Kumar case applies. The skier traversed within the same marked run/area. He didn't traverse into a different marked run, he didn't really get anywhere near the closure gate. His action could only be construed to "define the extent of a ski area operator’s liability" if a ski area is allowed to "close" all terrain from a legal standpoint (roped off trick) while declaring that terrain open in all other respects- in effect giving the ski area, instead of the legislature, sole power to define the extent of the ski area operator's liability- no liability, cause everything was closed that day and we sold tickets to tons of trespassers (wink).
Your interpretation WRT rope closures (broadly, not in the sense of this case) essentially would mean entering any controlled access gate means the ski area cannot be liable- because the ropeline signifies closure and in the eyes of the ski area the skier didn't ski in the area intended by the access gate- an open area not defined until after the fact and then defined by the ski area.
I sincerely hope such an argument would get laughed out of court, and am saddened that Vail isn't forced to argue that one- the plaintiff let them off.