Backcountry skier sues in Small Claims Court in San Miguel County Colorado for injuries she received when a backcountry snowboarder triggered an Avalanche that injured her.Posted: January 8, 2018
The defendant snowboarder had agreed not to descend the slope until the lower parties had called and told them they had cleared the area. The defendant failed to wait and admitted he had triggered the Avalanche.
State: Colorado, San Miguel Small Claims Court
Plaintiff: Jayleen Troutwin
Defendant: Christopher Parke
Plaintiff Claims: Negligence
Holding: for the plaintiff
Under Colorado law, you can create a duty when you agree to act or not act. Here the defendant created a duty when he agreed not to descend the slope until he had received a phone call from the first party that they had cleared the danger area.
This is a first of its kind suit that I have found, and the judge’s decision in this case is striking in its clarity and reasoning. At the same time, it might open up backcountry injuries to more litigation. The facts that created this lawsuit are specific in how the duty was created, and that will be rare in 90% of the backcountry accidents.
I have attached the written decision of the court to this analysis, and I encourage you to read it.
Facts: taken from the complaint, the CAIC Report and The Order of Judgment
The plaintiff was skiing out of bounds in Bear Creek outside of the Telluride Ski Area. While skiing they ran into the defendant and his friend. The defendant and friend were not ready to go, so the plaintiff and friend took off. The plaintiff and friend stated they would call the defendant when they were out of the danger zone at the bottom of the chute they both intended to ski.
The defendant and his friend did not wait, and triggered an avalanche. Plaintiff was still repelling when the avalanche hit her sweeping her off the rappel, and she fell 1200 feet down the slope riding the avalanche. She survived on top of the snow with several injuries.
The defendant admitted that it was his fault, and he would pay for the plaintiff’s medical bills. He made one payment and no others. The Plaintiff’s medical bills were in excess of $50,000. However, she still skied out after the incident.
The plaintiff sued the defendant in Small Claims Court. Small Claims court is for parties without attorneys, and the judge can grant a maximum of $7500.00 in damages.
Analysis: making sense of the law based on these facts.
Normally, participants in sporting or outdoor recreation events assume the risks inherent in the sport. Avalanches are an inherent risk of skiing. The Colorado Supreme Court has stated that in Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
Under most circumstances, the plaintiff in this situation would have assumed the risk of her injuries. What sets this decision apart was the agreement at the top of the mountain between the two groups of people. One group agreed not to descend into the chute until the other group had cleared the chute.
This creates an assumed duty on the part of the defendant. By agreeing to the acts, the plaintiff assumed a duty to the defendant.
The assumed duty doctrine “must be predicated on two factual findings.” “A plaintiff must first show that the defendant, either through its affirmative acts or through a promise to act, undertook to render a service that was reasonably calculated to prevent the type of harm that befell the plaintiff.” “Second, a plaintiff must also show either that he relied on the defendant to perform the service or that defendant’s undertaking increased plaintiff’s risk.”
This assumed duty was done specifically to prevent injuries to the other skiers. The skiers also relied on this agreement when they skied down the slope.
This Court, therefore, finds that the Defendant assumed a duty of care in agreeing not to ski his chosen route while Troutwin and Hope were still skiing theirs in an effort to avoid a skier-triggered avalanche.
Thus, when the defendant started down the chute, he violated the agreed to duty of care to the skiers below them.
The next issue to prove negligence in this case is causation or proximate causation. The breach of the duty by the defendant must be related to the injury the plaintiff received. The court simply found but for the actions of the defendant, the injuries of the plaintiff would not have occurred.
The defendant admitted triggering the avalanche, and the avalanche is what swept the plaintiff off the rappel.
The defendant raised two defenses at trial. Comparative Negligence and Assumption of Risk.
Comparative negligence asks, “did the actions of the plaintiff create or expose the plaintiff to an unreasonable risk of harm?” Comparative negligence is applied to reduce the damages the plaintiff might receive if both parties are at fault in causing the injuries to the plaintiff.
The defendant argued the plaintiff assumed the risk of her injuries and was a partial cause of her injuries when she did not use a backup device on her rappel.
The court looked at the failure to use a backup system on rappel as the same as failing to wear a seatbelt in a car or failing to wear a helmet while riding a motorcycle. Both have been determined by the Colorado Supreme Court to not be a component contributing to comparative negligence.
The reasoning behind this is simple. The plaintiff should not be required to determine in advance the negligence of any third party. Meaning it is not the injured parties’ duty, in advance to determine and then deal with any possible negligence of any other person. If that was the case, you could never leave the house because you never guessed what injury you might have received.
…[f]irst, a defendant should not diminish the consequences of his negligence by the failure of the injured party to anticipate defendant’s negligence in causing the accident itself. Second, a defense premised on an injured party’s failure to wear a protective helmet would result in a windfall to tortfeasors who pay only partially for the harm their negligence caused. Third, allowing the defense would lead to a veritable battle of experts as to what injuries would have or have not been avoided had the plaintiff been wearing a helmet.
The court found that neither comparative negligence, nor assumption of the risk applied to these facts and were not a defense to the plaintiff’s claims.
The court also added a section to its opinion about the future of backcountry skiing and the Policy issues this decision might create. It is well-written and worth quoting here.
51. This Court has determined that Parke’s duty of care is a result of his express assumption of that duty, rather than broader policy concerns that are typically addressed in protracted discussions of legal duty. It is nevertheless, worth noting that given the increasing popularity of backcountry skiing and skiing into Bear Creek, in particular, the risk of skiers triggering avalanches above one-another is likely increasing. In situations where skiers have no knowledge of whether a group is below, the legal outcome of an accident may be different than the result reached here. A liability rule that thus encourages skiers to avoid investigating whether their descent might pose a risk to those below feels averse to sound public policy. Communication and coordination between groups of backcountry skiers is surely good practice.
52. But meaningful communication is not necessarily impossible in these circumstances. This Court is swayed by the availability of radios like that which Troutwin and Hope carried. These radios are a communication option that appears more reliable than cellular telephones. Perhaps if they become more prevalent, more communication between parties will take place. And it follows and is foreseeable that other communications platforms or safety standards will develop to address this specific risk. The liability rule discussed here does not necessarily foreclose those developments.
53. The ethics and liability rules associated with backcountry skiing are likely to continue to evolve as its popularity increases and safety standards emerge. The law is likely to continue to evolve in kind.
It is refreshing to see a judge look at the broader aspect of his or her decision as it applies to an evolving sport.
The court found that the plaintiff suffered $9,660.00 in damages. The jurisdictional limit a Colorado Small Claims court can issue is a maximum of $7,500.00, which is the amount the plaintiff was awarded.
So Now What?
If you say you are going to do something, do it. If you say you are going to wait, wait. It is that simple.
More importantly, litigation has now entered the realm of backcountry skiing. Will it create more litigation, probably? Backcountry skiers who have no health insurance or no income while they recover will be looking for a way to get hospital bill collectors off their phone and pizza coming to the front door. Worse, health insurance companies will look at a way through their subrogation clauses to try to recover the money they pay out on behalf of their insureds.
At the same time, based upon these facts, the defendant was the sole cause of the plaintiff’s injuries not because he triggered an avalanche, but because he agreed not to trigger an avalanche.
Trial Exhibits 1 through 9
Copyright 2017 Recreation Law (720) 334 8529
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