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.
Rebecca Vogel-Pitts in her Longmont home. (Photo by Hugh Carey)
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.