Editor’s Note:
The following story comes from The Avalanche Review (TAR). “The Canyons Avalanche Trial” was first published in 2014 and used with permission.
First, a few notes about The Avalanche Review: TAR is the periodical published by the American Avalanche Association—a non-profit established to promote best practices, education resources, and better communication regarding avalanches. TAR is a subscription-based journal, and it is well worth it. The material is accessible to the basic backcountry enthusiast. Additionally, their website (linked above) offers a menu of free articles and resources to make us all better informed. Good people run TAR, which remains an excellent community resource.
Second, “The Canyons Avalanche Trial” caught our attention. Widely reported in the mainstream press on January 10 was the fatal inbounds avalanche at Palisades Tahoe. The incident raises many questions. The least continues to be how skiers/riders perceive avalanche risk while in-bounds coupled with the actual risk of in-bounds avalanches when mitigation, closure, and opening are part of the safety protocol. Some stakeholders are discussing the possibility of on-piste skiers wearing transceivers and carrying some avalanche safety gear to ski avalanche terrain while resort skiing.
The idea of slack or side country is nonsense. Once you travel out of bounds, you are in the backcountry.
All this is to say that we will likely see future litigation regarding the January 10 incident. Rather than jump to any conclusions, and with the understanding that each incident is unique, we thought revisiting the 2007 in-bounds avalanche at The Canyons Resort in Park City, Utah, still offers some lessons about risk-taking, avalanche mitigation, and personal responsibility.
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On December 23, 2007, there was an inbounds avalanche at The Canyons Resort in Park City, Utah. The avalanche occurred in Red Pine Chute, near the top of the 9990 chairlift. Four people were caught,with one totally buried. The twelve-year-old boy who was buried was quickly found with a probe, but was not breathing and had no pulse when he was recovered. He responded to CPR, and began breathing on his own prior to transport. Tragically,Jesse Williams, a 32-year-old skier from Grand Junction, Colorado, died on the scene from trauma. The Williams family sued The Canyons Resort for negligence, and the resulting trial took place inPark City, Utah, in November of 2013. This was the first fatal avalanche accident to result in a jury trial in this country since the Alpine Meadows avalanche trial in 1984.
The 2007/08 season started out with below-normal snowfall along the Park City Ridgeline, resulting in a weak, shallow snow pack throughout the area. From December 7-22, The Canyons Resort received approximately 60” of new snow, and 4.6” of SWE. This resulted in numerous avalanches throughout the resort in the days prior to the accident, but only one avalanche in the 9990 area was observed to have failed on the weak faceted snow that had developed during the fall. The size of that event prompted the Canyons Ski Patrol to use more explosives than normal in adjacent paths on the morning of 12/22/07, including Red Pine Chute, but results were limited to shallow, soft-slab avalanches. The entire area, including Red Pine Chute was opened to the public on the afternoon of December 22. This was the first time the north side of 9990 had been open to the public that season.
Image first published in VOL. 33, NO. 1, SEPTEMBER 2014 of The Avalanche Review. Photo: Jake Hutchinson
Image first published in VOL. 33, NO. 1, SEPTEMBER 2014 of The Avalanche Review. Photo: Jake Hutchinson
Image first published in VOL. 33, NO. 1, SEPTEMBER 2014 of The Avalanche Review.
The Plaintiff’s attorneys based their case on the idea that the area was unsafe, and that the Canyons Resort was aware of this, because of weak snowpack conditions, and the fact that a large avalanche, similar to the event that resulted in the death of Jesse Williams, had occurred in an adjacent area on the previous day, and that The Canyons had not taken the proper steps to make the area safe prior to opening. This trial was of considerable importance to the ski industry, as for some time an industry goal was to have avalanches considered to be one of the inherent risks of skiing. It also challenged the widely held beliefs that the results of explosives testing provides an accurate assessment of snowpack stability, and that those results can and should be used in determining whether to open avalanche-prone terrain to the public.
Snowpack analysis is one of the cornerstones of avalanche forecasting, and to not have an intimate understanding of snowpack conditions in one’s area of responsibility is unthinkable. But it is reasonably safe to say that if ski areas throughout North America relied solely on snow pit observations to determine whether or not to open terrain, many resorts would keep much of their areas closed much of the time. But this is not the case. Large amounts of terrain are safely opened to the public every ski season, often when weak layers are present in the snowpack. This is possible because of the systematic and proper use of explosives to test snowpack stability. There are more than 100,000 explosive charges used annually to test snowpack stability in US ski areas. There may be as many as 10,000 avalanches that occur annually in those ski areas, most of which are the result of explosive tests. This means that of the time explosives fail to produce an avalanche. The lack of avalanche activity suggests the area is “reasonably safe” and it is then usually opened to the public. Perhaps 10 times a year, a slope that has been tested with explosives, with negative results, subsequently avalanches in an event triggered by a skier or snowboarder. One can determine from this that explosives work most of the time (99.99%), as an adequate test of snowpack stability as it relates to the additional load of a skier. But they don’t work 100% of the time. The Expert Witness for the Plaintiff contended that the lack of avalanche activity from explosives tests in an area known to have a weak snowpack, along with the deep-slab avalanche that occurred on an adjacent slope the previous day, required that the area remain closed until an avalanche could be initiated, or until snowpack analysis suggested that stability had improved naturally. Would this approach further reduce the small number of “postcontrol avalanches” that occur? Could it completely eliminate them? Could ski areas operate under these restrictions? And, would the skiing public accept this extremely conservative approach?
It is difficult to candidly discuss the “art/science” of z who has watched a courtroom scene on TV understands the relentless questioning by plaintiff’s attorneys, looking for an opportunity to make a point, to catch a witness off guard, to highlight a vague assumption, or to uncover inconsistencies on the part of those testifying. By doing so they hope to convince the jury that mistakes were made, or that someone was at fault. Unfortunately, there are few disciplines that have more inconsistencies, assumptions and vagaries than avalanche forecasting and control. Because of these concerns, one has to be very careful what one says while being questioned, and that means that sometimes you can’t accurately express what you really mean or think. You can’t express any doubt that those you are representing could or should have done anything other than what they did, and you can’t admit to the fact that some degree of uncertainty accompanies many of the decisions avalanche workers regularly have to make.
The defense built their case around the idea that the ski area had done all it could to prevent this accident from happening. They observed snowpack structure, they monitored the weather, they carried out thorough explosives testing, using more charges than usual in response to snowpack conditions and to the fact that a large avalanche had occurred on an adjacent slope, and they posted warnings of potential hazards. The defense also highlighted the fact that the area had been open the previous day, without incident. But their case was complicated by the fact that no preseason, boot-packing had been carried out in the Red Pine Chute area (The Canyons Snow Safety Plan stated that “ski and/or boot compacting of starting zones is done as soon as snow accumulates on the ground”) and, that there had been a limited use of “air-blasts” in the Red Pine Chute area prior to opening.
It is not difficult to criticize or to find fault with efforts taken to prevent an avalanche accident, after the accident has occurred. It’s easy to point out that there is always something more that could have been done; one more shot, one more ski-cut, one more day of leaving the area closed. Avalanche workers don’t have the benefit of seeing into the future. Expert witnesses have the benefit of looking back at the past. On the other hand, avalanche professionals must do everything necessary and reasonable to prevent tragic events such as this from happening. But the unfortunate truth is that postcontrol avalanches cannot be completely eliminated. The job of ski area avalanche workers is to determine when it is reasonable to open an area to the public, to use accepted industry standards to make those determinations, and when it is felt that all has been done that can or should be done, the area is opened. Are any of us involved in difficult decisions of this type ever 100% certain that a post-control avalanche will not occur?
Our collective understanding of snow and avalanches is not what we wish it could be. But is it enough to allow us to decide when the public can access steep, potentially dangerous terrain that we have tried to make “safe?” The public demands powder skiing in avalanche-prone areas, but what is their understanding of the small but residual risk that cannot be eliminated? What is their understanding of the uncertainty that may have surrounded the decision that allowed them the opportunity to experience the thrills they are seeking?
After eight days of testimony from ski area employees, friends and family of the deceased, and expert witnesses, it took the jury only 45 minutes to decide the case in favor of The Canyons Resort. Jury members concluded that the ski area had taken reasonable measures to prevent this accident from occurring, and that they had adequately warned the public of the risks of skiing in steep, avalanche-prone terrain. The jury evidently felt that avalanches are one of the Inherent Risks of Skiing, and are not 100% preventable, in spite of the industry’s best efforts. It is quite possible that this case will set a precedent for lawsuits of this nature in the future.
What can we take away from all this? For one, we know that it is difficult to convey the nuances and complexities of avalanche forecasting and control to a judge and jury, especially under cross examination, but that it can be done. Another more important fact, and something that all avalanche workers already understood, is that skiing can be a dangerous sport. Avalanches are difficult to predict, and that in spite of our best efforts, avalanche-prone terrain in developed ski areas cannot be made 100% safe. Post-Control avalanches will continue to plague us, avalanche workers will continue to be caught, injured, or worse, while doing avalanche control work, and occasionally members of the public will also be injured or perhaps killed, in areas that others had considered to be “reasonably safe.” It is essential that we be the best we can be at our jobs, we need to stay focused, to spend most of our time on the snow, in all kinds of weather, and to be very thorough in our avalanche mitigation efforts. We need to be aware of the conditions that have led to other post-control avalanches, and do what is necessary to help prevent as many of them as we can. And it’s important that if you include something in your operations or safety plan, you make sure that it gets done. But it’s also important for the skiing public to consider the fact that skiing in avalanche terrain can be hazardous, in spite of the fact that it’s taking place within the boundaries of a developed ski area. Skiing fast, or hucking off cliffs are perceptible hazards, ones that pose obvious risks which we can choose to accept or not. In skiing avalanche terrain, most of the skiing public probably doesn’t consider what the underlying snowpack layers are, or what the avalanche activity has been on surrounding slopes, but maybe they should. Would this increased awareness have prevented this tragic accident, who knows? Jesse Williams was a part-time patroller at a resort in Colorado, maybe he was thinking of these things, but the accident happened anyway.
This trial, like the Alpine Meadows trial, highlighted the difficulties of dealing with avalanches in developed ski areas. In both cases, the defense prevailed. But in spite of the courtroom victories, I imagine that avalanche workers from both resorts feel that in some ways it was a loss. In both cases, the avalanche, their adversary, won, and their goal of making the mountain safe was not realized. Perhaps there is some comfort in knowing that if we try to do the best we can, that those efforts may be acknowledged. But we will continue, at times to be bested. We must do our best to prevent avalanche accidents from happening, but be prepared to defend our actions, when the next tragic accident occurs.