Accidental homicide lawsuit targets the Silverton Avalanche School, the backcountry guide and the airbag manufacturer
The family of a Longmont man killed in an avalanche safety course near Silverton is suing the guide, the school and the local rescue group, as well as an avalanche airbag maker and its owner a private equity firm. The lawsuit is the second avalanche-related lawsuit in recent months based on research, interviews, and reports from the Colorado Avalanche Information Center.
The complex, 68-page wrongful death lawsuit filed by Peter Marshall’s wife and daughter in Boulder County District Court accuses the Silverton Avalanche School, San Juan County Search and Rescue and Guide Zachary Lovell with a litany of neglect , Fraud, misrepresentation, negligence, and violations of consumer law related to the avalanche that killed 40-year-old Marshall on January 5, 2019 in Senior Senator Beck Basin.
The lawsuit also accuses Backcountry Access in Boulder of having manufactured a defective Float 32 avalanche airbag which, according to the lawsuit, was not inflated after Marshall “tried to deploy the balloon-like backpack”. The Colorado Avalanche Information Center’s report of the avalanche found that Marshall’s airbag backpack “was working properly, the trigger was pulled out of the packing strap, but the bag was not deployed.” It is unclear how the Marshall family concluded that Peter Marshall tried to deploy the airbag.
The Marshall family’s lawsuit also mentions Kohlberg & Company, the private equity firm that acquired Backcountry Access and its parent company K2 Sports in 2017.
“The defendants all acted willfully, willfully and recklessly, regardless of the consequences or the rights and safety of Peter Marshall or others,” says the lawsuit, in which the school, tour guide and airbag manufacturer “created essential things “Argued and unreasonable risks of serious injury and death for the participants” in the safety class. “The Defendants were grossly negligent, and that gross negligence was a cause of the injury, damage and loss suffered by Plaintiffs and Peter Marshall’s heirs.”
The Colorado Avalanche Information Center’s report of the January 5 avalanche near Red Mountain Pass included this photo looking northwest from the top of the rubble. The first avalanche triggered by the group is partially visible on the right side of the picture. The avalanche in the center of the picture is the second avalanche triggered by the group (remote release). The blue star represents where savior Peter Marshall found. (Courtesy of CAIC)
Marshall’s death was the first avalanche death of the 2018-19 season and the first of a student at Silverton Avalanche School, one of the oldest avalanche schools in the country. The slide swept six skiers down a slope, all of whom were part of a Level 2 American Institute for Avalanche Research and Education course offered by the school.
The Colorado Avalanche Information Center report, produced after multiple site visits and interviews with school staff, class students, and search and rescue volunteers, identified several errors that led to the avalanche. The three most critical errors highlighted in the center’s report indicate that the group rode a part of the avalanche together, misjudged the steepness, location and avalanche danger of the runway being used, and failed to recognize the potential for triggering avalanches on nearby slopes.
The avalanche triggered by Guide Lovell also caught Marshall and carried him to the end of the slope. A second avalanche on an adjacent slope buried Marshall several meters deep in the snow. After Lovell and the students gathered their gear, they searched for Marshall, probed the snow, and began digging for him. After 50 minutes it was revealed.
The lawsuit focuses on the errors highlighted in the avalanche report and breaks up every step the school and Lovells take that led to the avalanche.
In the 12 days prior to the crash, the Avalanche Center registered 72 avalanches in northern San Juan and identified a “significant” hazard, or level 3 on the five-level hazard scale. The avalanche danger that day included threats from a buried weak layer that could trigger sustained slab avalanches on slopes of 35 degrees west-north-south-east. The lawsuit alleges that Silverton Avalanche School staff and instructors have agreed not to travel into avalanche terrain with Level 2 students this weekend.
During these discussions, the school staff expressed “concern that the Defendant Lovell, despite the delicate snowpack and avalanche conditions, appeared inclined to travel in more complex and extensive terrain,” the lawsuit states, which fails to identify the source of these discussions.
The Marshall lawsuit names several dozen failures of both the school and Lovells. This includes allegations of negligence such as failure to communicate the avalanche forecast for the day and to allow instructors to guide students “in, through and under” avalanche terrain. The lawsuit also states that the school and Lovell “falsely represented” education and qualifications, which the Marshall family defines as a fraud in violation of the Colorado Consumer Protection Act.
The Colorado Avalanche Information Center’s report of the January 5th avalanche near Red Mountain Pass included this January 8th photo. The red circles mark CAIC employees at the scene of the accident. The avalanche on the left side of the frame was triggered in the morning to protect the search and rescue operations. (Courtesy of CAIC)
Jim Moss, a recreational law attorney who has worked with outdoor recreational companies and clients for more than 30 years, suspects Marshall signed an accident indemnity release for the Silverton Avalanche School. The allegations of fraud – that the school and the guide tricked Marshall into signing up for the course, for example by “falsely presenting” that the instructors had “deep operational experience in avalanche terrain” – circumvent the waivers, Moss said. The allegation of gross negligence can also invalidate the legality of a waiver.
Moss sees the case when he comes to court, based on the testimony of experts.
“It will be a battle of the avalanche experts and it depends on which experts impress the jury,” he said. “The boys put a lot of avalanche stuff into it.”
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(Moss also suggests the family may have difficulty recruiting these avalanche assessors because they named San Juan County Search and Rescue in the lawsuit. The school founded by the San Juan County Sheriff’s Department in the early 1960s and more than 4,000 has instructed students, is an arm of the county’s search and rescue team.)
The lawsuit notes that Backcountry Access joined the U.S. Consumer Product Safety Commission in October 2013 to recall some of its BCA float airbags from 2011 and 2012. The company said there were no injuries from the clip problem and “a limited number of warranty returns.”
The lawsuit is another recent and rare case in which a report from the Colorado Avalanche Information Center anchors legal action. In October, Summit County Attorney Bruce Brown first filed a criminal complaint and fined two snowboarders who struck an avalanche over the Eisenhower-Johnson Memorial Tunnels in March. The slide buried an access road and destroyed distant avalanche defense devices, but did not hit anyone. The two snowboarders – experienced backcountry travelers Tyler DeWitt and Evan Hannibal – gave the CAIC avalanche investigators a camera video over the head.
The March 25 avalanche deposited up to six meters of rubble on Loop Road above the west portal of the Eisenhower-Johnson Memorial Tunnel. (Provided by the Colorado Avalanche Information Center)
A motion to suppress the video filed by the snowboarders attorney in November argued that the avalanche criminal charges could create a slippery slope for skiers who have traditionally worked with the avalanche center in detailing avalanche accidents.
“The backcountry community needs to know if CAIC is not an ally in its efforts to improve avalanche best practices, but merely (works) as an extension of law enforcement,” the motion said. “This is an attitude that needs to be clarified for all parties because if CAIC is seen as a revolving door for the police and prosecutors, it will have a deterrent effect.”
Ethan Greene, director of the Colorado Avalanche Information Center, said his team of forecasters and researchers haven’t seen any people less willing to talk about avalanches this season. The center has a system that allows backcountry travelers to anonymously submit observations of conditions and avalanches, but according to Greene, these people are mostly reluctant to share their secret powder supplies.
“I think these lawsuits are really between other parties and don’t really affect us, even though they rely on part of our work,” Greene said. “I’m not sure what we can do to avoid this. I hope people don’t shy away from sharing information with us or others. Our job is to help people understand avalanches better. “
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