Burg Simpson Wins Latest Battle in Avalanche Case
In 2012, 13-year-old Taft Conlin and four of his friends made their way through the open lower gate of Prima Cornice in Vail, a ridgetop that sits above a skiable area. After several runs in this area, an avalanche swept over Conlin and two of his friends, killing him and injuring another.
His family subsequently filed a wrongful death suit against Vail Resorts, but that suit stalled as the Colorado Supreme Court considered a similar case that questioned the Colorado Ski Safety Act, which suggests skiers assume responsibility for the risks associated with their sport – in this case, avalanches.
Last May, the Supreme Court affirmed 5-2 that avalanches are “inherent risks” assumed by skiers when they take to the slopes. Based on that ruling, Vail resorts sought to have the Conlin case similarly dismissed. But District Judge Frederick Gannett ruled this week that the case might be more of a “signage” issue than anything else and allowed it to move forward.
“The court does not view this as a matter of simply whether an in-bounds avalanche is an inherent danger,” Gannett wrote in his ruling. “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. Instead, this is possibly an issue of signage.”
Burg Simpson senior counsel James G. Heckbert argued the case for the surviving parents.
“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 cause of Taft Conlin’s death,” Heckbert wrote in an email statement about the ruling. “This is not about money. Any monetary award the jury may make to the family will all be given to charity.”
In short, Gannett concluded, “If a jury finds that Vail intended to close Prima Cornice or a portion thereof and that Vail’s signage was insufficient or improper under the [Ski Safety Act], a verdict in favor of Plaintiffs may be possible.”