Vail could be liable in ski death suit for improper signage, judge rules
April 17, 2017
A district court judge in Eagle County has rejected Vail Resorts' motion to dismiss a wrongful death lawsuit filed by the family of Taft Conlin, 13, who was killed by an inbounds avalanche at Vail Mountain in January 2012.
The decision was a key hurdle for the case in overcoming the broad liability protections provided by the Colorado Ski Safety Act, a 1979 law that was strengthened further by a Colorado Supreme Court ruling last May.
Vail Resorts argued that the precedent set in that ruling, Fleury v. Intrawest Winter Park, protected the company from liability because it held that inbounds avalanches were included in the safety act's inherent risks of skiing.
Judge Frederick Gannet disagreed, writing that improper signage may have played a key role in Conlin's death and that a jury might conclude that Vail Resorts was at fault.
Conlin had been skiing with several friends at Vail Mountain on January 12, 2012, entering the gate-access Prima Cornice run multiple times from the lower gate, which was open. The upper gate was closed, but Conlin and another friend hiked up to the area below it, where he was swept into an avalanche and killed.
In the lawsuit, Conlin's family argues that Vail knew that accessing the upper part of the run from the lower gate was a common practice and therefore both gates should have been closed.
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"With the record as it currently exists, a jury could find that Vail intended to close Prima Cornice, but did not do so — it left an entrance open, through which access to the entirety of Prima Cornice remained not only possible but predictable," Gannet wrote in a seven-page ruling. "Instead, this is possibly an issue of signage, and it is thus necessary to examine the signage requirements of the (Ski Safety Act)."
In his ruling, Judge Gannet wrote that the Fluery precedent wasn't grounds for dismissal. In Fluery — a case brought by the family of a man who died in an inbounds avalanche at Winter Park Resort — the high court ruled that although they aren't listed in the Ski Safety Act, inbounds avalanches are inherent risks of the sport because they stem from changing snow conditions, which are listed in the law.
The key difference in Conlin's case, Judge Gannet wrote, is that Vail had closed the upper gate on Prima Cornice. That suggests that resort staff may have intended to close the run but failed to adequately indicate that by also roping off the lower gate.
"This is not necessarily a case of an arguably-negligent failure to close a trail upon which there was an avalanche, which would be barred by Fleury," Gannet wrote. "Rather, this may be a case of an intent to close a trail, with the public not being properly notified through signage at identified entrances."
Still in question is whether or not Vail knew that hiking from the lower gate was a common practice or not, a question Gannet left to a jury.
"There is a factual dispute as to whether Vail was aware that skiers would hike or ski the entirety of Prima Cornice from the Lower entrance," he wrote. "If the jury finds that Vail was aware of this practice, and because the entirety of Prima Cornice is identified as a single trail, the jury is also welcome to find that Vail at the least tacitly condoned this access. … Accordingly, a jury could also find that Vail was required to indicate, at the Lower Gate, that the area below the Upper Gate was closed."
The Conlin family's attorney, Jim Heckbert, wrote in an emailed statement to the Vail Daily that the suit wasn't about money.
"The family is very happy to be assured the case will go forward to trial in August, and that a jury of Eagle County citizens will be allowed to hear and decide the complete story about the case of Taft Conlin's death. This is not about money. Any monetary award the jury may make to the family will be given to charity."
A Vail Resorts spokesman also emailed a statement to the Vail Daily, writing:
"As this is an ongoing legal matter, we will not comment on the specifics of this particular motion. As always, we support the work of our Mountain Safety and Ski Patrol teams in promoting responsible skiing and riding at all of our resorts to provide a safe experience for guests and employees."
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