If you've ever seen the action flick "xXx," you remember the scene where Vin Diesel, playing a thrill-seeking extreme-sports enthusiast, escapes death by avalanche by outrunning it on his snowboard.
It's brainlessly fun cinema magic. But for skiers and snowboarders, avalanches are a scary and sometimes tragic reality you can't always outrun—something we were reminded of after the recent deaths of two U.S. Ski Team members in an avalanche at a resort in the Austrian Alps.
Still, snow slides are nothing new to skiers and snowboarders. This is a community that willingly partakes in a sport that goes hand in hand with some pretty serious risks: head injuries, broken bones, camouflaged cliffs, and, yes, avalanches—giant slides of snow, ice, and debris sent barreling down a mountain by both natural conditions (snowfall, wind-loading, temperature fluctuations) and humans themselves, both through accidents and strategically placed explosives. They aren't entirely unpredictable, though: Avalanche forecasters have made a science out of studying weather patterns and snow layers for signs of potential instability.
And because avalanches can potentially be predicted, managed through controlled explosions, or roped off—unlike tornadoes or earthquakes—you could argue that ski resorts have some control over avalanches and that therefore guests depend on them to mitigate the risks. So when something goes wrong at a ski resort, who is on the wrong end of the accusing finger? Who's legally responsible, and when?
It's that question you hear buzzing in the chilly corners of some of the country's most popular ski resorts as the Colorado Supreme Court takes up the issue, a trickle-down from lawsuits brought to court back in 2012 after two incidents of avalanche deaths within ski areas. Could the ski areas have done more to prevent these deaths, to protect skiers from the threat of an avalanche within ski area boundaries?
Liability for ski resorts is a tricky and complex subject, but the general rule of thumb says that the resorts can't be held liable for most injuries because the sport itself is, put plainly, inherently dangerous, so as long as the resort and its employees don't purposefully cause harm to their guests, you won't be squeezing a dime out of them.
Avalanches have been filed under "Not Our Fault" with the rest of the bum-bruising and knee-busting accidents that can happen on the mountain. The Colorado Court of Appeals decided in 2014 that avalanches are just another one of those risks you take when you go skiing.
Here's the catch: When deciding this, the CO Court of Appeals compared an avalanche to a cornice (an overhanging piece of snow on a ridge), which is one of those legally inherent risks. However, one judge thought otherwise, deciding instead that an avalanche is not expressly included within the class of skiing risks—which is how this whole issue ended up at the Colorado Supreme Court.
So what does this mean? It means ski resorts could potentially become liable for avalanche accidents that happen in-bounds.
The NSAA (National Ski Areas Association) says that avalanches can occur within the boundaries of ski areas, but that the "overwhelming majority" of accidents happen in the backcountry outside of ski area boundaries. Still, the industry as a whole is focused heavily on in-bounds avalanche control, safety, and education to reduce the risk.
During the 2013–2014 ski season, there were 35 fatalities from avalanches in the U.S., all of them occurring in the backcountry outside of ski area boundaries, according to the NSAA and CAIC (Colorado Avalanche Information Center). The number of fatalities happening within those boundaries actually went down (to zero) from past seasons, when there was a single incident of a resort guest dying in an avalanche within those perimeters. (It's worth noting two ski patrollers also died during the same season, on the job and in areas closed to the public.)
To put it in perspective, of the 411 total avalanche deaths in the U.S. since 2000, only 11 involved skiers or snowboarders in-bounds. If you believe in statistics, the NSAA reports less than one fatality from in-bounds avalanches at ski areas per 100 million skier visits.
There's not a doubt in my mind that any avalanche death is a tragedy. But if you choose to put yourself at risk, to ski an out-of-bounds area, or heck, even go skiing at all, what happens to you while doing so falls under your personal responsibility.
What does that mean for the industry if suddenly resorts can be held responsible for avalanche accidents? At first, not much—after all, in-bounds avalanches not triggered purposely by ski patrol are less common than slides in the backcountry. However, there are some pretty serious implications here—as in, poof, those resorts you love so much? Gone. Sued away into nothingness.
But more important, holding ski resorts responsible for an inherent risk sets a dangerous precedent for all of those other inherently risky outdoor activities we love so much. What's next, asking a state park to pay out when there's a rock-climbing accident because, well, they could have made those rocks safer?
The real, lofty, unanswerable question here is why, if we're trying to protect people from a dangerous activity with big risks, are we not holding tobacco companies liable if someone dies from lung cancer, an amusement park for a case of whiplash? Because of carefully written laws. It's a stretch, I know, but it's been tugging at the back of my mind. (And I’m not alone; CNN ran an opinion piece just this week about the same issue.)
Here's hoping the resorts can take a cue from Vin and outmaneuver this one.
Editor’s note: On January 23 GrindTV was saddened to learn that prominent skier Dave Rosenbarger had died in an avalanche in Italy. Details are only just emerging, but Powder magazine reported that he was “skiing off the Helbronner on the Italian side of Mont Blanc.” He had recently been profiled in the February issue of Powder magazine, and was also included in a recent Powder digital feature. For more on this tragic accident, check back periodically with Powder magazine.
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