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Liability and litigation gain momentum in Colorado's fight for skier safety

It's Bring-a-Lawyer season in the high country.

While the nation waited in varying degrees of anxiety for a historic verdict from the Florida courts, Colorado established it's own legal precedent last month. Nathan Hall, a 21-year-old Vail lift operator and ski racer was convicted of Criminally Negligent Manslaughter for causing the death of another skier through his reckless skiing in 1997.

Not only does the case mark the first time a Colorado jury has handed down a conviction for manslaughter based on reckless skiing, it as also the first time in the United States that a skier has been held criminally responsible for a death. Civil cases have not been unusual, but the threat of jail time as opposed to simple monetary fines brings a new level of accountability to the slopes.

Hall will be sentenced Jan. 4. He could face up to six years in prison if related charges of possession of marijuana and possession of alcohol by a minor are figured in, but given a low blood-alcohol level at the time of the accident and a clean record prior to this case, a three-year sentence is more likely. He could be eligible for instant probation, avoiding jail altogether.

Colorado Attorney General Ken Salazar wasted no time reiterating the implications of the ruling: "Skiers who are reckless can expose themselves to millions of dollars in civil damages, and they can also expose themselves to long prison terms if they injure or kill someone on the slopes."


The age of accountability

On the last day of the ski season in 1997, Nathan Hall came bombing down a blue slope at Vail, getting air as he sped over a knoll, and crashing into 33-year-old Allan Cobb, who died a few minutes later from massive head injuries. Dr. Ben Galloway, testifying on the autopsy he performed, likened the injuries to those a person would sustain in being thrown from a car in a fatal crash.


In its first hearing, the case was thrown out of an Eagle Countycourt by the judge, ruling that Hall's reckless skiing did not add up to manslaughter. Judge David Lass upheld the ruling in district court, reasoning that "skiing too fast for conditions or out of control" is not likely to cause a fatal accident to another person. The Colorado Supreme Court, however, overturned the lower courts and agreed to hear the case.

The late spring conditions were described as heavy, wet snow, "like mashed potatoes," according to prosecutor John Clune. Although defense lawyers claimed that Hall was caught by surprise by the quality of the snow, the prosecution claimed that Hall ignored the poor conditions making it difficult to maintain control when he should have known better. "He was bombing down the mountain," Clune said. "He was reckless. That is why Allan isn't with us."

A 12-person jury -- all experienced skiers or snowboarders -- deliberated nearly 20 hours before handing out the guilty verdict.


The other side of the mountains

The case has gotten attention nationwide, and the reactions have been as varied as the approach people take to hitting the slopes in Colorado's national forests. The Advertiser-Tribune of Tiffin, Ohio called the case "a turn toward personal responsibility" in an editorial last month. "While many sports involve a degree of risk, the existence of risk should not give license to anyone to behave so recklessly that a mishap is likely to harm others," the editorial proclaimed. "It is a crime to recklessly harm another person with a hunting weapon and a car. A pair of skis should be treated no differently."

Near the other end of the spectrum, Tom Wolf, a writer and skier from Taos, wrote about another ski safety case in the Independent and said, "Before [the jury] litigates our winter sports out from underneath us, I hope it will consider that many Americans see winter's snows as a liberating challenge against which we define ourselves. The most interesting and challenging winterscapes count if and only if we can freely throw ourselves into them and confront chaos, if and only if we can ski the chutes and risk the avalanches . ... Whether I'm at a ski area or in the backcountry, death brushes by me every time I stand at the top of a gully."

"Killing someone recklessly is not part of skiing," Denver attorney James Chalet, a specialist in ski law, said in reference to Hall's case.

In Colorado, many of us equate a day skiing with a day in the mountains. We're not going to a resort, we're going to the high country. The ski mountains are almost entirely National Forest lands, and paying $50 for a lift ticket doesn't mean we want to be assured that rules and regulations will keep everything as it should be. They've outlawed smoking at ballparks and even created no-beer family zones, but they can't expect the mountains to be adventure free.

It's part of the Western spirit to think of something as benign as the Skier Responsibility Code as an intrusion on personal freedom. But the code -- "Always stay in control; whenever starting downhill or merging, look uphill and yield; observe signs and warnings, and keep off closed trails; know how to use the lifts safely..." -- is essentially an honor code, the laughable slopeside equivalent of "Just Say No." Even the Ski Safety Act of 1979 is part pipe dream, prohibiting the consumption of alcohol or the use of controlled substances.

I have an affinity for Wolf's feeling that "winter mountainscapes are one of the last refuges for freewheeling Westerners." While applauding the court's decision to hold Hall accountable, Wolf holds out hope that "we who endanger only ourselves remain free to meet the challenge of the mountains."


The thrill is gone

Cobb's death in 1997 came before a heightened awareness of skier safety, brought about largely as a result of high profile deaths that followed shortly after his. Michael Kennedy and Sonny Bono both lost their lives in subsequent single-skier accidents, and the awareness of skier safety has increased dramatically since then.

"It's public awareness of ski-snowboarding related-accidents, not the injury rate, that's on the rise," according to Tim White, Education Director for the National Ski Area Association (NSAA). Statistics show there is one death for every million snowriders, and according to White the number of deaths is half what it was in the '70s. Over the last two seasons, the number of annual deaths dropped from 39 to 30 nationally.

Although NSAA reports that most of those deaths are caused by collisions with fixed objects, Colorado resorts are nevertheless putting a stricter face on their safety policies, threatening violators with the loss of their season passes. Several mountains have set up speed patrols on their slopes, making Big Brother's presence known. But subpar snow years have kept attendance stagnant, and resorts are reluctant to do anything that suggest the thrill is gone from the mountains.

"We recognize there are inherent risks to skiing and snowboarding," White said. "Our concern is that the sports are being portrayed as more dangerous than they really are."

Perhaps what no one wants to say out loud is that despite a common-sense approach to safety, nobody is clamoring for a crack-down on the slopes. This kind of litigious attitude is what keeps many of us away from Vail. That's what you expect in a world with an E-ticket entry fee attached. The $50/day ski crowd is not the same cross section we find hiking or cross-country skiing far from the maddening crowd. The elite clientele of downhill skiing are not always accustomed to personal accountability.

Maybe a heightened atmosphere of surveillance will let us all feel a little more daredevilish, a little more confident that, even on the slick, slanted blues, we are always at risk. Some of us need that two-lane highway buzz of tension that keeps the ride from ever being boring, keeping us acutely alert.

Despite our best wishes, the slopes are not terra incognito. They're not the edge of the wilderness where chaos rules -- not the groomed, trimmed, and legislated land leased as slopes. If you've come for chaos, you want the other side of the mountains.

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