Steamboat Springs During the second and final day of an evidentiary hearing for a lawsuit about the death of Cooper Larsh while skiing March 17, 2011, at Howelsen Hill Ski Area, the defense called two witnesses, both sides made closing arguments and a gulf remained between the competing sets of facts.
Because the city of Steamboat Springs, which owns and operates Howelsen Hill, enjoys sovereign immunity under the Colorado Governmental Immunity Act from cases that “lie in tort or could lie in tort,” a “dangerous condition” must be established before the case proceeds to negligence or liability under another act, such as the Colorado Skier Safety Act.
What Maureen Ryan, Larsh’s mother and the plaintiff in the lawsuit, must prove is that the circumstances surrounding her son’s death meet the four-part test for a “dangerous condition” of a public facility.
The components of the four-part test are:
1. The injury occurred as a result of the physical condition of a public facility or use thereof.
2. The physical condition or use thereof constitutes an unreasonable risk to the health or safety of the public.
3. The unreasonable risk was known to exist or should have been known to exist in the exercise of reasonable care.
4. The condition is proximately caused by a negligent act or omission of the public entity in constructing or maintaining such facility.
The plaintiff alleges that any reasonable skier could have reached the Alpine slide area — where Larsh eventually died — and assumed it was open ski terrain.
Both parties acknowledge there were no ropes or explicit signage at the top of the Alpine slide.
According to the plaintiffs, the lack of signs or ropes showed a failure on the city's part to properly close the area per the Colorado Ski Safety Act.
Ryan and her attorneys also argued that the Alpine slide area’s omission from the trail map available at the time would lead skiers to assume that area was part of the Town View ski trail.
The failure of the ski area to properly communicate the closure of the Alpine slide area, according to the plaintiff, created a dangerous condition for skiers who entered the area.
In addition to disputing the application of the Colorado Skier Safety Act when determining a waiver from the Colorado Governmental Immunity Act, the defense stated that the slide area was not a run March 17, 2011, and was then subject to a different standard of closure than skiable trails or slopes.
Tim Fletcher, safety coordinator for Howelsen Hill Ski Area and a witness for the defense, named other ski areas that did not mark permanently closed areas on their respective trail maps.
Fletcher also testified that there was a significant grade difference between the top of the Alpine slide area and where a groomed trail goes past it to runs such as Town View, Wren’s Run and Long John. In boomer snow years such as 2010-11, he said, that difference grows because of the accumulation of ungroomed snow at the top of the Alpine slide. A skier would have to hike, sidestep or wishbone up an incline to enter the area, Fletcher said.
Larry Heywood, a witness for the plaintiff, said Thursday he was able to coast from the top of the Poma lift into the Alpine slide area when he visited March 9, 2012. The snow year of 2011-12 was significantly lower than the previous, affecting the grade difference between the slide area and the groomed trail.
In the 11 years between the construction of the Alpine slide and Larsh’s death, there have been about 1,100 winter season days and more than 100,000 skier visits to the Howelsen Hill Ski Area, according to witness Craig Robinson, who is the city’s open space and Howelsen Hill facilities supervisor.
In that time, according to witnesses who worked for and patrolled Howelsen, there were no reported injuries in the Alpine slide area. Only one other track was remembered to have been seen in the area.
On March 17, 2011, there were four or five skiers at Howelsen who were not racing on the face, according to testimony. Of those, three found their way into the Alpine slide area.
In closing arguments Friday, the defense sought to restrict the definition of the term "maintenance" for the determination of a waiver to the strict language in the Governmental Immunity Act dealing with maintaining a facility at the standard it was first constructed. The closing of terrain and ropes and signage fall under the operation of a ski area, the defense asserted.
The plaintiff argued that the city should have known the area presented an unreasonable risk. It’s not for locals familiar with Howelsen Hill that standards regarding closures are observed, the plaintiff asserted, but for skiers such as Larsh who don’t have prior knowledge of the area and depend on ski area signage and maps.
Judge Shelley Hill will now issue an opinion about whether the "dangerous condition" test was met and sovereign immunity is waived, thereby allowing the lawsuit against the city to move forward.
To reach Michael Schrantz, call 970-871-4206 or email mschrantz@SteamboatToday.com