This suit is forcing us to ask whether Colorado's venerable Ski Safety Act of 1979 should be amended to further "protect" skiers. But to protect us against what? Ourselves? The mountains?
Designed to articulate the responsibilities of skiers and resort operators, the Ski Safety Act requires that resorts maintain sign systems to warn skiers of dangers other than those inherent in the sport. For example, a red exclamation point in a yellow triangle marks danger areas like cliffs or roads. Even natural obstacles must be marked. Failure to do so constitutes negligence.
This stringent law has withstood many tests in an increasingly litigious society. The multibillion dollar ski industry might seem like a ripe plum, were it not for the fact that the Act limits settlements to $250,000.
But no one knows whether it will withstand the tragedy that befell Christopher Gifford, an expert skier who aspired to join Vail's Ski Patrol. One January day in 1997, the 23-year-old rode the lifts early up to Morningside Ridge in Vail's advanced back bowls. The Ski Patrol had stuck a crossed pair of bamboo poles (but not a yellow triangle) at the top of a natural gully filled with the kind of powder that makes Vail famous. As the young man crossed above the poles, his ski tips somehow snagged the side of the gully, sending him headfirst down into the snow. By the time witnesses dug him out, he had suffocated.
Christopher's mother, Sandra Gifford, who has a law degree, is representing herself in a wrongful death suit, after other attorneys declined the case. She says that Vail was negligent for not signing the gully. Vail says that the ravine was an inherent danger and risk of skiing, which would exempt the resort from liability.
I don't envy the jury. It will understandably sympathize with the mother's loss. But before it litigates our winter sports out from underneath us, I hope it will consider that many Americans see winter's snows as a liberating force, as a frontier-like challenge against which we define ourselves.
The most interesting and challenging winterscapes count if and only if we can freely throw ourselves into them and confront chaos, if and only if we can ski the chutes and risk the avalanches. Snow is always moving, alive, disordered. That's why we ski or snowboard.
Winter mountainscapes are one of the last refuges for freewheeling Westerners. If you've skied at the over-groomed European resorts, you know what I mean. Our Western winterscapes defy our society's desire to impose order on chaos. Coaches and commanders and now lawyers and snow cops try to bring order, but it's a managerial delusion. Their obsessions with routes and rules vainly aim to master a larger number of variables than we can ever comprehend.
As their skill levels increase, skiers and snowboarders should see their opportunity for decision-making and risk-taking grow. Given recent changes in equipment and attitudes, many more people are dying in the mountains these days. I hope that these adventurers are dying happy, doing what they love to the best of their abilities. I doubt that many of them would want a jury to blow a chilly wind over our mountain sports.
This is not to say that skiers and boarders don't have responsibilities. I applaud the verdict reached in another recent case by an all-skier jury, which convicted young Nathan Hall of criminally negligent homicide. A Vail employee and expert skier, Hall was bombing down an intermediate run, skiing out of control under extremely poor snow conditions, when he struck and killed another skier. It's an important precedent that he faced criminal charges.
But it's just as important that we who endanger only ourselves remain free to meet the challenge of the mountains.
Tom Wolf is a contributor to Writers on the Range, a service of High Country News(www.hcn.org). He lives to ski in Taos, N.M., and is the author of Ice Crusaders: A Memoir of Cold War and Cold Sport.