There’s nothing worse than a lack of snow for skiers and snowboarders, and during the winter of 2011-12, forecasts in the high country produced one letdown after another. That is, until mid-January, when the clouds opened and Mother Nature delivered a blessed gift. Seven and a half inches of snow fell onto the slopes of Winter Park Resort on Tuesday, January 17, followed by another seven that weekend. The ski trails beckoned.
Christopher Norris felt the call of the mountains. The 28-year-old expert skier had headed west from the South Side of Chicago 10 years earlier to attend Western State College of Colorado (now Western State Colorado University) in Gunnison. “I don’t know if he came more to study or more to ski, but he loved it here,” says his wife and college sweetheart, Salynda Fleury.
It was the pair’s passion for the outdoors—his for skiing, hers for competitive running—that ignited their friendship and then, eventually, a relationship. The couple lost no time passing their infatuation on to their daughter, Indyka. By the age of three, in 2012, Indyka already had a season pass to Winter Park, a ski area about an hour from the family’s Evergreen home. The trio spent many weekends on the resort’s groomed runs; Norris and Fleury would take turns guiding their daughter while the other sought out steeper terrain.
On that Sunday morning, January 22, though, Indyka had a cold. Fleury offered to stay home with her and the couple’s then-seven-week-old son, Sage. Norris found a skiing buddy in his father-in-law. The two drove off into the bluebird morning.
As the stars emerged that evening, Fleury found herself at the base of Winter Park, awaiting news from ski patrol. Norris was missing. He hadn’t returned any of her dozens of calls, which was unusual; he’d also failed to meet up with his father-in-law for lunch as planned. Now, in the cold darkness, the desperate feeling that had propelled Fleury to race to the resort with her kids in the late afternoon was growing stronger.
Around 9 p.m., a ski patroller confirmed what Fleury’s gut had already told her. While traversing below a steep rock outcrop on one of his favorite runs, a tree route commonly referred to as Trestle Trees alongside the black diamond Trestle trail on Mary Jane, Norris had set off a shallow, 40-foot-wide avalanche. The terrain, including a downed tree, had funneled the slide toward Norris. Searching by headlamp, patrollers spotted his arm sticking up through two to three feet of avalanche debris. No one was certain how long Norris had been trapped. Fleury paused, inhaled the now-claustrophobic, frigid mountain air, and sat down next to her daughter. She needed to find the words to explain that Daddy wasn’t coming home.
Nearly 40 years ago, James Sunday was skiing an open run at Vermont’s Stratton Mountain when one of his skis got caught on a bush; the subsequent fall left him with quadriplegia. He sued the resort, and a jury awarded him $1.5 million. The National Ski Areas Association, the trade group that represents more than 20 ski area owners and operators, realized that lawsuits like Sunday’s would result in unfeasible insurance costs for ski resorts; the organization began working with states to draft legislation that would outline the responsibilities of both skiers and ski operators and establish the sport as inherently risky.
In 1979, Colorado passed a state Ski Safety Act that accomplished all three goals. (The country’s first such legislation was approved in Michigan in 1962.) In 1990, state legislators amended the Ski Safety Act to include a lengthy list of the specific inherent dangers of the sport, from changing weather conditions to collisions with natural objects such as trees. Ski areas would not be liable for any resulting injuries. However, one word is noticeably absent from the law: avalanches.
When Norris died on an open trail, Fleury, a stay-at-home mom, assumed the titles of breadwinner and sole caregiver. “We were just starting our lives together,” the 30-year-old Fleury says today. “There are a lot of hazards you expect when in a ski area, but you don’t expect to need your avalanche gear. I don’t think it’s fair the way that Chris died.” Four months after the accident, she filed a negligence and wrongful-death lawsuit against Intrawest Winter Park Operations Corp., the owner of the resort. (Intrawest’s lawyer did not respond to 5280’s phone calls and emails seeking comment.)
The case was dismissed by the Grand County District Court in December 2012; the state Court of Appeals affirmed that decision (with one judge dissenting) more than a year later. But this past December, the Colorado Supreme Court gave the lawsuit a life-saving breath by agreeing to hear one specific aspect of the case: whether or not “the term ‘inherent dangers and risks of skiing’…encompasses avalanches that occur within the bounds of a ski resort, in areas open to skiers.” A date for oral arguments has not yet been set.
Melanie Mills, president of Colorado Ski Country USA, the trade group that represents many local ski areas, including Winter Park, would not comment on the lawsuit but did say, “I don’t think the list of inherent risks was intended to be exclusive.” (Colorado Ski Country was involved in drafting the state’s original Ski Safety Act in ’79, as well as its subsequent amendments.) That statement contradicts the view of state Representative Scott McInnis, sponsor of Senate Bill 80, which was the first amendment to the Colorado Ski Safety Act. During a hearing on March 13, 1990, he stated that a requested language change to the inherent risk section was, “a slight narrowing of the amendment, and it’s a clarification that the items that follow are the inherent risks and dangers that are being referred to.” Avalanches, of course, are not on that list. Of the 27 states with ski safety acts, only two mention avalanches: Montana and Idaho.
“Avalanche risk at a ski area is not known to the general public because the public assumes if a trail is open, it’s safe,” says Fleury’s lawyer, James Heckbert, who is based in Steamboat Springs. “Does ski patrol normally do a great job? Absolutely. But the resort has a responsibility to protect the skiing public from risk that is known to [the resort]. The risk wasn’t known to Chris.”
Norris had experience in the backcountry and owned all the requisite safety equipment. But even if he had read the Colorado Avalanche Information Center(CAIC) backcountry forecast that morning, it likely wouldn’t have changed his decisions or his fate. The projection from 6:52 a.m. on January 22 rated avalanche danger as considerable to high for the Front Range. It urged powder hounds to avoid avalanche terrain and, instead, “enjoy the powder in the safety of the ski area.”
Taft Conlin was doing just that on the afternoon of January 22, 2012. Sometime after 1 p.m., the 13-year-old expert telemarker from Eagle set his gaze down Prima Cornice, a double black diamond considered one of the steepest on the front side of Vail Mountain. Just as his group started the run, someone set off a 200-foot-wide slide. (Vail had received well over eight inches of powder that weekend.) Conlin and two friends were overtaken by the cascading snow. One friend was not buried; the other walked away with bruises. Conlin was found 30 minutes later after being swept into a tree. The coroner ruled the cause of death blunt force trauma.
Colorado has had, by far, the most avalanche fatalities in the country—266 since the 1950-51 season, almost twice as many as the next state, Alaska—but avalanche deaths on open ski resort terrain are still relatively rare. Forty-four people were killed across the country by inbounds avalanches between the 1950-51 season and 2013-14, according to the CAIC. (Comprehensive numbers on how many total avalanches occur within resort boundaries are not readily available.) Before Norris and Conlin, the last open-terrain avalanche death in Colorado took place on May 20, 2005, when 53-year-old David Conway from Boulder died at Arapahoe Basin. Conway’s family did not sue, and A-Basin renamed the trail “David’s Run” in his honor.
The last such death before Conway’s occurred on January 9, 1975, at Crested Butte Mountain Resort—which makes it all the more improbable that on a single snowy day in 2012, two Colorado skiers would be killed by inbounds slides.
Conlin, a seventh-grader, was brought up by outdoors-loving parents, in a family where vacations meant rafting trips or days spent horseback riding. The 2011-12 season was the first time his parents were allowing him to go off and ski with just his friends. “He knew the rules,” his mom, Louise Ingalls, says. “He was totally capable of skiing on his own.”
Conlin’s parents filed a lawsuit against the Vail Corp. in July 2012. They claim wrongful death as well as a violation of the resort’s statutory duties for not properly closing the Prima Cornice trail. (If they win, the Ski Safety Act states that they, like Fleury, are eligible to receive a maximum of $250,000 in damages.) The Vail Corp. asserts that the run Conlin died on was closed. Though it appears as one continuous run on the trail map, Prima Cornice can be accessed via two separate gates, Upper and Lower, which are separated by more than 150 yards. The Upper section, deemed unsafe due to avalanche danger and lack of snow, had not yet opened that season and was closed on January 22. The Lower gate, through which Conlin and his friends had skied much of the morning, was open. To reach the start of the fatal run, Conlin’s crew entered through the Lower gate and then sidestepped up into Upper Prima Cornice. Vail argues that action was prohibited and put the teenagers in a closed area. James Heckbert, who is also representing Ingalls and Conlin’s father, Stephen Conlin, contends the area was open since sidestepping is common among Vail regulars. It’s also unclear what, if any, avalanche mitigation was done on the run before and during the morning of January 22. Vail ski patrol would not comment for this article, citing the ongoing litigation.
Vail’s lead counsel declined to be interviewed, but the company provided 5280 with a prepared statement. It reads, in part: “Taft took an inappropriate risk that day by intentionally climbing into unsafe terrain that had been clearly marked as such. Colorado law…recognizes that skiers, riders and ski area operators have a shared responsibility for safety on the mountain. We educate our guests that much of their safety rests in their own hands….”
The U.S. Forest Service, which issues special-use permits to all ski areas in the country that sit on USFS land, reviewed the incidents at both Vail and Winter Park in the days following the accidents. In both cases, they found the resorts to be in compliance with permit requirements, and neither was cited. Both ski areas, however, have changed procedures since the avalanches. At Winter Park, ski patrol has refined its terrain-opening practices but would not specify how. In March 2013, Vail announced that if the Upper Prima Cornice gate is closed as a result of avalanche concerns, the Lower gate also will be closed.
A Broomfield District Court judge ruled in June 2014 that Ingalls and Conlin’s case will continue to trial only after the Supreme Court hands down its decision in the Norris case. (At press time, the defense was working to have the lawsuit moved to Eagle County.) If the case does make it in front of a jury, it will be the first time a forum of average citizens, rather than industry folks and legislators, debates inbounds avalanches.