Colorado Supreme Court takes up ski resort avalanche liability

FRISCO, Colo. — Many Colorado skiers and snowboarders no doubt think there’s plenty to worry about on the slopes already, but thinking about the out-of-control speeder behind you is one thing; wondering whether a sparkly powder-filled glade in the middle of the resort will suddenly unleash an avalanche is different altogether.

But that’s what happened, not just once, but twice on the same day in January 2012, when Eagle County teenager Taft Conlin died in a snowslide on the Prima Cornice trail at Vail, and Christopher Norris was buried in a slide within the ski area at Winter Park. Both deaths spurred lawsuits, and last week, the Colorado Supreme Court announced it will hear a case to decide whether inbounds avalanches are one of the inherent risks of skiing.

The Vail and Winter Park deaths came just a couple of years after the Wolf Creek ski patrol director died while trying to eliminate the avalanche hazard for guests of the San Juan ski areas. Inbounds avalanche deaths have historically been extremely rare and usually involved ski patrollers working in avalanche-prone terrain.

The 2012 avalanche fatalities caused a stir in the tight-knit community of snow safety experts, along with some off-the-record and anonymous online grumbling by ski patrollers at some resorts about staffing cuts that don’t help avalanche control programs.

After the 2008 resort real estate crash, many resorts couldn’t rely on inflated trophy cabin prices for revenue so they tightened mountain operations, in some cases trimming personnel. It may be hard to imagine a resort cutting corners at the expense of safety, but this is the era of corporate control of the ski industry, and corporate America doesn’t always have a stellar record in this area.

Boilerplate

The ski industry generally reacted to the 2012 deaths with standard boilerplate — after all, any acknowledgement of a problem or change in circumstances could crack open the liability door.

But other respected avalanche pros were talking, including Doug Abromeit, then director of the Forest Service National Avalanche Center in Idaho.

“It definitely jumps out at me … it’s definitely atypical. There’s no denying the number of fatalities within ski area boundaries is on the rise. It’s on every snow safety director’s radar,” Abromeit said in a 2012 interview with Summit Voice.

Abromeit said that, while the chances of a skier or snowboarder dying in a slide within the boundaries of a resort remain miniscule, the ski industry is aware of the trend. He said the National Ski Areas Association included discussion of inbounds and sidecountry avalanche safety in the agenda at its 2012 meeting.

“To have two deaths within ski areas is pretty exceptional,”  said  American Avalanche Association Dale Atkins, a former forecaster with the Colorado Avalanche Information Center.. “Safety is an illusion in the mountains. Even though the ski areas do a phenomenal job, and people who are educated have a wonderful time, you’re dealing with Mother Nature. We’re managing risk to reduce the threat.”

Last year, an investigative report by the Denver Post raised questions about overall ski area accountability when it comes to investigating serious injuries and fatalities. Another investigation by a Bay Area TV station alleged that California ski areas may be systematically under-reporting ski accidents.

In the case of Taft Conlin’s death, depositions have revealed some unclarity — at the least — in the way Vail Ski Area tracks its avalanche control procedures, though a U.S. Forest Service investigation showed the resort was adhering to its approved snow safety plan.

The 2012 deaths also spurred two lawsuits that are still wending through the judiciary. Last week, the Colorado Supreme Court said it will try to rule on a very specific question in the death of Christopher Norris, whose widow sued IntraWest Winter Park Operations Corp., alleging that the ski area should have made more of an effort to protect skiers from the threat of avalanches within ski area boundaries.

“The Supreme Court  needs to decide whether an avalanche on an open trail at a ski area is an inherent risk of skiing,” said Steamboat Springs attorney James Heckbert, who has pursued the case through the courts.

Heckbert also represents the family of Taft Conlin in Broomfield County District Court, where Vail Resorts is defending itself against similar complaints of not meeting its obligation under the ski safety act to mark and close dangerous terrain.

There won’t be any more hearings in the Conlin case until the Supreme Court case is decided. In June 2014 the Broomfield district court opened the door for the Supreme Court case by ruling that Vail Resorts failed to prove that the ski safety act provides protection from liability in Conlin’s death.

On the legal level, the Supreme Court justices will have to grapple with an interpretation of a laundry list of dangers that skiers must expect in a day on the slopes — everything from unmarked obstacles and man-made terrain features to changes in weather, and if the state legislature, when it updated the law in 2006, meant to include avalanches in their list.

The inherent dangers clause is broadly written, and the insertion of the word “including” just before the long list of applicable dangers starts makes it understandable that a lower court ruled in favor of the ski area in the Norris death.

But the Supreme Court’s decision to hear the case suggests that the dissenting opinion of a Colorado Appeals Court judge carried weight. The dissent compared Colorado’s general ski safety act verbiage with a more specific clause in the Montana version of the law, which spells out risks, but specifically excludes avalanches on open designated runs from the list.

According to Heckbert, the legislative record shows that, during the 1990s, Colorado Ski Country USA, the industry’s trade and lobbying group, agreed with legislators that they didn’t want courts to expand that list.

“Now, some judges seem to be saying, ‘We can make it whatever,'” Heckbert said. Under that trend, ski resort immunity from liability has grown, with the scales of justice tipped too far toward the resort industry, especially in the modern corporate era.

“Before the ski safety act, skiers had common law rights to sue ski areas for dangerous conditions,” Heckbert said, adding that in his view, those common law rights have been eroded to the detriment of the public interest. Protecting ski areas back in the day of mom-and-pop operations may have made sense, but new economic realities should push the courts and lawmakers toward rebalancing the scales, he said.

Extreme law?

Whatever satisfaction the families of the dead skiers may or may not get from the outcome of the cases, the decisions could have other impacts on the ski industry, especially if the Supreme Court rules in favor of the plaintiff and against Winter Park.

Depending on the exact wording of a decision, and any subsequent action by state lawmakers, it’s possible that some areas known for steep and challenging terrain could be forced to curtail access to runs based on avalanche risk because it’s practically impossible to completely eliminate the risk of slides.

In a best-case scenario, the court cases could lead to resorts beefing up their avalanche programs and to educating customers about the potential risks associated with skiing on the desirable backcountry-like black- and double-black diamond inbounds terrain.

Some ski areas have already done, with signage including avalanche-specific warnings — probably a good thing since it’s hard to imagine an average ski tourist from L.A. or Chicago being able to anticipate the possibility of an inbounds snow slide.

Yet thanks to modern ski and snowboard technology, those same ski tourists are able to maneuver themselves into terrain where they could get into trouble. Abromeit said today’s fat skis have opened a whole new can of worms for snow safety experts.

Reaching a higher level of safety — especially with regard to inbounds threats — ultimately will require a change in attitudes, with skiers and riders taking responsibility for their safety.

“You don’t see people sneaking around closed signs on highways,” Atkins said, suggesting that many recreational skiers tend to take potential risks at ski areas lightly — perhaps in part because resorts downplay those risks outside the fine print on lift tickets.

[Photo: Mount Washington Alpine Resort.]

5 COMMENTS

  1. They won’t help build roads to bring their customers to the slopes, they won’t intervene or assist in providing housing to seasonal non-benefitted workers, they’re laying off personnel, but, check the profits (http://finance.yahoo.com/news/vail-resorts-reports-fiscal-2015-130000028.html;_ylt=AwrSyCPcF49UoA4ApheTmYlQ) and luxury real estate purchases, (keep in mind they lease most of thier ski resort land (from us) for less than the cost of a dimpsty-dumptster). They charge us, the owners of their subsidized leases, hundreds for ski-hill passes to fund luxury condominium & lodge purchases and obscene salaries for executives who strangely, never-ever die in avalanches.

  2. Expect political decisions by the Colorado Judiciary.

    THE COLORADO SUPREME COURT . . . “POLITICIANS IN BLACK ROBES.” (AS IT TURNS OUT.)

    “Truth is the daughter of time, not of authority,” Bacon.

    For decades I refused to believe it, but it is now incontrovertibly established. The Colorado Supreme Court is indisputably a political actor. Our Colorado Supreme Court exists to serve Colorado political parties. At present, the Colorado Supreme Court is more rightly considered an adjunct of the Colorado Legislative Branch, than a check on the Colorado Legislative Branch. Rather than “truth-seeking,” the Colorado Supreme Court now sees its role as “political-outcome seeking.” Litigants successfully use the Colorado Supreme Court to achieve political purposes. In the Ralph Carr Justice Center, rather than meeting impartial guardians of the law, litigants meet their political allies on the bench. The Colorado Supreme Court has accepted its role as a political and partisan tool, and recognizes no constitutional limits on the authority of the Colorado Legislative and Executive branches. We have no “Rule of Law” in Colorado, we simply have shifting political power. That is all.

    “I think there are many who think of judges as politicians in robes. In many states, that’s what they are.” “They seem to think judges should be a reflex of the popular will.”

    Sandra Day O’Connor

    At present, popular will in the United States insists on the demonization of public employees. In particular, an angry mob demands that government discard the constitutional and contractual rights of retired public employees. Colorado Supreme Court justices, as politicians reacting to the popular will, are happy to oblige.

    In this article, I provide an example of the political and partisan role of the Colorado Supreme Court. I describe a case in which the Colorado Supreme Court summarily erases billions of dollars of debt owed by Colorado state and local governments. That is, one branch of Colorado state government relieves another branch of Colorado government of its legal debts. The case involves Colorado statutory contracts that create financial obligations on the part of Colorado governments. Over decades, political considerations induced the Colorado Legislature to mismanage the financial obligations. In recent years, the terms of these statutory contracts were deemed politically inconvenient and politically unpopular. The Colorado Legislative Branch asked the Colorado Supreme Court to discard the contracts.

    In 2010, the Colorado Legislative Branch requested that the Colorado Supreme Court grant this political favor by ignoring the Contract Clause of the US Constitution, ignoring the history of legislative mismanagement of these state financial obligations, and relieving Colorado governments of their accrued legal debts. No trial, no discovery, billions of dollars seized by the state.
    In granting this political favor, sanctioning the breach of Colorado PERA pension contracts, the Colorado Supreme Court was forced to ignore its own long-standing case law precedent, the court failed to conduct a “contract analysis,” the court ignored evidence of Colorado PERA’s attorneys stating that the pension benefit was indeed a Colorado PERA contractual obligation, the court ignored the bill (SB10-001) sponsor’s testimony that the pension benefit was in fact a Colorado PERA contractual obligation, the court ignored recorded legislative history of the contractual nature of the public pension benefit, the court failed to engage in the “heightened scrutiny” of the abandonment of state financial obligations required under federal case law (US Trust) and finally, the court embraced a discredited Denver District Court decision that did not bother to mention Colorado’s on-point public pension case law. In the United States, political connections can be used to summarily erase billions of dollars of government debt.

    Colorado politicians’ premeditated scheme to claw back accrued Colorado PERA pension benefits, from its inception in 2009, was to take Colorado PERA retiree’ assets outside of bankruptcy. (State governments cannot declare bankruptcy under federal law.) The only means by which the Colorado Supreme Court (in concert with the Colorado Legislative Branch) could achieve this goal was by ignoring on-point Colorado public pension case law, and all evidence in the Colorado PERA retiree lawsuit, Justus v. State. In its October 2014 decision in the case, the Colorado Supreme Court ignored the testimony of Colorado PERA’s own lawyers (in 2009) stating, on the record, that the Colorado PERA COLA benefit was a contractual obligation of Colorado-PERA affiliated employers. The Colorado Supreme Court embraced the original Denver District Court decision in this case, which failed to mention Colorado’s public pension case law, (Bills and McPhail.) Is it possible that Denver District Court Judge Hyatt and his staff (in 2011) just happened to be such bad legal researchers that they were unaware of Colorado’s on-point public pension case law that was being read by Colorado’s relatively unsophisticated PERA retirees? Not likely. This case law was indeed recognized by the forthright members of the Colorado Court of Appeals (in 2012) who found the case law to be “dispositive” in establishing the contractual right of PERA retirees to their accrued PERA COLA (ABI) benefits.

    In this article, I address the Colorado Supreme Court’s lack of independence, integrity, and impartiality. I provide a brief history of the efforts of the Colorado Legislature and the Colorado Supreme Court to escape Colorado governmental financial obligations. I comment on the recent (October, 2014) Colorado Supreme Court Decision itself, which summarily erased these billions of dollars of Colorado public sector debt. I highlight some of the numerous factual and logical errors that exist in the Colorado Supreme Court’s Decision in the case. I express incredulity at the Colorado Supreme Court’s willful ignorance of public pension administration, knowledge that was necessary to any court claiming to “seek truth” in the case.

    The Colorado Judiciary had an obligation to ensure that all evidence in the case, Justus v. State, was examined prior to breaking Colorado PERA pension contracts. They ruled in ignorance. This ignorance may have been willful. Rather than honoring their debts, Colorado PERA-affiliated governments will now inflate away that debt courtesy of the Colorado Supreme Court.
    My intent in writing this article is to enhance the public record of, and further document, what I consider to be one of the greatest “crimes” in Colorado history.

    Verba volant, scripta manent.

    On October 20, 2014, the Colorado Supreme Court ruled that Colorado PERA pensioners have no contractual right to their accrued public pension COLA benefits. Yet, here we have documentation of Colorado PERA’s own lawyers acknowledging, in legislative testimony, Colorado PERA’s contractual obligation to pay the PERA COLA as recently as 2009.

    http://saveperacola.com/

    December 16, 2009

    Colorado PERA officials in written testimony to the Joint Budget Committee: “The General Assembly cannot decrease the COLA (absent actuarial necessity) because it is part of the contractual obligations that accrue under a pension plan protected under the Colorado Constitution Article II, Section 11 and the United States Constitution Article 1, Section 10 for vested contractual rights.”
    http://www.kentlambert.com/Files/PERA_JBC_Hearing_Responses-12-16-2009_Final.pdf

    Discover the true nature of Colorado state government at saveperacola.com.

    Read the complete article at http://coloradopols.com/diary/64487/the-colorado-supreme-court-politicians-in-black-robes-as-it-turns-out

  3. Lots of assertions, nothing to back them up.

    “It may be hard to imagine a resort cutting corners at the expense of safety, but this is the era of corporate control of the ski industry, and corporate America doesn’t always have a stellar record in this area.”

    Proof?

    And, just for the record, I still worry more about out of control skiers than in bounds avalanche. Fuss about corporations all you want, but those pesky irresponsible individuals (many with no assets to speak of) are a big threat too. Just drive down I-25, no big corporations on the road, but there sure are a whole lot of jerks who will gladly sacrifice your life for a minute shorter commute.

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