The family of Peter Marshall, who was killed in an avalanche near Red Mountain Pass as he participated in an avalanche safety class with the Silverton Avalanche School, has dropped its lawsuit against the venerable school.
But the family of the 40-year-old Longmont skier is suing K2 Sports and its company Backcountry Access, which makes the air bag backpack that was not deployed when rescuers found Marshall buried in more than 8 feet of avalanche debris.
“Peter Marshall attempted to trigger his Float 32 avalanche air bag system but it did not fully deploy or inflate,” reads the product liability complaint filed in Boulder District Court. The lawsuit does not describe how the family determined Marshall attempted to deploy the air bag but failed.
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K2 Sports, which is owned by private equity firm Kohlberg & Company, denied the allegations in a response to the complaint filed this month, arguing the air bag was not defective and the losses suffered by the Marshall family were the result of “voluntary acts and not caused by any act or omission” by the pack manufacturer. The lawyers for K2 Sports cited 16 facts they believe eliminate the company’s liability in their request that the judge dismiss the case.
Marshall was participating in an advanced avalanche safety class in Upper Senator Beck Basin near Red Mountain Pass on Jan. 5, 2019, when he was swept down a slope in an avalanche that caught five other skiers. Four skiers were not buried. Another was buried but was able to extricate himself. When the skiers freed Marshall from the debris, he was not breathing. His Backcountry Access Float 32 pack, which has a trigger that must be yanked to inflate an air bag that can buoy a skier to the top of moving snow, was not inflated.
Colorado Avalanche Information Center investigators said in their report that the air bag backpack “was functioning properly,” with “the trigger out of the pack strap, but the bag was not deployed.”
Two years after the accident, Marshall’s wife and young daughter sued San Juan Search and Rescue, the Silverton Avalanche School and the school’s guide, Zachary Lovell. (The school is part of the county’s search and rescue operation.) The 68-page wrongful death lawsuit also claimed Backcountry Access made a defective air bag. The lawsuit argued the school, guide and pack-maker “created substantial and unreasonable risks of serious injury and death to participants” in the safety class. Attorneys for the Marshall family have not returned calls or responded to emails. Representatives from the county and school declined to comment.
Marshall’s death was the first avalanche fatality of the 2019-20 season and the first ever for the Silverton Avalanche School, one of the nation’s oldest avalanche education operations. Marshall was participating in the school’s Level 2 American Institute for Avalanche Research and Education class for backcountry skiers seeking advanced skills for traveling in avalanche terrain.
The Colorado Avalanche Information Center report pointed to several mistakes during the class, including a group of skiers gathered on a slope steep enough to slide, those skiers misjudging the steepness of that slope and a failure to recognize avalanche hazards on nearby slopes.
The guide triggered the first avalanche, which swept every skier down the slope, according to the CAIC report. A second slide buried Marshall under several feet of snow.
Last month the Marshall family dropped its claims against the county, school and guide. The family had argued that the school and guide had duped Marshall into signing up for the class by “falsely presenting” that school staff “possessed deep operational experience in avalanche terrain.” The family also claimed the school and guide displayed “gross negligence,” which would exempt protection provided in liability waivers signed by Marshall before the class.
The complaint against Backcountry Access and K2 Sports notes that the avalanche safety equipment company recalled “substantially similar” Float packs due to a problem that could lead to a failure in the pack’s ability to inflate. The U.S. Consumer Products Safety Commission reported the recall of 8,200 Float 18 packs on Nov. 26, 2013, with a warning that the trigger assembly can fail “resulting in the air bag not deploying, posing a risk of death and injury in the event of an avalanche.”
The complaint by the Marshall family argues Backcountry Access “should have known insufficient changes were made to the design of avalanche air bags manufactured after the recall to prevent such failures.”
The lawsuit argues Backcountry Access should have been aware of “safer alternative designs,” such as a remote or automatic triggering or inflation system.
Another skier in Marshall’s group was wearing an avalanche air bag and attempted to deploy the bag when he was swept off his feet in the slide. It did not inflate.
“Later, he determined that he assembled the trigger mechanism incorrectly,” reads the CAIC report, which did not identify the brand of air bag used by that skier.
Avalanche air bags are commonly accepted as one of the best technologies in avalanche safety since the transceiver, which transmits a signal to other transceivers, helping to locate a buried skier. But it’s not a perfect defender. Wearing an avalanche air bag can save a little more than half of skiers who would have otherwise been killed in an avalanche, according to a 2012 review of five different studies of air bag effectiveness.
Deployment is the critical issue though. A 2014 study of avalanches involving skiers with air bags showed 60% of avalanche accidents involving skiers with un-inflated air bags were because the skier never pulled the trigger. That study also showed 12% of so-called non-inflation incidents were due to user error, including assembling the trigger mechanism incorrectly.