Joined: 07 Dec 2004 Posts: 3528 Location: Golden CO
Posted: Wed Jul 27, 2011 2:26 pm Post subject: Widow: Resort must pay...
Widow: Resort must pay
Ski area says state law bars Nodine’s wrongful death lawsuit.
By Sarah A. Reese, Jackson Hole, Wyo.
Date: July 27, 2011
A Texas woman says Jackson Hole Mountain Resort’s decision to open ski runs the day her husband was killed in an avalanche was so reckless that a jury should decide the case.
The resort counters that 9th District Judge Timothy Day should rule against Christine Nodine and her complaint because the Wyoming Recreation Safety Act bars her lawsuit. Her husband signed a waiver when he bought a season pass that releases the resort from any liability, the company also contends.
Attorneys for the resort and Nodine are scheduled to present arguments on the resort’s motion for summary judgment Thursday morning in district court. Summary judgment is granted when a judge determines no factual issues remain for a jury to decide.
Christine Nodine sued the resort in district court in December, after U.S. District Court Judge Nancy Freudenthal dismissed a similar lawsuit in her federal court. Freudenthal decided the liability release agreement that David Nodine signed required his wife to bring her claims in state court.
David Nodine, 31, died Dec. 27, 2008, when an in-bounds avalanche on a ski run known unofficially as Toilet Bowl pulled him down 675 feet and buried him under 7 feet of snow, court records say. He was survived by his wife and unborn child, records say.
Christine Nodine’s attorneys say in a brief filed June 3 that the resort was motived by profit when staff members made a decision to open the upper mountain despite “unacceptably dangerous” conditions. After an avalanche on the Toilet Bowl run partially buried a snowboarder earlier in the day, the resort could have closed the run but chose not to, the brief says.
“The egregious facts of this case clearly present fact issues precluding summary judgement,” Nodine’s brief says.
The resort says in a brief filed April 29 that Christine Nodine’s claims should be dismissed because she hasn’t been properly appointed as a representative for the wrongful death lawsuit. Nodine has asked Day to appoint her.
Jim Lubing, an attorney for the resort, said Tuesday that he can’t comment on pending litigation.
An attorney for Nodine did not return a call seeking comment Tuesday.
When he bought a season pass less than a week before his death, David Nodine signed an agreement saying avalanches are an “inherent risk” of skiing at the resort and that he would accept those risks, the resort says.
“Under the Wyoming Recreation Safety Act, a recreational participant has no claim for injuries or damages against a recreational provider when the injuries or damages were the result of an inherent risk of the chosen sport or recreational opportunity,” the resort’s brief says.
Christine Nodine says her husband did not have access to the resort’s avalanche forecasts and had to rely on resort staff to make decisions about what runs were safe to ski.
“In Wyoming, deciding whether a particular set of circumstances is an inherent risk is generally a question of fact for a jury,” Nodine’s brief says.
She says the liability release is unenforceable because of the resort’s “willful and wanton misconduct,” which is an act done with reckless disregard of consequences and under circumstances that a reasonable person knows would likely result in harm to another.
“In Wyoming, willful and wanton misconduct is an issue for the jury,” Nodine’s brief says.
The resort’s employees told Nodine’s attorneys in depositions that they had determined the avalanche risk the day David Nodine died was considerable, which means human-triggered avalanches were probable, the brief says.
The purpose of avalanche control — using explosives on ski slopes — is to confirm a forecast, the brief says. Ski patrollers said they were “disappointed” when explosives did not trigger a controlled avalanche on the Toilet Bowl run the day David Nodine died, the brief says.
“When the avalanche forecast is not confirmed by avalanche control efforts and the time bomb is still ticking, [expert witness Dick] Penniman explains that the reasonable and prudent course of action is to err on the side of safety and keep the run closed,” the brief says.
Jake Elkins, head of ski patrol, made the decision to open the mountain, the brief says. The day before, Elkins had three conversations with resort president Jerry Blann about opening the mountain, the brief says. Much of the mountain had been closed to public skiing the two days before the incident.
“When asked if he ever felt pressure from his boss (because of the costs and loss of revenue from the runs being closed) to go ahead and open the mountain, Jake Elkins admitted that he did feel this pressure from Jerry Blann,” the brief says. “In fact, the afternoon before Nodine was killed, the president of JHMR, Jerry Blann, asked Mr. Elkins, the head of ski patrol: ‘Can we get that f------ lift open this afternoon?’ Not surprisingly, Mr. Elkins made the decision to open the lift in question the following morning, and David Nodine was killed.”
Much of the mountain had been closed because of heavy snow on Christmas and Boxing Day, the two days before the incident.
In an interview in December 2008, Blann rejected notions that resort management might have pressured ski patrol to open runs the day Nodine was killed.
“There was no pressure,” he said at the time. Ski patrol can ask for a second go-round with their bombs without management interference if they feel things aren’t safe, he said.
“There’s never a question when someone says, ‘We’re going to take another lap on the tram,’ ” Blann said at the time.
The resort’s alleged negligence was compounded by its failure to close the upper mountain after two avalanches in the hour before David Nodine’s death, Christine Nodine says. A snowboarder reported being buried in 5 to 6 feet of snow on the Toilet Bowl run, and ski patrol documented another slide on the nearby Alta Chutes minutes later, Nodine’s brief says.
A ski patroller told Nodine’s attorneys the Toilet Bowl run could have been closed in 10 minutes or less but wasn’t, the brief says. About 40 minutes after the slide involving the snowboarder run, David Nodine was killed in a second avalanche on the run, the brief says.
The resort says ski patrollers had determined the Toilet Bowl run and other portions of the upper mountain were safe before opening them.
Skier activity “apparently triggered snow movement in two confined areas” in the hour before Nodine’s death, the resort’s brief says.
However, the resort names only “the Amphitheater Rocks area near the Toilet Bowl” run as one of those areas.
“The Toilet Bowl ski run was open for almost four hours and had been skied by perhaps hundreds of skiers before the avalanche that involved Nodine,” the resort’s brief says.
David Nodine was an experience backcountry skier, had an avalanche certification and was wearing a transceiver the day of the accident, the resort says.
Christine Nodine’s allegations of willful and wanton misconduct don’t affect the validity of the release agreement her husband signed, the resort says.
“Although the plaintiff here questions and criticizes the choices and actions made and taken by JHMR personal, the material facts reveal that extensive experience, training and specific efforts were applied to address snowpack conditions well in advance of, and right up to the actual moment that the avalanche started that resulted in David Nodine’s death,” the resort’s brief says. “On these material facts, [the resort] is entitled to summary judgment. Allowing the issue of willful and wanton misconduct to go to a jury would contravene the Wyoming Supreme Court’s holding in [a previous case.]” _________________ "Its all fun and games until someone gets hurt, then its a sport."
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