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Here we go: CO Supreme Court hearing arguments about whether avalanches are inherent risk in resorts - Page 6

post #151 of 172
Quote:
Originally Posted by NayBreak View Post
 
The point is that doesn't matter. The SSA places the burden entirely on you to understand and not place yourself at risk.
Quote:
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.

The duty is on you to understand that Vail has created two access points to Prima Cornice. It is on you to utilize those access points when they are open, but to not place yourself at risk. Vail has no duty other than to sign them. In this case, the duty is to sign them as extreme terrain, and open or closed, the latter of which can be accomplished by rope. These points are on the map. Skier created traverses are not. Prima Cornice is not a trail. It is a slope.
 

 

Nope, sorry Prima Cornice is a trail.  It's listed as a trail on the trail map.  It's also listed as a trail on the trail report, and you can see it's closed on today's report:

 

The Prima Cornice trail was listed as open on the day that Taft Conlin died.  

 

@NayBreak you keep focusing on the duty of skiers.  The ski area also has a duty to properly sign in the SSA:

 

Quote:
 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.

 

Vail had a duty to either a) sign BOTH the upper and lower entrances that a portion of the trail was closed, or b) use ropes or fences to close a portion of the trail.   Vail did neither.

 

I agree with your premise that a skier has a duty not to hike or traverse to a closed trail, but that doesn't apply here because the trail was open!  

 

I'd completely agree with @oldgoat's comments above if Vail didn't make the ridiculous claim there are two trails (Upper Prima Cornice and Lower Prima Cornice) and upper was closed.   You can see why they did that by reading the law, but they have never been listed that way on the signs, trail map, or trail report!   I'm glad they did, though, as hopefully the trial will shed light on what went wrong with Vail's avy control procedures.  That's what I'm really interested in hearing.  

post #152 of 172
This is as a result of an emotional decision to sue and lay fault to make a survivor feel good. There is a simple solution in which everyone loses and that is close the run permanently or better yet ban skiing altogether as it is to risky for people to decide about their own safety and take responsability for their own actions.

Truth be told, it's the individuals choice to take an action, choose wrong and you pay, sometimes permanently.

No matter the outcome lawsuits such as these are not good for anyone.
post #153 of 172

While this case is not related it clearly shows how easy things can happen.

 

http://www.telegraph.co.uk/news/worldnews/europe/france/11530511/British-boy-7-dies-on-last-ski-run-of-holiday-at-French-resort.html

 

My heart goes out the family of the little boy.

post #154 of 172
Quote:
Originally Posted by tball View Post
 

Vail had a duty to either a) sign BOTH the upper and lower entrances that a portion of the trail was closed, or b) use ropes or fences to close a portion of the trail.   

 

 

On the signage aspect, I think maybe you stopped highlighting the relevant passage too soon. 

 

"...shall place a sign notifying the public of that fact at each identified entrance of each portion of the trail or slope involved..."

 

That last portion should have been included I think, as you could say that the lower part of the slope was not closed, so the lower slope was not "involved" in the closure. In that case, the lower gate wouldn't need to be signed. I think the point of that section is that every entrance to a closed slope or portion of a slope has to be signed. Not that other, open entrances on other parts of slope have to signed.

post #155 of 172
Quote:
Originally Posted by NayBreak View Post
 
Quote:
Originally Posted by bounceswoosh View Post

So ... at what point then, legally, is something "within" one of these runs or outside of it? Must I stick to a 10 foot wide corridor directly below the gate (assuming the gate is even 10 feet wide)?  How wide do my turns have to be until they are outside of the defined run? Maps don't show left and right boundaries, only text typically running down slope. If I am intimidated by the slope or conditions and traverse a bit between turns, then what? Ooh, what about fully developed C shaped turns that may even go slightly uphill before turning down again?

I see everything you're saying, @NayBreak
 , but the logical conclusion seems impracticable.

The point is that doesn't matter. The SSA places the burden entirely on you to understand and not place yourself at risk.
Quote:
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.

The duty is on you to understand that Vail has created two access points to Prima Cornice. It is on you to utilize those access points when they are open, but to not place yourself at risk. Vail has no duty other than to sign them. In this case, the duty is to sign them as extreme terrain, and open or closed, the latter of which can be accomplished by rope. These points are on the map. Skier created traverses are not. Prima Cornice is not a trail. It is a slope.

The SSA requires you to answer your own questions above about width of turns, type of turns, lanes, lines, or anything else, so that you uphold your duty to neither cause or contribute to your own injury. Vail has no duty other than to sign its designated access points to help you with your interpretation. The very title section of the SSA that creates these duties is CRS §33-44-107. Duties of ski area operators - signs and notices required for skiers' information. That's it. Signs and notices required for skiers' information.

That this is the logical conclusion of the SSA may seem impractical until you come at it as I outlined above. Once the interpretation of a skier can either limit or expand a ski area operator's liability, the SSA itself no longer provides that definition, and that defeats the plainly stated purpose of the law. Case law repeatedly brings home this point again and again.

I hope we all get how onerous that duty to refrain from causing or contributing to our own injury is. You fail that standard in any injury that was not caused by another party by definition. Sobering to know that hurting yourself skiing automatically makes you negligent, so your starting point is that your negligence has contributed to your own injury and therefore another party must be found comparatively more negligent than you in order for you to recover anything in Colorado.

 

*nod* oldgoat also made this point to me. I am now getting it - and like I said, it does change my perspective of blithely traipsing through the ski resort. Although I do not think any ski resort or ski patrol has any intention of exposing anyone to danger if they can help it.

post #156 of 172
Thread Starter 
Quote:
Originally Posted by oldschoolskier View Post

This is as a result of an emotional decision to sue and lay fault to make a survivor feel good. There is a simple solution in which everyone loses and that is close the run permanently or better yet ban skiing altogether as it is to risky for people to decide about their own safety and take responsability for their own actions.

Truth be told, it's the individuals choice to take an action, choose wrong and you pay, sometimes permanently.

No matter the outcome lawsuits such as these are not good for anyone.

 

From what I know of the case, I'm not sure this case was motivated by the usual emotion of grieving parents as much as sheer anger at all the crap Vail pulled after the fact. I only know what I read in the papers, though, which I also know isn't always 100% accurate. The Winter Park case, yeah, that one was as you say. This was handled differently and has thus been treated differently. 

 

This particular lawsuit might end up not being such a bad thing, if the law is clarified a little better. It might end up being a terrible thing, too, but I'm going to be optimistic at this point.

post #157 of 172
Quote:
Originally Posted by dbostedo View Post
 
Quote:
Originally Posted by tball View Post
 

Vail had a duty to either a) sign BOTH the upper and lower entrances that a portion of the trail was closed, or b) use ropes or fences to close a portion of the trail.   

 

 

On the signage aspect, I think maybe you stopped highlighting the relevant passage too soon. 

 

"...shall place a sign notifying the public of that fact at each identified entrance of each portion of the trail or slope involved..."

 

That last portion should have been included I think, as you could say that the lower part of the slope was not closed, so the lower slope was not "involved" in the closure. In that case, the lower gate wouldn't need to be signed. I think the point of that section is that every entrance to a closed slope or portion of a slope has to be signed. Not that other, open entrances on other parts of slope have to signed.

 

Good point.  In this case, though, I don't think Vail made it clear which portion of the trail was open and which was closed.  I think the most important part of that duty in this case is:  

 

"...or b) use ropes or fences to close a portion of the trail."

 

I believe that clause means Vail had a duty to make it clear which portion of the trail was open and which was closed.  That was in no way clear.

 

I don't buy the uphill/downhill argument, as I often spend so much time hiking on open trails that my friends ask why we bothered to buy lift passes.   You could easily enter the lower Prima Cornice gate without noticing the upper gate existed or that it was closed.  I don't think it's a reasonable expectation to check every gate and remember the name of the trail, and if it's open or closed.  To account for this law provides that Vail can give notice that a portion of the trail is closed either a) at each entrance or b) by roping/fencing off a portion.  They did neither.

 

Here's a picture of the ridge zoomed in from one of the CAIC investigation images.

 

 

If you enter this trail through the opening of the trees on center right, which portion of the trail is open and which is closed?  

post #158 of 172
Quote:
Originally Posted by tball View Post
 

 

I believe that clause means Vail had a duty to make it clear which portion of the trail was open and which was closed.  That was in no way clear.

 

If you enter this trail through the opening of the trees on center right, which portion of the trail is open and which is closed?  

 

I don't think either of those things matter, legally. It says to use signs OR use ropes/fences on the slope. Both aren't required and it appears that closing the gate was enough. Neither are they required to indicate what part of the slope is open once you're on it if it's only partially closed. 

 

Now doing that better sounds like a good idea, and something that could be clarified perhaps. But the way I read it, Vail complied with rules. 

post #159 of 172
Quote:
Originally Posted by NayBreak View Post




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?

 

Quote:
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.

 

Quote:
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.

post #160 of 172

So it seems that we have veered from what this case is really about and that is whether avalanches are an inherent risk of asking within a resort. If determined that they are then whether or not the terrain was open is an irrelevant point. The skier was killed by an inherent risk and therefore the area operator is not liable.

 

If avalanches are ruled as not an inherent risk then we have a debate on whether or not the skier was in the wrong. This creates a problem though because as we can all agree there are varying levels to which a resort can "prevent" avalanches. Pretty much everyone can agree that stopping 100% of slides is impossible but if avalanches are an inherent risk then is the operator responsible for any mitigation work? If so how much is enough? It creates a very difficult scenario for determining negligence.

post #161 of 172
Quote:
Originally Posted by lonewolf210 View Post
 

So it seems that we have veered from what this case is really about and that is whether avalanches are an inherent risk of asking within a resort. If determined that they are then whether or not the terrain was open is an irrelevant point. The skier was killed by an inherent risk and therefore the area operator is not liable.

 

If avalanches are ruled as not an inherent risk then we have a debate on whether or not the skier was in the wrong. This creates a problem though because as we can all agree there are varying levels to which a resort can "prevent" avalanches. Pretty much everyone can agree that stopping 100% of slides is impossible but if avalanches are an inherent risk then is the operator responsible for any mitigation work? If so how much is enough? It creates a very difficult scenario for determining negligence.

 

Which is probably why the plaintiff is arguing that Vail improperly signed a closed area that Vail "knew or should have known" had avalanche risk because they had not done any mitigation work and risk was high that day.

 

I think the plaintiff discarded the argument that the run was open (which is what the family argued at length in the media before the case) because it opens up the question of what obligation the ski area has, if any, to do mitigation work, which to my knowledge is not defined anywhere and is certainly not defined within the SSA. Vail could just trot out experts to argue that a reasonable person could have concluded the snowpack was safe enough to open, and as somebody else stated, this can mean a different finding of due diligence for every single case- who knows where that goes?

 

If avalanches are not defined as an inherent risk, things get really screwed up in ski country.

 

However, at the same time, avalanche mitigation is worthless if closure signage is insufficient to actually inform skiers what slopes have been mitigated.

post #162 of 172
Quote:
Originally Posted by anachronism View Post
 

Which is probably why the plaintiff is arguing that Vail improperly signed a closed area that Vail "knew or should have known" had avalanche risk because they had not done any mitigation work and risk was high that day.

 

I think the plaintiff discarded the argument that the run was open (which is what the family argued at length in the media before the case) because it opens up the question of what obligation the ski area has, if any, to do mitigation work, which to my knowledge is not defined anywhere and is certainly not defined within the SSA. Vail could just trot out experts to argue that a reasonable person could have concluded the snowpack was safe enough to open, and as somebody else stated, this can mean a different finding of due diligence for every single case- who knows where that goes?

 

If avalanches are not defined as an inherent risk, things get really screwed up in ski country.

 

However, at the same time, avalanche mitigation is worthless if closure signage is insufficient to actually inform skiers what slopes have been mitigated.

 

Great summary.  

 

It is a fine line between the family (plaintiff) claiming "the trail was open" and claiming "the trail was not properly signed as closed."  Vail opened the door to the latter argument when they made the ridiculous (in my view) claim the trail was closed.  I'm glad the family jumped in that legal opening.

post #163 of 172
Thread Starter 

Maybe the closure wasn't even due to avalanche danger in the first place.

post #164 of 172
Quote:
Originally Posted by segbrown View Post
 

Maybe the closure wasn't even due to avalanche danger in the first place.

 

Which is my suspicion too. But I wholly agree with @naybreak in that case that the resort has no obligation to explain why something is closed, or explain the risks.

 

Vail's official position was that it was closed, and has strongly implied the closure was avalanche related, even though that gate spent most if its time closed (right?) even in days where avalanches clearly were not a concern.

 

So yeah, I agree that the claim is dubious (as well as the whole argument that a closure existed in the first place- at least along anything the victim skied), but it won't come up in court because nobody is arguing that the terrain was open.

post #165 of 172
Quote:
Originally Posted by segbrown View Post
 
Quote:
Originally Posted by oldschoolskier View Post

This is as a result of an emotional decision to sue and lay fault to make a survivor feel good. There is a simple solution in which everyone loses and that is close the run permanently or better yet ban skiing altogether as it is to risky for people to decide about their own safety and take responsability for their own actions.

Truth be told, it's the individuals choice to take an action, choose wrong and you pay, sometimes permanently.

No matter the outcome lawsuits such as these are not good for anyone.

 

From what I know of the case, I'm not sure this case was motivated by the usual emotion of grieving parents as much as sheer anger at all the crap Vail pulled after the fact. I only know what I read in the papers, though, which I also know isn't always 100% accurate. The Winter Park case, yeah, that one was as you say. This was handled differently and has thus been treated differently. 

 

This particular lawsuit might end up not being such a bad thing, if the law is clarified a little better. It might end up being a terrible thing, too, but I'm going to be optimistic at this point.

 

If Vail pulled crap (that's stupidity of an arrogant organization and that is all to common), however anger is an emotion.

 

As to the lawsuit, well if Vail wins the arrogance is just enforced, and if they lose, it opens up the doors for more.  IMHO anytime a law or regulation must be clarified, restrictions and more changes will be forth coming in the future as people look for ways around them.   Almost never a good thing as the original intend becomes lost and changes mean more restrictions.

post #166 of 172

Not sure if this the right place to post this, but this just in.

 

http://www.9news.com/sports/ski/colo-supreme-court-ski-resorts-not-liable-for-avalanches/224876548

post #167 of 172
Quote:
Originally Posted by DOCEVG View Post
 

Not sure if this the right place to post this, but this just in.

 

http://www.9news.com/sports/ski/colo-supreme-court-ski-resorts-not-liable-for-avalanches/224876548

that's good news

post #168 of 172
Quote:
Originally Posted by DOCEVG View Post
 

Not sure if this the right place to post this, but this just in.

 

http://www.9news.com/sports/ski/colo-supreme-court-ski-resorts-not-liable-for-avalanches/224876548


The correct ruling.  Snow is an inherent risk of skiing in Colorado ;).

 

So is hiking uphill under closures :devil:

post #169 of 172
Well that's good news.
post #170 of 172

I must have missed this while skiing last April :D.  Now that the case is down to one point, it should be debated again!

 

[Quote=anachronism]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.[/quote]

 

The SSA actually doesn't define either a trail or a slope.  But the english language does make a distinction, and trail and slope are not synonyms.  When you don't take the time to define something in a contract, it will be given it's plain english meaning:

 

Trail (noun) - a path or track made across a wild region, over rough country, or the like, by the passage of people or animals.

 

A synonym of "trail" is "path".

 

Slope (noun) - an area of land on a mountain that is used for skiing.

 

^^^That definition of slope is from Merriam-Webster, who actually used a ski reference to define slope.  It's hard to find a synonym for slope as a noun - you need more words, like "side of a hill".  So a slope and a trail are not remotely the same thing, and the legislature took effort to make a distinction by using both words.  

 

[quote]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.[/quote]

 

You make the mistake ^^^ by using the word area (twice).  Ski areas mark slopes with "trail names" all the time - look at a map of any bowl.  But here are the words of one of the mothers, who is apparently an attorney (emphasis mine):

 

[quote]I don’t believe the boys were doing anything wrong.They are expert skiers and were following all the rules of the skier responsibility code. [B]The Colorado Ski Safety Act does not prohibit skiers from sidestepping up or traversing across a slope[/B]. The boys did not duck a rope or knowingly ski into the closed terrain. They accessed the run through an open gate.” – attorney Kristi Ferraro, mother of one of the boys injured in the avalanche[/quote]

 

She uses the word "slope", and then follows with a correct assessment:

[quote]“It is insufficient to close the run at the top, but not on the sides, if the closed area can be entered from the sides.” – Kristi Ferraro[/quote]

^^^This may be true, but the law does not require closure from the sides.  What it says is this (again, emphasis mine):

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

 

The SSA expressly in plain English allows for closing a portion of a slope through its identified entrance.  So if I close a portion of a slope through the gate that is identified as the entrance to that portion of slope, and you go to another entrance and work your way back over, then your argument is that I had to rope or somehow sign between the portions that were open or closed.  But the law does not require this, it uses the word "alternatively", which I think we can agree does not mean "both", even if complying with the law by closing a portion of a slope through its identified entrance isn't "sufficient" to prevent injury or death by sidestepping or traversing.

post #171 of 172
Quote:
Originally Posted by NayBreak View Post
 

I must have missed this while skiing last April :D.  Now that the case is down to one point, it should be debated again!

 

 

No it shouldn't. You snooze you lose.:)

post #172 of 172

This decision is a victory for common sense, probably.  But also for ski patrollers, and skiers concerned about both the cost of lift tickets and the health of the ski biz.  

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