Upper Prima Cornice was closed when skier met his death, Vail Resorts argues
November 17, 2013
VAIL — Vail Resorts said in court documents filed late Wednesday that upper Prima Cornice was closed when an avalanche killed a local teenager, and the teen knew it was closed because he skied past signs indicating that.
The ski company's statement came in response to Taft Conlin's parents asking for punitive damages in a lawsuit stemming from the death of their son.
"The effort to include punitive damages in this case is without factual basis and is outrageous," said Hugh Gottschalk, counsel for Vail Mountain and a partner at Wheeler Trigg O'Donnell.
Conlin's parents' attorney, Jim Heckbert, of the Denver firm Burg Simpson, filed a motion asking for punitive damages. He insisted that since corporations cannot be put in jail, they should be hit where it will hurt them most — in the wallet.
In that motion, Heckbert asserted that depositions indicated Vail ski patrollers did no avalanche mitigation on Prima Cornice, then created documents afterward to indicate they did.
VR says it was closed
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In Wednesday's filing, Vail Resorts asserted that Conlin hiked up into the closed terrain, almost 100 vertical feet above the lower gate and 360 horizontal feet from inside the lower gate towards the upper gate.
"Taft was only 35 vertical feet below the upper gate," the ski company said.
Gottschalk said the blame remains with the skiers and not the ski company.
"Regardless of whether the court allows a jury to review the issue, the allegation that Vail Ski Patrol intentionally put Taft Conlin at risk is absurd and offensive," Gottschalk wrote. "Putting aside that the child of a member of Vail's ski patrol was skiing with Taft that day, one of ski patrol's primary purposes is to do their best to prevent accidents. But they cannot be held responsible when guests make poor decisions."
Gottschalk said the Vail Ski Patrol properly closed the upper portion of Prima Cornice trail, a double black diamond run, because of potential avalanche danger.
"That day, Taft, an expert skier who had skied Prima Cornice for years, skied by the closed upper portion of the trail numerous times, each time passing multiple closure and avalanche danger signs," Gottschalk said. "On his last run, Taft entered through the lower gate to the trail and hiked uphill over 360 feet back towards the terrain directly under the closed and avalanche danger signs."
Conlin's run triggered an avalanche from a location properly accessed only through the upper gate to the run, Gottschalk said.
"Taft knew it was closed, but still clearly wanted to ski that terrain," Gottschalk said. "While we understand the pain of so many in this tragedy, diverting the blame to ski patrol is not warranted or constructive."
Inaccurate, plaintiff says
Heckbert called Vail Resorts' statements "inaccurate."
"We never said Vail Ski Patrol intentionally tried to hurt Taft Conlin and his friends. We said they were reckless. It's an inaccurate statement, and Vail Mountain knows it's an inaccurate statement," Heckbert said.
"When you intentionally hurt someone, you go to jail. That's what jails are for. Punitive damages are for when people are reckless," Heckbert said.
Conlin did not intentionally go into a closed area, because it wasn't closed, Heckbert said.
"People have been accessing the upper part of Prima Cornice for decades," Heckbert said. "We have a lot of people who will say they have known it, including former Vail ski patrollers."
Open or closed?
The industry standard and legal precedent is that for a run to be closed every access must closed, Heckbert said. The lower gate was open.
But Vail Resorts insists it was closed. By closing the upper Prima Cornice gate and running ropes along the trail, the Vail Ski Patrol complied with the requirements of Colorado's Skier Safety act, the ski company said.
"Under the Act, skiers are presumed to have seen and understood posted signs," the ski company said.
About 1:45 p.m. Jan. 20, 2012, Conlin and his friends accessed Prima Cornice trail through the lower gate, which was open. The run's upper gate was closed following the first big storm of that snow-starved season.
Heckbert cited the Colorado Skier Safety Act as saying that if a ski area operator wants to close a trail, a sign must be placed at each identified entrance or a rope strung up to identify the closed area.
Conlin and a friend sidestepped to a cliff above the lower gate. The avalanche swept them away, and Conlin was killed. The Vail Ski Patrol found his body wrapped around a tree. Eagle County Coroner Kara Bettis said he was killed by a blunt force chest injury.
The avalanche was 18 inches deep, 200 feet wide and ran approximately 400 feet, according to the Colorado Avalanche Information Center.
Staff Writer Randy Wyrick can be reached at 970-748-2935 and firstname.lastname@example.org.