INHERENT RISKS

There have been 137 confirmed fatalities at Colorado’s ski resorts over the past decade. Kevin Pitts became the state’s first for the 2016-17 season.

In the vast majority of these accidents, loved ones are left to rebuild their lives in the midst of intense grief. Few of them would consider filing a lawsuit.

Rebecca believes that poor conditions in the high-alpine terrain her husband was skiing likely contributed to his death and should never have opened that day. She thinks the wind may have kicked up snow, obscuring his vision right before he crashed. However, she dismissed the idea of a lawsuit. She said he wouldn’t have wanted it that way.

He was a risk-taker, fond of charging through the powder along the trees. She said he fully understood the possible dangers of these choices. But, for those families who do wish to consider suing a ski resort in Colorado over the death of a family member, it’s a daunting option.

In 1978, a beginner skier named James Sunday successfully sued Vermont’s Stratton Mountain after an injury the year prior from a fall on a green run left him a quadriplegic. A jury awarded him $1.5 million in the suit, changing the stakes for resort operators nationwide.

Spurred on by the ski industry, Colorado’s Legislature soon passed the Ski Safety Act in 1979 to help these burgeoning enterprises avoid paying potentially exorbitant settlements to injured skiers and their families. Michigan was the first to pass such a law, in 1962, but many more followed the Sunday verdict, including Colorado. Today, 27 states have similar safeguards in place for ski resorts.

But since the act was first adopted, the industry has ballooned to approximately a quarter of Colorado’s annual tourism revenue, at almost $5 billion. Today, deals worth hundreds of millions of dollars have become more common, as one resort swallows the next.

The state statute, which many law firms and safety advocates say grants resorts almost full immunity, has only been strengthened through the years. It’s twice been amended, in 1990 and 2004, to expand protections by increasing the range of risks legally considered inherent to the sport. A May 2016 court ruling added inbounds avalanches to the list in response to an ongoing civil case stemming from the death of a 28-year-old Evergreen resident at Winter Park Resort in January 2012.

Attorney Evan Banker, a skier himself, is a partner at Denver-based Chalat Hatten & Banker, which specializes in ski accidents. He doesn’t disagree the sport comes with a set of dangers. That’s part of what makes it so popular, he said. However, that should also come with some clear limitations for operators.

“There is an assumption of risk as part of the sport,” he said, “but at the same time these areas are becoming more groomed and manicured, and are not serving the backcountry wilderness explorer as much as they are the vacations for families. It’s become a lot closer to Disney than it is to K2, and when taking on that level of providing an amusement, there should be some sort of responsibility for the amusement that you provide.”

In the rare instance where an injury from skiing or snowboarding at a resort does not constitute an inherent risk, compensation for things like pain and suffering, physical impairment and disfigurement are fixed at $250,000. A cap of $1 million also applies for lost wages and medical bills. Liability waivers signed by people who purchase ski passes further shields the ski industry. The passes note that if plaintiffs lose in court they must pay the resort’s legal costs.

Such a tightly written law has produced a system, said Banker, where there’s no motivation for increasing safety and preventing injuries and deaths.

“What’s the point of a regulation or responsibility if the answer is, ‘So what?’” he said. “There’s no financial incentive for doing it if there’s no responsibility. With immunity, you incentivize irresponsibility. Liability incents responsibility. The incentive not to have people die at resort is bad publicity.”

In one sense, Vail Resorts, owner of Keystone and Breckenridge Ski Resort, as well as Vail Mountain and Beaver Creek Resort in Eagle County, agrees with Banker. In the publicly traded company’s SEC-required annual report from 2016, it lists the following under its risk factors for current and future investors:

“There is a risk of accidents at our mountain resorts or competing mountain resorts which may reduce visitation and negatively impact our operations. Our ability to attract and retain guests depends, in part, upon the external perceptions of the company, the quality and safety of our resorts, services and activities. While we maintain and promote an on-mountain safety program, there are inherent risks associated with our resort activities. An accident or an injury at any of our resorts or at resorts operated by competitors, particularly an accident or injury involving the safety of guests and employees that receives media attention, could negatively impact our brand or reputation, cause loss of consumer confidence in us, reduce visitation at our resorts, and negatively impact our results of operations. The considerable expansion in the use of social media over recent years has compounded the impact of negative publicity. If any such incident occurs during a time of high seasonal demand, the effect could disproportionately impact our results of operations.”

Intrawest Resorts Holdings, which was recently sold to Aspen Skiing Co. and a private equity firm, has comparable language in its most recent annual report, as does Six Flags Entertainment Corporation.

Even if ski-accident lawsuits were more viable, however, it turns out that much of the information available to families seeking legal redress comes from the potential defendant — the ski resort.

THE NOTE CARD

When their son Jay, 27, died in at Keystone Resort in January 2016 after hitting a tree while skiing, Harry and Lynda Taylor of Manchester-by-the-Sea, Massachusetts, said they were met with a culture of silence that did little to answer their questions or ease their pain.

“We felt a cover-up while we were out there,” said Harry. “At Keystone, everybody knew about it, but it was like, ‘Hush-hush, we don’t talk about it.’ We asked and were told no, that we weren’t even allowed to speak to the patrollers who found him.”

The couple persisted, demanding to see investigation documents from the scene prepared by resort staff.

As a rule, both the sheriff’s office and the county coroner’s office investigate skier deaths. The incident report from the sheriff’s office helped the Taylors to better understand what may have led to Jay’s accident. However, in the hunt for more facts, they were told by the resort that all that’s produced from the internal accident analysis is a 3-by-5 note card. They were told it would take a subpoena to obtain.

It is unclear what sort of training the resort staff must have to conduct such investigations. The National Ski Patrol states most ski areas employ best practices on accident investigations, but acknowledges there are no standards mandated by law. Resorts declined requests for an interview seeking greater clarity on their internal death investigations.

Vail Resorts issued a written statement.

“In terms of incident investigation, we have a rigorous and thorough process that includes our ski patrol and senior management working in coordination with local law enforcement and the U.S. Forest Service,” wrote Jim Jonas, Vail Resorts’ director of corporate communications. “And our family liaison teams work immediately and closely to provide support for victim’s families and friends.”

Eventually the Taylors did receive that note card without the assistance of a lawyer, but it included very little that would help them understand what killed their son. In fact, it listed the wrong phone number, mailing address and city of residence.

The resort’s unwillingness to share details, they said, played a part in furthering their grief. They started calling lawyers as they pondered a lawsuit over there being a hidden obstacle that led to Jay’s death. They found that, too, is covered under the Ski Safety Act.

“There’s obviously no motivation for safety with the ski industry, because there’s no payouts, essentially,” said Lynda. “With an auto fatality, you might win an award for liability. That doesn’t fix it at all, but it’s something. It’s something, and this is nothing in every way. It just feels like your body is thrown in a truck and that’s it. They just write it off.

“It’s totally irresponsible,” she continued, “ and what this means is each family comes upon this one by one by one, and they have to deal with this individually. And there’s no recourse.”

‘I WANT MY SON COUNTED’

Rebecca Vogel-Pitts eventually settled on selling the family home. Her late husband often worked from home, and having extra distance from such memories would help her move on. She bought a house two blocks away from the school in Longmont where she works as a second-grade teacher and has more friends and family nearby.

“A change of scenery will be good for me,” she said. “I feel I’ll have a lot more support and life will be a little easier to help me move through this grief and just to try to move on — not move away from it, but to move in a positive direction.”

She was thankful for a call from John Buhler, Breckenridge Ski Resort’s vice president and COO, to offer condolences a few days following the incident. More than 400 people — family, friends, current and former coworkers — showed up to services in Longmont for Kevin to help celebrate his life as well, which she found comforting. Still, Rebecca would have liked a little more communication from the resort after the fact.

“I probably would have appreciated more of a follow up from Breckenridge,” she said, “because I haven’t really heard anything since the day after he died. You’d think if someone dies on your hill, you’d want to follow up and make sure the family is doing OK. But I haven’t heard anything.”

Not completely satisfied with what she heard about the circumstances of her husband’s death, Rebecca sought out the skier who first came across his body. Based on his account — combined with what the doctor told her about Kevin suffering a torn aorta, broken legs and brain bleed after his helmet cracked in two — she was convinced he died immediately.

“He didn’t know what hit him,” she said, “he didn’t see it. The doctor said there was no way he survives this, not for a second. I wouldn’t want him to survive something like that. He wouldn’t have been a normal person. For me, that makes it easier. It brings me a sense of closure.”

But per established policy, the ski area didn’t volunteer information about the death of Kevin Pitts, No. 125 — just the same as the 124 people who died from a ski-related accident at one of Colorado’s resorts before him, and the 12 who followed this season. Citing privacy reasons, the industry trade group holds to a similar strategy.

“Why is it actively hidden?” said Lynda Taylor. “They assume one way or another that a family doesn’t want it revealed, and it’s wrong. There’s contention over these fatalities, and I want my son counted — and not ignored.”