Colorado laws relevant to Larsh case
■ Dangerous condition for Colorado Governmental Immunity Act
“Dangerous condition” means a “physical condition of a facility or the use thereof which constitutes an unreasonable risk to the health or safety of the public, which is known to exist or which in the exercise of reasonable care should have been known to exist and which condition is proximately caused by the negligent act or omission of the public entity in constructing or maintaining such facility.”
— CRS 24-10-103(1) Source: Denver Bar Association
■ Colorado Ski Safety Act
“Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collision with natural objects, man-made objects or other skiers; variations in the terrain; and the failure of the skiers to ski within their own abilities.”
— CRS 33-44-107(8) Source: Colorado Judicial Branch
Municipal ski areas in Colorado
■ Chapman Hill, Durango
■ Cranor Hill, Gunnison
■ Howelsen Hill, Steamboat
■ Kendall Mountain, Silverton
■ Lake City Ski Hill, Lake City
■ Lee’s Hill, Ouray
Maureen Ryan described her son, Cooper Larsh, as constantly on the phone. He was prompt with text messages and always responded to her, she said during a hearing in January.
So when he missed the time he was supposed to meet her March 17, 2011, and she was not able to get ahold of him, it was clear something was wrong.
Larsh suffocated after falling headfirst into the snow while skiing that day at the city-owned Howelsen Hill Ski Area, and Ryan is suing the city of Steamboat Springs for the wrongful death of her son.
City-owned ski hills aren’t plentiful in Colorado, where large resorts dominate skier visits, and the special circumstances that come with a municipal ski area have made the lawsuit stemming from Larsh’s death an unusual case.
Before even running up against the Colorado Ski Safety Act, which requires skiers to assume responsibility for injuries related to dangers inherent in the sport, governmental immunity afforded to municipalities in the state must be addressed.
The Colorado Governmental Immunity Act protects government entities from tort lawsuits, a civil wrong that causes another harm, with a few exceptions, including the “dangerous condition” of a public facility.
Fourteenth Judicial District Judge Shelley Hill determined in January that the circumstances that lead to Larsh’s death constituted a “dangerous condition” because he died after entering a closed area of Howelsen Hill through a section that was not roped off.
The ruling waived the city’s immunity, and the suit now sits at the Colorado Court of Appeals.
Lawsuit an anomaly
There have been other high-profile skier death lawsuits recently.
In January 2012, 13-year-old Taft Conlin was killed in an inbounds avalanche at Vail Mountain, and a judge ruled that is not an inherent risk of skiing.
Also in January 2012, Christopher Norris, 28, was killed in an inbounds avalanche at Winter Park Resort. The judge in that case reached a different conclusion, and it now sits at the Colorado Court of Appeals.
These two cases are challenging the resorts under the Ski Safety Act, but the Larsh case centers around the Governmental Immunity Act.
“Merely because Howelsen Hill happens to be owned by the city of Steamboat Springs ... this case has been a surreal experience of financial attrition,” Ryan said before the state Senate Judiciary Committee earlier this year.
Ryan, who is an attorney and a law professor, said the experience of challenging Howelsen’s extra layer of immunity was unexpected.
“Nothing in my background ... prepared me for my fall down the rabbit hole that is the Colorado Governmental Immunity Act,” she said before the Judiciary Committee. “What I have found is that the ability of a private person to sue a Colorado public entity for even the most egregious negligence is a nearly illusory concept.”
Because ski hills owned by municipalities in Colorado are rare, the circumstance Ryan now finds herself in is without much precedent.
Of the few city-owned ski areas in Colorado, none of the operators knew of a claim related to a skier death being filed against their hills. Those who were able to provide insurance information reported no extra coverage beyond the city’s standard policy.
The city of Steamboat Springs pays $23,000 per year for insurance specifically for Howelsen Hill that is in addition to its general policy through the Colorado Intergovernmental Risk Sharing Agency.
Ski areas’ handling of injuries and deaths on their premises has come under fire from plaintiffs’ attorneys and a recent series by The Denver Post.
“As far as ski areas investigating what goes on as far as injuries on their mountains, they’re very poor,” said Steamboat Springs-based attorney Jim Heckbert, who is representing the families of Taft and Norris in the Vail and Winter Park cases.
“Many of the times, when I’m suing the ski area, they don’t investigate whether their employees have violated the Ski Safety Act or the ski area’s own safety standards.”
Heckbert, of Burg Simpson law office, said ski areas look to see if it’s the fault of the skiers but not of their employees.
The protection afforded to ski areas by the Ski Safety Act and waivers signed when purchasing lift tickets and season passes already is quite strong, and Heckbert said the act breeds irresponsibility on the part of ski area operators.
Jim Moss, an attorney and author of the blog www.recreation-law.com, said ski patrollers do what they’re trained and expected to do: file a report for their employers.
Ski patrollers assist those who’ve been injured in an accident and record some factual information, but investigations are left to law enforcement.
“Generally, if the state is going to get involved, it’s going to be in a death case,” Heckbert said.
The Steamboat Springs Police Department was in the position of investigating the city on city-owned property.
Implying that would be a conflict of interest is the same as saying police should recuse themselves from investigating any incident on city-owned property, according to Moss. A city might go to an outside investigator if there’s too much conflict of interest, Moss said, but “it’s got to be pretty blatant.”
Heckbert said that the situation at Howelsen is more analogous to getting into a car crash with an on-duty police officer, where an outside auditor could be brought in to avoid the police investigating their own agency.
Public Safety Director Joel Rae declined to comment for this article, citing the ongoing Larsh lawsuit.
Further complicating matters, Heckbert said that in two previous cases he has been involved with against Vail, investigating officials have testified that the resort was not cooperative.
Moss has written that those reports are private property with sensitive information and that resorts are within their rights to guard them.
Another criticism of law enforcement investigations of skier deaths is a lack of specialized training.
“You’ve got almost 5 million skier days a season, and yet you probably have one or two criminal investigations a year,” Moss said.
And for those criminal investigations, he said, it might not be viable to find or create special training for law enforcement officers who might be tasked with ski investigations.
“Where are your resources?” Moss said. “What is the special training?”
The city of Steamboat Springs now is challenging in the Court of Appeals Hill’s ruling in the Larsh case, and if it wins, Ryan would be required by the Governmental Immunity Act to repay attorneys fees to the city.
If Ryan clears the hurdle of the city’s appeal and wins a challenge under the Ski Safety Act, any potential damages would be limited to $150,000 under the Governmental Immunity Act.
Ryan told the Judiciary Committee she already had paid $30,000 in legal fees and costs without even accounting for her lawyers’ time.
“Some people wonder why I even sued, given the fact that pursuing a cause of action will likely cost more than the damages cap,” Ryan said to the Judiciary Committee. “First, I realized that this was the only way I would find out the truth about Cooper’s death. Second, I thought the case was important for the safety of other skiers. And finally, even though Cooper is dead, I still owe him a duty as his mother to seek justice for what happened to him.”
Less clear are the city’s reasons (or those of its insurance company) for continuing to fight the lawsuit on immunity charges when the costs already could have outpaced the damages cap.
One explanation is that the worth of upholding the city’s immunity and setting legal precedent is more valuable than the dollar amount of settling.
“You always have to look at today and the next 20 years,” Moss said about future considerations and the potential for precedent.
Moss, who also has done risk management for ski areas, said it would be hard to gauge whether losing the case would result in higher insurance premiums for Howelsen Hill and the city of Steamboat Springs.
He compared an insurance pool to a literal pool, with every claim spilling a little water over the sides. Insurance companies are prepared to pay claims, he said, but it’s the size of the claim relative to the pool that can move the needle.
“So over time, yes, every claim will have an effect,” Moss said. “Can you say this claim will have an effect? Who knows. As big as skiing is to Colorado, it is a relatively small pool, so the chance of this claim, no matter what the size, having an effect is greater.”
As for the city’s immunity, Moss said the potential is there for a case such as this to open the city up to more litigation.
“I have always thought that Colorado’s governmental immunity was overprotective,” he said. “It does an excellent job of keeping the cities and state of Colorado from paying out an awful lot of money.”
For the same reasons, Heckbert said he has been a critic of the immunity afforded to all ski areas through the Ski Safety Act.
“I think the ski areas have become lazy,” Heckbert said. “You just don’t pay attention to what you’re doing. There’s a great social aspect to injury lawsuits. They really have become lax in what they’re doing.”
Through her lawsuit, Ryan has brought investigations into her son’s death to light, and ropes, signage and the trail map at Howelsen Hill have changed since 2011. What remains of her reasons for suing the city is justice for her son. Her chance to challenge Howelsen Hill under the same laws as any other ski area still hangs in the balance.
“Every time I walk into a courtroom, I think, ‘Why is it they’re not paying me and not resolving this case?’” Heckbert said. “I’ve finally given up trying to figure out what insurance companies are doing.”