VAIL - The avalanche that killed a 13-year-old boy last winter is not an "inherent" risk for skiers, and isn't protected by state law, say legal documents filed by Taft Conlin's parents.
His parents, Dr. Louise Ingalls and Dr. Stephen Conlin, sued Vail Resorts last summer saying their son died because the company's negligence created an "avalanche trap" that killed him.
Vail Resorts asked the Broomfield County District Court to throw out the lawsuit, saying they complied with Colorado's Skier Safety Act. The ski company said "the incident resulted from 'inherent dangers and risks' of skiing," and that they're protected because they claim they did not violate Colorado's Ski Safety Act.
Not true, countered Conlin's parents.
Colorado's lawmakers said nothing about the kind of in-bounds avalanche that killed their son, nor did they intend to, they say in their response.
"The Skier Safety Act describes conditions which the General Assembly determined are inherent dangers and risks of skiing; however, 'avalanche' is clearly not included within those conditions," their attorney Jim Heckbert wrote in his response.
Heckbert has called the ski company's assertion "frivolous."
On Jan. 22, Conlin and five friends entered Prima Cornice through an open gate on the lower part of the run, following the tracks of several others who had skied through that gate that day, according to a report from the Colorado Avalanche Information Center.
Vail Resorts did not close Prima Cornice Trail with a sign or a rope, and therefore didn't meet its obligation under Colorado's Skier Safety Act, Heckbert wrote.
"A danger which may be eliminated by the employment of reasonable safety measures by the ski area operator is not an inherent danger of skiing," Heckbert wrote.
Avalanches are not among skiing's inherent dangers, Heckbert wrote.
"The strict reading of the Skier Safety Act established that an avalanche is not an inherent danger of skiing within a ski area boundary," Heckbert wrote. "Moreover, the failure of the defendant to employ reasonable measures to protect skiers from the risk of an in-bounds avalanche on Jan. 22, 2012, precludes a finding that the avalanche was an inherent danger."
Conlin's parents are both local veterinarians and the lawsuit is not about money, Heckbert said.
Colorado law caps wrongful death awards at $250,000 for children, Heckbert said.
"The object is to keep other parents from having to go through this," Ingalls said when the lawsuit was filed last summer.
Vail Resorts' position
Vail Resorts calls the avalanche "tragic," but insists that it's one of the "the inherent dangers and risks of skiing" and such dangers and risks are not actionable under Colorado's Ski Safety Act.
The ski company says it complied with the terms of the Ski Safety Act in marking Upper Prima Cornice as closed - where Conlin was killed - and therefore should not be found negligent.
Vail Resorts gets to reply once more to Heckbert's response. The Broomfield District Court Judge assigned will then decide whether the case goes forward or is dismissed.
Line in the snow?
A Colorado Avalanche Information Center report says that on Jan. 22, around 1 p.m., Conlin was on his telemark skis when he and five young skiers passed through an open gate in the Lower Prima Cornice area looking for fresh snow. Several others had already skied into the area that day, after one of last winter's rare storms dropped new snow, the report said.
A rope blocked the gate at the top of the Prima Cornice run.
Three of those skiers sidestepped about 120 feet up the hill and to the south.
Vail Resorts has insisted the run was closed, but does not say where the skiers crossed from the open area to the closed area.
When the avalanche released two skiers made it to safety, skiing down to the bottom of the Northwoods Express to get help, the Colorado Avalanche Information Center report said.
But the avalanche caught Conlin and carried him through a spruce forest until he came to rest against a tree, upside down.
Coroner Kara Bettis ruled that Conlin was killed by blunt force trauma to his chest. He did not suffocate, she said.