EAGLE — Every skier in central Colorado was fired up when the snow finally arrived that fourth Sunday in January six years ago. It had been a cold, dry season with too few powder days.
By the end of the day, inbounds avalanches had killed two skiers, marking one of the darkest days in Colorado ski resort history. In the years since that day, two lawsuits have threatened and tested the venerable Colorado Ski Safety Act, the sweeping legislation that defines the duties of resort operators and the responsibilities of skiers who assume the risk of skiing’s many inherent dangers.
One challenge failed at the Colorado Supreme Court, and another is appealing a jury decision that sided with the resort. After nearly 40 years, the definitive legislation protecting ski areas from lawsuits leveled by injured skiers or their families remains inviolable. But the two cases stemming from Jan. 22, 2012, proved the greatest threats ever to the Ski Safety Act, with the latest decision from an Eagle County jury in June including a ruling that could impact the resort industry’s widespread reliance on liability-release waivers.
“Those liability agreements are unconscionable waivers of statutory duties imposed by the legislature onto ski area operators and it’s a violation of public policy for a court to enforce them,” said Jim Chalat, a Denver attorney who has spent decades representing skiers or their families in lawsuits challenging waivers and the sweeping immunity resorts have under the Ski Safety Act.
Avalanche danger was high with the heavy new snow, which arrived with high winds and fell atop rotten crystals on Jan. 22, 2012. The Colorado Avalanche Information Center warned of “widespread dangerous avalanche conditions,” and said skiers would likely trigger avalanches on “low angle to even flat terrain.”
Christopher Norris, a 28-year-old father from Evergreen, was buried in a small slide in the trees next to Mary Jane’s Trestle that day, and 13-year-old Taft Conlin was swept through trees below Vail’s Prima Cornice.
The argument leveled by Norris’ family in their wrongful death lawsuit — that Winter Park should have recognized the avalanche risk that day and closed areas susceptible to slides — went all the way to the Colorado Supreme Court. The court ruled that avalanches are an inherent risk of skiing. No skier can make a claim against a resort operator for injuries connected to those inherent risks, according to the Ski Safety Act.
The parents of Taft Conlin took another tack, arguing that Vail violated its duties under the Colorado Ski Safety Act by failing to properly close the run where their son was carried through dense trees. That case, argued in June in an Eagle County district court, marked one of the first times the Colorado Ski Safety Act was tested in a jury trial. And the venerable act emerged unscathed when the jury of six sided with Vail.
Conlin’s parents — Eagle veterinarians Steve Conlin and Louise Ingalls — are appealing the decision. Their appeal will argue, among many points, that the court admitted “misleading, inadmissible, or irrelevant evidence,” excluded evidence, erred when it allowed the trial to move to Eagle County from Broomfield County, where Vail Resorts is headquartered, and erred when it denied the parents’ request to disqualify the judge.
Regardless of whether the appeal overturns the decision, there was a ruling by District Court Judge Frederick Gannett on the first day of the trial that uncovered a potential chink in the armor of ski resorts that have, for decades, enjoyed legislated immunity from lawsuits brought by skiers or their families.
No one ever has successfully challenged the Colorado Ski Safety Act, which was born in 1979 from resorts grappling with soaring insurance costs. The legislation has since been copied by nearly every other ski state. Through revisions in 1990 and again in 2004, the legislation is anchored in the concept of assumed risk: that skiing is fraught with a host of natural risks that skiers assume when they click into their bindings.
Still, resorts have buttressed their immunity with broad liability-release agreements required for the purchase of season passes and, more recently, even day lift tickets. Vail, the flagship of resort titan Vail Resorts, tried to argue that since Conlin’s parents signed that liability release waiver, the resort was immune to any legal action.
Gannett disagreed, ruling on the first day of the trial that the requirements of the resort operator as outlined in the Ski Safety Act — specifically the duty to post signs noting trail closures — could not be dismissed with the liability-release agreement.
“Liability for the operator’s negligence in its compliance with the statutory mandate cannot be waived by contractual agreement,” Gannett wrote in his June 8 ruling. “To hold to the contrary would permit the ski operator to completely eviscerate these enumerated statutory duties by contract.”
That’s some serious legalese for sure, but read it again: Season pass waivers don’t absolve a resort of responsibility under the Ski Safety Act. Signing a waiver doesn’t mean the resort can ignore the duties outlined in the legislation.
“You have more responsibility driving your car than a resort operator has for running a ski area,” said Jim Heckbert, the attorney representing Ingalls and Conlin in the civil wrongful death lawsuit against Vail. “Just an ordinary person driving their car has to shoulder more responsibility than a ski area, which is unfortunate for people who like to ski.”
For an industry that has perfected virtually bulletproof waivers, Gannett’s ruling could have ramifications on how ski areas protect themselves from lawsuits. He wasn’t the first district judge in Colorado to rule that waivers cannot trump the duties required under the Ski Safety Act.
In 2012, Pitkin County District Court Judge Denise Lynch ruled that the waiver signed by a skier injured when he was struck by a stretcher strapped to a chairlift did not protect Aspen Skiing Co. from an injury claim. In 2009, Summit County District Court Judge Terry Ruckriegle ruled that Keystone could not use a liability-release waiver to duck responsibility in a collision involving a skier and a resort worker on a snowmobile.
“Yet another thoughtful state court judge found that waivers of liability set out in the season passes are invalid against a violation of the Ski Safety Act by the ski area operator,” Chalat said. “I think that Vail is empowered by the jury verdict and I think that skiers are empowered by Judge Gannett’s ruling on June 8 invalidating the waiver. But in the federal courts, skiers are getting the short end of the stick. They are skiing in a less safe environment with less protection. That’s a shame because liability breeds responsibility.”
Heckbert said Ingalls and Conlin are not interested in money and have promised any award will go toward a charity, including a scholarship in their son’s name. But they are troubled by what they see as a lack of accountability by Vail, which argued Taft accessed a closed area of the ski area when he sidestepped up Prima Cornice from an open lower gate to a steep snowfield near the closed upper gate.
In the season following Conlin’s death, Vail began closing both Prima Cornice gates as the same time when avalanche risk was elevated. Vail issued a statement that season saying that ski patrollers had “reviewed the terrain and determined, given what they had learned about potential skier behavior in this area” that they would close the lower gate when the upper Prima Cornice gate is closed due to avalanche concerns.
Vail ski patrollers testified at the trial that, before the boy’s death, they had never heard of skiers hiking from the lower to the upper gate on Prima Cornice. That surprised at least one former ski patroller.
“When I was a patroller at Vail, I went in there hundreds of times and every single time I went into Prima Cornice I saw tracks from people hiking up. I would swear to that on a stack of Bibles,” said Michael Beckley, a former Vail ski patroller who installed the upper and lower gates for Prima Cornice in the early 1980s when Vail first opened the terrain and ultimately served as managing director at Beaver Creek ski area.
Beckley was not a fan of Prima Cornice. He thinks it never should have been opened for skiing.
“It was like the devil we didn’t know. We didn’t know if we would be able to handle it or not,” he said of the ridge, where wind-driven snow from the west deposited deeply, forming a cornice atop a rock ridge.
Beckley said the lower gate should not have been opened if the upper gate was closed.
“I always considered the lower gate as an entrance to the entire Prima Cornice area,” he said. “If I was working that day, both gates would have been closed.”
Vail Resorts, in a statement, said the jury’s decision was “thoughtful and well-reasoned” and “consistent with Colorado law.”
“Nonetheless, we are also aware of how difficult the trial has been for everyone involved, and we remain deeply saddened by the tragic events of Jan. 22, 2012, and for the family and friends of Taft Conlin,” the statement reads. “The company continues to place the highest value on the safety of our guests and employees, and is proud of the Vail Ski Patrol and their ongoing commitment and professionalism. We will continue to work hard each and every day to mitigate risk and provide a safe environment for skiers and snowboarders on the mountain.”
The resort industry exhaled a sigh of relief with the Conlin jury decision.
Just as it did when the Colorado Supreme Court ruled avalanches are an inherent risk in skiing, although not specifically mentioned in the Colorado Ski Safety Act’s list of dangers that include changing weather, snow conditions and varying terrain.
There was an argument raised in the Supreme Court case that resorts would lose the incentive to mitigate avalanche danger if sliding snow became an inherent risk of skiing protected under the Ski Safety Act.
Hogwash, the industry said.
“Our top priority is slope safety,” said Geraldine Link, the head of public policy for the National Ski Areas Association. “If you think about it, ski areas were performing avalanche hazard mitigation work before any ski safety act existed. Ski patrols will continue to perform top-notch avalanche mitigation work.”