April 18, 2017

Judge Allows Avalanche Death Case to Proceed Against Vail

13 year old Colin Taft died in an inbound avalanche at Vail on January 22, 2012.  His family sued Vail arguing that the avalanche that killed Colin was foreseeable and that Vail was negligent in failing to either make the area safe for skiers by mitigating the known avalanche danger and/or was negligent in failing to close the area or warn skiers of the avalanche danger.

Image result for vail inbound avalanche

Colin’s case was on hold while the Colorado State Supreme Court grappled with how to treat inbound avalanches under the Ski Safety Act.  This was a question of first impression.  The Court heard arguments and recently issued a decision on a separate lawsuit filed by the wife of skier Christopher Norris.  Norris was killed in a separate avalanche that occurred inbounds at Winter Park on the same day as the avalanche that killed Colin Taft.

Norris’ family argued that the resort was responsible for his death because the 1979 Ski Safety Act did not specifically list avalanches as an inherent risk. The act shields resorts from liability when death or injury is caused by difficult-to-mitigate dangers, such as changing snow conditions, terrain and weather.

The Supreme Court’s 5-2 decision handed down last May ruled that avalanches result from changing snow and weather as well as variations in steepness and terrain, all of which are specifically noted in the Ski Safety Act.  In dismissing Norris’ suit, the Court’s ruling effectively broadened the umbrella of protection afforded to Colorado ski resorts.  The ruling also effectively immunized Colorado ski resorts from Avalanche liability.  The effects of this ruling have not been completely tested, but there is certainly a concern that the ruling undermines the duty for resorts to carry out snow safety mitigation.

For some background, I wrote about the ruling in the Norris case here:

What is an Inherent Risk of Skiing? The Question is Far from Settled…

The ruling by the Court recently in Colin Taft’s case against Vail took an interesting turn in what many felt was now settled law after the Supreme Court’s ruling in Norris’ case.  Vail renewed its motion to dismiss Taft’s case arguing that it was now settled that the avalanche that killed him was an inherent risk of skiing and that it was immune under the Ski Safety Act as a matter of law.

The Court agreed that the avalanche that killed Colin Taft may have been an inherent risk of skiing, however it declined to dismiss the suit, reasoning that a jury could conclude that based on the evidence presented that Vail was negligent for not adequately closing and signing the area where Colin was killed.  Taft’s family produced evidence that the lower gate into Prima Cornice had not been closed as the upper gate had been.

Image result for vail inbound avalanche

This holding seems to indicate that even if a resort is immune from liability for injury caused by an “inherent” risk, the mountain still has a duty to either protect or warn skiers of the inherent risk they might foreseeable encounter.  Obviously, resorts are in the best position to know the foreseeable risks their terrain might pose and are likewise in the best position to protect and warn guest of those risks.

The court seemed to rely on the age old principle of the safety hierarchy.  The hierarchy calls for hazards to be addressed in a top down order:

  1. eliminate the hazard
  2. guard or protect from the hazard if the hazard cannot be reasonably eliminated
  3. warn of the hazard if elimination or guarding are not practical

In this case, the Court has taken the highest level off the table in that resorts no longer need to eliminate the inbound hazard of avalanches.  However, the duty to guard and/or warn of the hazard seems to be alive and well.

If anything, this case will be a call for resorts to develop better and more effective warnings for their guests.  It will also call on resorts to be vigilant in the terrain it opens for the public.  For a warning to be effective, it must actually change peoples’ behavior in the real world.

Image result for ski area warning sign, expert only

It will be interesting to watch how Colin Taft’s case is ultimately resolved.  It will also be interesting to watch as this area of law continues to develop and its effects on resort operation, guest safety and liability are worked out.

 

 

Here’s a link to the Denver Post article on the case:

Taft Conlin’s death at Vail may have had more to do with signage than the inherent risk of avalanche, judge rules