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
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New Wrinkle in the skiing out of bound’s odyssey. Douglas County Nevada law prohibits it, even though US Forest Service says it is not illegal.Posted: December 30, 2015
Man skiing out of bounds, missing & SAR goes looking for him. When he shows up, he is issued a ticket for violating an out of bounds skiing law in Douglas County, Nevada.
A skier a Tahoe NV resident, ducked a rope at Heavenly Ski Resort and ski out of bounds. When he did not come back after two hours, and the resort had closed his friends called the sheriff’s office.
The Douglas County Sheriff’s office and Douglas County Search and Rescue (SAR) team started a search. Four hours later, the missing skier contacted the sheriff’s office and notified them he was OK.
Soon thereafter, the sheriff’s office met the individual and issued him a ticket for skiing out of bounds. Bail was $640.00.
Nevada has a Skier Responsibility Code, which specifically allows counties to enact their own codes if they do not conflict with the Nevada state skier responsibility code. Consequently, Douglas County has added to the responsibilities with its code, which affects Heavenly.
(How the civil requirements and prohibitions are applied from a criminal code is confusing.)
The main difference between the state statute and the county ordinance is the skiing out of bound’s section.
11. A skier, having used a ski lift or surface lift of a ski area, must no ski under a manmade barrier that is designed to prohibit a skier from entering a closed portion of the ski area or from leaving any part of the ski area. For the purpose of this section, a barrier may be designated by roping off an area. Any skier that violates this subsection is guilty of a misdemeanor.
In this case, based on the facts from various articles, the skier probably should have been fined ducking a rope by himself and disappearing for four hours.
However, several other news stories reported the US Forest Service side of the story which says skiing on US Forest Service land is not illegal. See the article in the local paper, The Record Courier: Skiing out of bounds is not a crime. It is a fairly well written article.
The article states that three people needed rescued after exiting through ski area gates.
Every ski area concessionaire’s contract I’ve seen requires at least one gate allowing access from the ski area to US Forest Service land. Consequently, the ski area cannot say the person violated any of their rules about ducking a rope or going out of bounds because it is required.
At the same time, it is legal to be on US Forest Service land unless the US Forest Service closes the land. So far, the US Forest Service only closes land to certain types of vehicles or for the land to recover. No winter closures have ever occurred to my knowledge.
California does have a statute that allows law enforcement to close land based on Avalanche risk. However, the actual authority to close US Forest Service land vests only with the US Forest Service. Here is the California Statute:
(a) Whenever a menace to the public health or safety is created by an avalanche, officers of the Department of the California Highway Patrol, police departments, or sheriff’s offices, any officer or employee of the Department of Forestry and Fire Protection designated a peace officer by subdivision (g) of Section 830.2, and any officer or employee of the Department of Parks and Recreation designated a peace officer by subdivision (f) of Section 830.2, may close the area where the menace exists for the duration thereof by means of ropes, markers, or guards to any and all persons not authorized by that officer to enter or remain within the closed area.
If an avalanche creates an immediate menace to the public health, the local health officer may close the area where the menace exists pursuant to the conditions which are set forth above in this section.
(b) Officers of the Department of the California Highway Patrol, police departments, or sheriff’s offices, or officers of the Department of Forestry and Fire Protection designated as peace officers by subdivision (g) of Section 830.2, may close the immediate area surrounding any emergency field command post or any other command post activated for the purpose of abating hazardous conditions created by an avalanche to any and all unauthorized persons pursuant to the conditions which are set forth in this section whether or not that field command post or other command post is located near the avalanche.
(c) Any unauthorized person who willfully and knowingly enters an area closed pursuant to subdivision (a) or (b) and who willfully remains within that area, or any unauthorized person who willfully remains within an area closed pursuant to subdivision (a) or (b), after receiving notice to evacuate or leave from a peace officer named in subdivision (a) or (b), shall be guilty of a misdemeanor. If necessary, a peace officer named in subdivision (a) or (b) may use reasonable force to remove from the closed area any unauthorized person who willfully remains within that area after receiving notice to evacuate or leave.
(d) Nothing in this section shall prevent a duly authorized representative of any news service, newspaper, or radio or television station or network from entering the areas closed pursuant to this section.
So if you are not in California where the land was allegedly was closed, and you duck a rope to ski US Forest Service land can you be criminally charged? Yes. However, only if a specific set of facts have occurred, and this can probably never happen.
If the ski area boundary rope is on the boundary of the concessionaire’s permit with the US Forest Service then ducking the rope is not illegal. You can legally gain access to the US Forest Service land. However, the boundary rope must be on the US Forest Service land or right on the border.
However, ski areas do not place their boundary ropes on the US Forest Service land. The boundary ropes are always offset from the boundary. If you duck a rope and enter closed ski area land, then you have committed two crimes under most state statutes.
You have ducked a rope, and you have trespassed onto closed land.
More importantly don’t be an idiot. You ski or board out of bounds, that triggers a search for your butt; I hope they do find you and fine you. The hard-working VOLUNTEER men and women of county Search and Rescue units have enough idiots to find every year. Don’t add your name to their list.
What do you think? Leave a comment.
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