Vail Daily letter: Disagrees with judge over ski death lawsuit
December 19, 2012
I read with dismay that District Judge Patrick Murphy handed out a ruling supporting attorney Jim Heckbert, a lawyer who has built a career on high-profile lawsuits against the ski industry. Murphy ruled that slides are not an inherent risk of skiing, and Heckbert was given permission to proceed in a lawsuit relating to the inbounds avalanche on closed terrain in Vail that killed a local teen last year.
The tragedy inherent in the loss of a young teenager’s life and the grief of his friends and family aside, this ruling has two significantly negative implications for all of us who ski and recreate in the mountains.
First, it illogically invalidates some universally standard practices of ski areas across the country for controlling access to terrain.
Second, it continues to encourage skiers to operate under the blissfully false assumption that they will never face the risk of avalanches inbounds, and therefore don’t need to ski with the attendant caution and respect for terrain that such a sobering notion might require.
On the issue of ropelines: While parties will no doubt continue to dispute the details of the slide on Prima Cornice in court, the fact remains that the skiers hiked uphill into an avalanche closure. Having multiple gates to different portions of terrain is standard industry practice for controlling access to runs like Prima Cornice. It is logistically neither possible nor desirable to have patrol running miles of ropeline through gladed runs and other avalanche terrain on every mountain in the country.
Regardless that no “hard” boundary exists between the skier’s-left side of the run and the avy-prone skier’s-right area, anyone who goes in there can easily see that the left-hand ramp from the lower gate is significantly less steep, that’s why it is possible to open the lower gate without control work.
During the time I worked as a patroller on Lone Peak in Montana, we regularly had upper gates closed and lower gates open as way of controlling skier access until we were felt more confident about avalanche conditions in upper paths. Note that I said “felt more confident.” Avalanche risk is never zero, and the ski patrol will never claim as such.
Take a look at any other hill and you will see avalanche terrain controlled in the same manner. Numerous stacked gate entrances are used at Breckenridge as you traverse from the T-bar into the terrain on and below Peak 7.
How would Crested Butte have any hope of controlling access to the Headwall and Outer Limits area without this arrangement?
At Beaver Creek, multiple gates allow access into Stone Creek in the same way as the upper and lower Prima Cornice gates. It is perfectly reasonable to open the lower gates to allow skier access into those runs with the expectation that hiking uphill is not allowed. Short of closing any terrain that even smells like it might be avy terrain, which none of us wants, this is simply the best option resorts have to operate.
On the second issue: Judge Murphy’s ruling that avalanches are impossible inbounds (he determined they are not a legally defined inherent risk of skiing) may make you feel better about skiing expert terrain with impunity , but the mountains may not have gotten the message.
He might as well have ruled that it is illegal for cars to wreck on the road. Anyone who cares to pay attention should be able to recall numerous inbounds slides in recent years that beg to differ with Messrs Heckbert and Murphy.
Inbounds slides and deaths have happened at Jackson Hole (Toilet Bowl area), Squaw Valley (Paulson’s Gully), Snowbird (Baldy Chutes), A-Basin (Palavicinni area), Snowmass (Hanging Valley), Winter Park (another one that Heckbert is suing over), and The Canyons (Red Pine Chutes).
While I lived in Big Sky, post-control releases occurred in Liberty Bowl and off of Challenger lift nearly every year. It happens. Ski patrol did their job correctly and well. It still happens. If you choose to ski steep terrain, you have to accept it.
Based on this case and others, it is not clear that most skiers at Vail even understand that favorite inbounds runs are definitive avalanche terrain. Look Ma/Challenge, Genghis Khan, Lovers Leap, N/S Rim, Snag Park, Milt’s, Rasputin’s, Bald Eagle, Osprey, Ripsaw, Cataract, Peregrine, everything in Stone Creek – these runs easily tip the scales at 35 degrees or steeper and are avalanche terrain.
All of them have the potential to slide one day with you on them, after the resort opens, after control work. Patrol does an incredible and professional job mitigating the risk.
That still doesn’t make it zero, and that doesn’t leave you off the hook for being aware of the risk and making a conscious choice to ski the run.
Despite Heckbert’s assertion and Murphy’s court ruling, it is physically impossible to hit every pocket of avy danger on every run, every time it snows, every time the snowpack metamorphoses during the season. Use at your own risk.
Vail is the largest resort in the United States. If people believe that 80-ish ski patrollers a day can absolutely sniff out every lurking pocket of avalanche danger in 5,300 acres, including the numerous steep glades and off-map runs that we all regularly ski, they are kidding themselves.
These men and women already do the best job mitigating avy risk that is possible.
Unfortunately, complete elimination is an impossible task.
Attorney Jim Heckbert’s statement that “All of us would ski with beacons and shovels if avalanche is an inherent risk, especially when skiing with children” is very telling of his own and the general public’s happy willingness disregard avy risk inbounds.
If you move the scene a few states north to Jackson Hole, Big Sky or Bridger Bowl, you will witness a local skiing population that does precisely what Heckbert mocks.
Large numbers of skiers at those resorts ski inbounds with exactly that equipment, know how to use it, and teach their children how to use it or else put some limits on where their children ski.
If these teens had been skiing with an adult, is it as likely that hiking uphill access terrain behind a closed upper gate would have occurred? Probably not. Although based on the adults around here, that’s entirely supposition. Vail Mountain is not a 5,300-acre babysitter where parents get to drop the kids off and pretend nothing bad can ever happen. Nor is Beaver Creek. Nor is anywhere else, for that matter.
While Heckbert may have succeeded in convincing Judge Murphy of his interpretation of the letter of the law, he has unfortunately also succeeded in trashing the spirit of the law. The Skier Safety Act is clearly about personal responsibility for one’s own actions and institutional acknowledgement that not all risk is fully controllable.
If this incident eventually succeeds with a useful community discourse and produces a population that is aware of inbounds avy risk, it will certainly be a positive outcome. If the only consequences are miles of additional rope lines and the scapegoating of a hard-working ski patrol to win another lawsuit against a deep-pocket resort corporation, I wouldn’t say we should all feel good. Vail patrol may be many things, but they are not negligent.
When that inherently uncontrollable bit pops up and rears its ugly head, it doesn’t feel that great to be targeted by litigation-happy attorneys and a general public unwilling to admit a big mountain might not always and everywhere be safe.
Even if the upper gate had been opened and some bombs were thrown, that doesn’t mean this tragic accident would have been impossible. Fully “controlled” slopes will still slide from time-to-time on real-world mountains, apparently just not in Colorado’s courts.