Vail Resorts wants avalanche lawsuit dismissed
September 22, 2012
BROOMFIELD – Vail Resorts asked a judge to dismiss a wrongful death lawsuit, saying Taft Conlin’s death was tragic but that his parents’ lawsuit fails as a matter of law under Colorado’s Ski Safety Act.
Conlin’s parents, Louise Ingalls and Stephen Conlin, sued the ski company about a month and a half ago. Their son, Taft, died because the company’s negligence created an “avalanche trap” that killed him, they said in the lawsuit.
The ski company filed its response late Thursday afternoon in Broomfield County District Court, saying the lawsuit should be dismissed “because the incident resulted from ‘inherent dangers and risks’ of skiing,” and that the company is protected because it did not violate Colorado’s Ski Safety Act.
Conlin’s parents’ attorney, Jim Heckbert, called the ski company’s assertion “frivolous.”
“They want to claim that an avalanche is an inherent risk of skiing,” Heckbert said.
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.
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“The ski safety act says if you want to close a trail you must close all entrances to that trail. That second gate was left open, and that violates the Ski Safety Act,” Heckbert said. “If they violated any part of that statute, and they did, they are in violation of that act.”
“They left the door open to a place they claim was dangerous. It’s like having a lion in a cage and leaving the door open, then saying it’s not your fault when someone gets hurt,” Heckbert said.
Heckbert called the ski company’s response “standard procedure.”
“Defense lawyers get paid by the hour. The more paperwork they generate, the more fees they create,” he said.
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
In its response, Vail Resorts asked a Broomfield District Court judge to dismiss the lawsuit, citing the Ski Safety Act.
“The avalanche that occurred here was tragic. However, based on the provisions of the Ski Safety Act and the claims alleged in the complaint, plaintiffs’ claims must be dismissed,” the ski company said in its lawsuit.
Vail Resorts based its request on four assertions:
1. Conlin’s death resulted from an avalanche, which is one of the “inherent dangers and risks of skiing,” and such dangers and risks are not actionable under Colorado’s Ski Safety Act.
2. Conlin’s parents and Heckbert attempt to bring common law claims that are preempted by the Ski Safety Act. The Ski Safety Act allows for recovery only for specified violations of the Act. Since their lawsuit does not allege any such violations, it should be dismissed, the ski company said in its response.
3. 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.
4. Vail Resorts attorneys claim that Colorado does not recognize a cause of action for “wanton and willful conduct,” as alleged in Conlin’s parents’ lawsuit.
Conlin’s parents filed their lawsuit in Broomfield District Court because that’s where Vail Resorts’ corporate offices are located. Their response to the ski company’s request should be filed in the next week or two, Heckbert said.
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 – blows to his chest. He did not suffocate, she said.
Staff Writer Randy Wyrick can be reached at 970-748-2935 or email@example.com.