VAIL—Steamboat Springs-based attorney Jim Heckbert says Vail and Winter Park ski areas were negligent last winter when they failed to close or adequately sign avalanche-prone terrain within their operational boundaries — and that their negligence resulted in the death of Taft Conlin at Vail and Christopher Norris at Winter Park.
The lawsuits may hinge on very specific legal language in the Colorado Ski Safety Act, but the outcome could have larger implications for the sport, as a verdict favoring the plaintiffs could affect the way ski resorts manage internal closures, which, in turn, could affect access to public lands.
In the Winter Park lawsuit, filed in Grand County District Court, Heckbert alleges that Intrawest Winter Park Operations Corporation, through its employees,was negligent in disregarding forecasts and warnings regarding high avalanche danger existing within the boundaries of the ski area, and negligent in not closing the area or warning skiers of the danger.
The Vail lawsuit, filed in Broomfield County District Court, makes similar charges, claiming that ski area employees negligently ignored avalanche warnings, and that the ski area had a duty to warn skiers of avalanche danger in the area or to close the area where Conlin died.
Heckbert says Vail violated specific provisions of the Colorado Ski Safety Act that require closure signs to be placed at each entrance of closed terrain.
The avalanche happened on Prima Cornice, a popular trail in the heart of the resort that sees heavy skier traffic most seasons. Last winter, lack of early season snow delayed the opening of the run.
Conlin, 13, and some friends entered the trail through a lower gate that was open and then may have climbed up the slope to try and earn a few more turns in the fresh powder, triggering a debate about whether Conlin was in a closed or open area and lending some credence to the argument that the signage may not have been adequate.
"The Ski Safety Act places the burden on the ski area operator," said Heckbert, referring to language that specifies requirements for closures.
"If there's a danger that is there ... that requires a closure from that entrance ... It is the fact they they were on notice that this was a bad day for skiing anywhere in the state of Colorado. They knew this snow was going to overlay a rotten base that was setting up classic avalanche conditions. They were reckless to leave that terrain open," he said.
For Conlin's mother, Louise Ingalls, the lawsuit is also about trying to get Vail Resorts to take actions to prevent a similar accident in the future. Before going to court, Ingalls said she spoke with Vail Resorts representatives several times, trying to get them to commit to making some changes to the way the ski area manages internal closures.
Should Heckbert prevail on behalf of his clients, ski resorts might become more wary of opening potentially dangerous terrain, but it's far from clear exactly how that might play out, according to Alan Henceroth, chief operating officer at Arapahoe Basin, where the last Colorado inbounds avalanche death occurred in May 2005.
That fatality didn't trigger a lawsuit, but the ski area and the Forest Service started some studies on wet-slab and wet snow spring avalanches, gaining information that helps inform ski area management and avalanche safety protocols.
But a court showdown could have a chilling effect on ski area operations, said Dale Atkins, a former forecaster with the Colorado Avalanche Information Center.
"For me as a skier and someone in the industry, the lawsuits are worrisome … anyone who enjoys their local ski areas, they ought to be concerned about this as well," Atkins said.
"Ski areas do a phenomenal job of reducing the risk and making ski areas fun. While they can reduce the danger almost to zero, they can't eliminate it completely ... A result against the ski areas could affect what terrain they open, but that wouldn't solve the danger, either, because people at resorts often violate closures and go into closed areas," Atkins said. "There really needs to be a shared responsibility between the resort and the riders," he said, adding that it's not just about avalanches, but about cliffs, downed trees and other obstacles that are considered inherent dangers of the sport.
"One of the things that needs to be made clear is that the Colorado Avalanche Information Center is forecasting for the backcountry, where conditions can be very different," Atkins said, making an important point with regard to the lawsuits, which seem to suggest that the ski areas should have heeded avalanche center forecasts in their terrain management decisions.
Atkins said the trend toward more off-piste exploration requires a different mindset.
They have to pay a bit more attention ... it may be appropriate on some days to practice similar protocols to the backcountry, to be equipped with beacons, shovels, probes and RECCO device," he said, referring to an embedded radar reflecting chip that can help rescuers quickly locate accident victims.
"There's a lot of very remote wilderness-like terrain within the ski areas and people are exploring that terrain in ways that we never thought possible. The managers, the rescuers the enforcers are always behind, always trying to catch up," he said.