Widow: Resort must pay......

[Hacksaw]

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.

Contract dispute

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.

Other avalanches

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.]”






www.jhnewsandguide.com
307-733-2047
© 2011

[skifishbum]

VIBES and condolances to the widow for her loss and deluied desire for monetary compensation due to the actions of mother nature.
hell vibes for me for being a heartless asshole who subscibes to the "people suing ski resorts should be shot" mantra

[moose pit]

VIBES and condolances to the widow for her loss and deluied desire for monetary compensation due to the actions of mother nature.
hell vibes for me for being a heartless asshole who subscibes to the "people suing ski resorts should be shot" mantra

In agreement with this ^^.

Litigation law needs to be beat back into reality... then abolished, let criminal negligence be punished as a crime and stupidity be punishment for the stupid.

[rideit]

"David Nodine was an experience backcountry skier, had an avalanche certification and was wearing a transceiver the day of the accident, the resort says."

This will be critical to defense, if he was 'certified', then he would have been certifiably capable in assessing snow conditions, terrain selection, changing snow dynamics, and ultimately personal risk exposure.

In this litigious culture, I wouldn't be surprised if whoever taught his Avie I or II to course ends up as a witness, or even defendant.

[PNWbrit]

This seems a very different type of law suit from the usual - guy who skis into a tree and his estate claims it as an unmarked hazard. Or say the woman who sued Baker over the snow sliding off a roof.

A blanket restriction on suing a corporation (even if it's a beloved ski area operator) for willful and wanton misconduct (even if this wasn't - which is what a court will prove or otherwise) is never a good thing.

[skifishbum]

^^^^ I'd agree w/ that in a case where true criminal negligence was involved like knowingly opperateing an unsafe lift or leaving a bunch of hand charges in the park or sumthin stupid like that but not acts of mother nature like failure of the snowpack to respond predictably every time to time proven avvy control measures.

[PNWbrit]

^^^^ I'd agree w/ that in a case where true criminal negligence was involved like knowingly opperateing an unsafe lift or leaving a bunch of hand charges in the park or sumthin stupid like that but not acts of mother nature like failure of the snowpack to respond predictably every time to time proven avvy control measures.

So it would be impossible for a ski area corp to ever make a mistake and open a still clearly dangerous area - even if you had evidence of management over ruling patrol's advice/recommendations. I'm not saying this is what happened in this particular accident, But effectively you're stating that people should be prohibited from suing a corporation under those circumstances.

I completely understand the risk and cost of facing frivolous litigation as previously stated.

[skifishbum]

man that's a slippery slope I have the upmost respect for snow safety professionals and not a whole lot for most resort management. I think most snowsafety teams pride themselves on their ability to open terrain quickly and safely w/out pressure from management. It's not my call as to enact that, but if it is the case I'd be down with it. My wife and family know my feelings and how displeased I'd be if the bought about litigation in any similiar situation.

[PNWbrit]

man that's a slippery slope

I know. So is any blanket immunity for corps or enforcing blanket waivers of rights.

Let's also not forget that the bereaved in these situations often do not control the course of litigation. Because we frequently waive those rights when entering into contract with our health and life insurers.

I have the upmost respect for snow safety professionals

As do we all.

[bklyn]

... My wife and family know my feelings and how displeased I'd be if the bought about litigation in any similiar situation.

Although I have discussed similar issues with my family, they may not agree and what could I do about it when I'm dead?

...

Let's also not forget that the bereaved in these situations often do not control the course of litigation. Because we frequently waive those rights when entering into contract with our health and life insurers....

Plus this.

I think the fact that snow safety may have been pressured by mgmt to open terrain/lifts is going to be a big carrot for insurance companies to initiate a suit.

[skifishbum]

All good points I'm bummed as it sets a precident where the epic pow days are spent hoping patrol has enough confidence in their abilities to safely migate the dangers and open the goods outweigh the risks of being sued should something as fragile as the bonding of the snowpack in of 100% of the terrain doesn't cooperate.
I agree w/ ride it def. interesting as this wasn't a gaper on vacation, but someone who had taken avvy classes and strapped on the beacon that morning

[sftc]

For most reasonable in-bound skiers and riders this is the key to the law suit:

“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.”

That has to be one of the most loaded statements ever in ski area litigation.

[Bunion 2020]

I agree with you sftc, that is one reason why our policy pretty well prohibits us from discussing decisions to open terrain or close terrain with anyone other than the Snow Safety Dir. the Patrol Dir. and the patrollers running that route. We may discuss decisions with upper management informally but they are savy enough to never make such damning remarks.

We also have the policy that when we call an area open or closed, only the Snow Safety Dir. or the Patrol Dir. actually makes the call on the radio. Semantics but in litigation it could make a world of difference.

I would also argue that since the victim had some avalanche education and was wearing a beacon inbounds, that he was well aware of the potential hazard.

[rideit]

For most reasonable in-bound skiers and riders this is the key to the law suit:

“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.”

That has to be one of the most loaded statements ever in ski area litigation.

But did this conversation actually occur? I doubt it, opening or closing runs doesn't affect JHMR's bottom line in any way, shape or form on a mid-season powder day. As such, I wouldn't think Blann would actually give a shit.

[sftc]

But did this conversation actually occur?....

Jake Elkins said that in a deposition for the case so I would assume he was sworn to tell the truth.

If he's telling the truth, and they can prove it in court, JHMR could be potentially screwed in a juried trial, even in WY. I would assume they have other witnesses to Blann's statement on record as well.

If he's lying then he's just covering his own ass against possible civil or criminal liability and he absolutely destroyed any chance he ever had of working in the ski industry again.

Either way, as Bunion said, it's very unusual that any conversation like that would happen on, or off, the record or without complete privacy. Something is seriously amiss one way or the other if Elkins is willing to put his ass on the line like that and say those things to the plaintiff's attorney.

[sftc]

...I doubt it, opening or closing runs doesn't affect JHMR's bottom line in any way, shape or form on a mid-season powder day. As such, I wouldn't think Blann would actually give a shit.

Come on dude, Dec. 27 is far from a mid-season powder day and you know every ski resort in the country is under tremendous pressure to have 100% of it's terrain open by Christmas week.

[rideit]

oh, OK then.

I had just broken 6 ribs on Dec. 23rd, I was so whacked out on percosets, I thought it was mid March.

[sftc]

DRugs are EvIl.

[rideit]

I thought Google was Evil.

[sftc]

Google is evil, but not as EVIL as the Scurfields.

In all seriousness, I'm just bummed to see fellow ski industry employees turn on each other because it means that either JHMR seriously screwed up and/or they aren't the industry leading ski area that many of us who only get to visit Jackson have been led to believe over the years. Deserved or not, many people look at Jackson Hole as the Yankee Stadium or Pebble Beach of the ski world.

[stuckathuntermtn]

Hm, this sucks for everyone involved. Didn't the initial reports say he was in a closed area? IDK, it all comes down to whether or not someone at JHMR new it was unsafe, but opened it anyway. Granted, avalanches can occur unexpectedly, but if they new there was a good chance of one, or that one had already happened that day, there is liability on the part of JHMR. If the resort director actually overrode his safety team, he's more or less guilty of negligent homicide. (But the beauty of corporations is that no one person is ever held liability, even for the most heinous acts.)

[nickinbc]

(But the beauty of corporations is that no one person is ever held liability, even for the most heinous acts.)

I think you can bet that if a corporation is found guilty of negligent homicide someone will be found to blame and have their career ruined. Just a shame it won't be the person responsible...

[covert]

Does Dick Penniman have a history of expert testimony for people suing ski areas?

Seems like he's been around a long time.

[Tye 1on]

Does Dick Penniman have a history of expert testimony for people suing ski areas?

Seems like he's been around a long time.

Or maybe he thinks he's an expert on how ski areas can be the 'safest'? Link

[bodywhomper]

here's the thread from the incident, link