Inbounds avalanches — like the one Thursday that swept down Taos’ Kachina Peak and killed a 26-year-old skier and critically injured another — are very rare at U.S ski resorts.
But fatal in-area avalanches do happen, with a handful of examples at resorts across the West in the last decade. And when they do, families sometimes sue, but rarely win as they test the court- and legislation-supported premise that avalanches are an inherent risk of skiing.
New Mexico’s ski safety legislation mirrors Colorado’s, with skiers shouldering responsibility for dangers inherent in the sport of skiing, including variations in terrain, trees, rocks, lift towers and snow conditions.
Families of skiers killed in avalanches in steep terrain have tested Colorado’s ski safety legislation in court, challenging the industry’s argument that avalanches are inherent risks of skiing. While the state’s highest court has ruled that resorts are protected from in-bounds avalanche lawsuits, at least one expert in ski law predicts more resorts skiers will die in avalanches as resorts open steeper, more avalanche-prone terrain.
It’s been almost six years since an avalanche inside a resort boundary claimed a life in Colorado. On Jan. 22, 2012, 13-year-old Taft Conlin was killed in an avalanche at Vail ski area and 28-year-old Christopher Norris was buried and killed in a slide at Winter Park’s Mary Jane ski area on the same day.
Both those deaths resulted in legal action, with the family of Norris pushing their wrongful death lawsuit to the Colorado Supreme Court.
The state’s high court in 2016 sided with Winter Park and the Colorado resort industry, ruling that the resort was protected from liability by the 1979 Ski Safety Act. That legislation shields resorts from lawsuits stemming from the death or injury of skiers caused by the inherent risks of skiing, defined by a lengthy list of difficult-to-mitigate dangers like weather, terrain and changing snow conditions. The court affirmed an appeals court decision, ruling that avalanches, while not specifically mentioned in the Ski Safety Act, were an inherent risk of skiing.
“The definition of ‘inherent dangers and risks of skiing’ … specifically includes ‘snow conditions as they exist or may change,’” reads the Supreme Court’s decision. “By its plain meaning, this phrase encompasses an in-bounds avalanche, which is, at its core, the movement, or changing condition, of snow.”
The family of Conlin sued Vail arguing the ski area violated the Ski Safety Act by not property closing a gate accessed by the teen and his friends. A jury in June 2018 sided with Vail, but the family is appealing the decision.
Lawsuits in Utah and Wyoming also have tested the idea that in-area avalanches are an inherent risk of skiing.
In December 2007, a Grand Junction resident and volunteer ski patroller at Powderhorn was killed in a large inbounds avalanche at Canyons Resort in Utah. The family of Jesse Williams sued American Skiing Co., then the ski area’s owner. A trial court declined the resort’s motion for summary judgement to dismiss the case, ruling the avalanche was not an inherent risk of skiing as outlined in Utah’s Skiers Safety Act. A jury in November 2013 sided with the resort, deciding that the Canyons demonstrated “reasonable care” in its efforts to mitigate avalanche risk in that area of the resort.
In December 2008, 31-year-old David Nodine was killed in an avalanche in Jackson Hole Mountain Resort’s Toilet Bowl area. His family sued. After a trial court refused to dismiss the case based on the resort’s argument that avalanches were an inherent risk of skiing and protected under the Wyoming Recreation Safety Act, the two parties settled before trial.
Both the Williams and Nodine cases argued that inbounds avalanches are not automatically part of the inherent risk legislation that protect resorts and warranted closer study to determine if a resort was possibly negligent in failing to mitigate the hazard or close a dangerous area. The early rulings that allowed the cases to continue toward a jury trial supported their arguments for a deeper dive into the resort’s work before the fatal avalanche.
“Both cases take the view than an in-bounds avalanche is a special circumstance that invokes close consideration of the particular facts, particularly whether the avalanche hazard was known and could have been mitigated, or, in the exercise of reasonable care, whether the run should have been closed,” wrote Jim Chalat in the March 2016 Law Week Colorado newspaper for attorneys.
Chalat is a longtime guardian of skier safety on the slopes, continuously exploring the legal armor that protects ski resorts from lawsuits and urging skiers to avoid signing liability waivers. The Colorado Ski Safety Act caps legal claims against resorts at $250,000 and the legislation has proven unassailable in most every legal challenge. The Conlin case landing before a jury and the Norris case reaching the Colorado Supreme Court came closest to threatening the venerable legislation forged in 1979 and amended in 1990 and 2004.
Chalat suggests inbound avalanches will continue to test resorts that could be held liable if they failed to properly close a run with significant avalanche hazard. Four years ago Taos opened a new chairlift accessing the expert terrain that spills from the 12,481-foot Kachina Peak. Before the chair, skiers hiked for more than half an hour to reach the terrain. Thursday’s tragic avalanche — the first ever to kill a skier at Taos — released from the ridge below the summit.
“They are opening up more extreme terrain and that makes it more likely that other people will be killed in inbounds avalanches,” Chalat said in an interview with The Colorado Sun. “Whether or not there’s going to be a legal action filed depends on a lot of variables. But it is more likely that more people will be killed in an avalanche because of the trend of opening up more challenging terrain.”
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