DISTRICT COURT, BROOMFIELD COUNTY, COLORADO 17 Descombres Drive Broomfield, CO 80020

COURT USE ONLY Plaintiff: LOUISE H. INGALLS and STEPHEN E. CONLIN, individually, and as surviving parents of TAFT M. CONLIN v. Defendant: THE VAIL CORPORATION Attorneys for The Vail Corporation:

CRAIG R. MAY (#32267) Wheeler Trigg O’Donnell LLP 370 Seventeenth Street, Suite 4500 Denver, CO 80202-5647 Telephone: 303.244.1800 Facsimile: 303.244.1879 E-Mail: may@wtotrial.com MARC A. BONORA (#42931) Legal Department VAIL RESORTS MANAGEMENT COMPANY 390 Interlocken Crescent Broomfield, CO 80021 Phone Number: 303.404.1895 FAX Number: 303.648.6569 E-mail: mbonora@vailresorts.com

Case No. 2012cv175

DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

Pursuant to C.R.C.P. 12(b)(5), The Vail Corporation (“Vail”) moves to dismiss the Complaint for failure to state a claim upon which relief can be granted. Because all of Plaintiffs’ claims fail as a matter of law, the Complaint should be dismissed.

This case arises from a tragic skiing accident that resulted in the death of a 13-year old boy, Taft Conlin. Conlin was caught in an avalanche while skiing in-bounds on a ski run on Vail Mountain. Conlin’s parents bring the present lawsuit, alleging Vail’s acts or omissions caused their son’s death. Plaintiffs’ Complaint asserts three claims: (1) Negligence, claiming Vail should

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have closed an entrance to an open portion of the Prima Cornice ski run that Conlin used, (2) Negligence Per Se, claiming Vail did not “close access” to the uphill closed area that Conlin entered, and (3) Wanton and Willful Conduct. All of these claims should be dismissed because they fail to state a claim under the 12(b)(5) standard. As set forth more fully below:

1. All claims should be dismissed because Conlin’s death resulted from an avalanche, which is one of the “the inherent dangers and risks of skiing” and such dangers and risks are not actionable under the Ski Safety Act, C.R.S. §§ 33-44-103(3.5) & 112.

2. The First and Third Claims also fail because they attempt to bring common law claims that are preempted by the Ski Safety Act. The Ski Safety Act allows for recovery only for specified violations of the Act. Plaintiffs’ First and Third Claims do not allege any such violation and are therefore barred by C.R.S. §§ 33-44-112 & 114.

3. The Second Claim – Negligence Per Se – fails to state a claim because, based on the allegations in the Complaint, Vail did not commit the Ski Safety Act violation asserted and in fact complied with C.R.S. § 33-44-107(4) in marking Upper Prima Cornice as closed.

4. The Third Claim –Wanton and Willful Conduct – also fails because Colorado does not recognize a cause of action for “wanton and willful conduct.”

CONFERRAL

In accordance with C.R.C.P. 121, § 1-15(8) undersigned counsel states that on September 20, 2012, he conferred by e-mail with Plaintiff’s counsel, James Heckbert, regarding this Motion. Plaintiff’s counsel indicated that he opposes the Motion.

FACTS AS ALLEGED IN THE COMPLAINT

Taking the factual allegations in the Complaint as true, the facts are as follows. Vail Corporation is the “ski area operator” of Vail Mountain under the Ski Safety Act. (Compl. ¶ 6.) On January 22, 2012, there were two entrance gates accessing Prima Cornice Trail on Vail Mountain. (Id. ¶ 10.) Vail closed the upper entrance gate, but the lower entrance gate was open. (Id. ¶ 11.) By closing the upper entrance, Vail intended to close that portion of Prima Cornice from the upper gate to the lower gate due to avalanche danger. (Id. ¶ 12-13.)1 In the afternoon of January 22, 2012, Taft Conlin was skiing Prima Cornice, in-bounds, and had accessed the run through the lower entrance gate. (Id. ¶ 14.) Conlin was caught in an avalanche on Prima Cornice and died. (Id. ¶¶ 15-16.) The failure to close access to the portion of Prima Cornice between the upper entrance gate and the lower entrance gate was a violation of C.R.S. 33-44-107(4),2 and this caused the death of Conlin. (Id. ¶¶ 38-39.) The Complaint makes clear that Conlin entered the run through the lower gate but had ascended up the hill and was skiing in the part of Prima

1 As indicated by their descriptions, the upper gate is “uphill” from the lower gate. 2 This provision requires operators who close a run to so indicate with signs at the

applicable entrance or by use of ropes or fences.

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Cornice between the upper and lower gates, the part of Prima Cornice that Plaintiffs allege Vail had marked closed by closing the upper gate. (Id. ¶¶ 10-14, 38-39.)

LEGAL STANDARD

In reviewing a Rule 12(b)(5) motion to dismiss, the court accepts all factual allegations in the complaint as true and views them in the light most favorable to the plaintiff. See Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011). However, the court is not required to accept as true legal conclusions that are couched as factual allegations. See id. (citing Western Innovations, Inc. v. Sonitrol Corp., 187 P.3d 1155, 1158 (Colo. App. 2008) (referencing standard in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In addition to facts alleged in the pleadings, a court may also consider “documents attached as exhibits or incorporated by reference, and matters proper for judicial notice.” Ritter, 255 P.3d at 1088. Under the modern standard, a complaint must state “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Colorado courts have followed Twombly and related federal authority. See Western Innovations, 187 P.3d at 1157-58.3 A complaint may be dismissed if the substantive law does not support the claims asserted. See Sonitrol, 187 P.3d at 1158. The motion should be granted when the plaintiff's factual allegations do not, as a matter of law, support the claim for relief. See Ritter, 255 P.3d at 1088.

ARGUMENT

I. THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE INCIDENT RESULTED FROM “INHERENT DANGERS AND RISKS” OF SKIING, FOR WHICH ACTIONS ARE BARRED UNDER THE SKI SAFETY ACT

Colorado’s Ski Safety Act was enacted to “define the rights and liabilities existing between the skier and the ski area operator.” C.R.S. § 33-44-102; see also Cuny v. Vail Associates, Inc., 902 P.2d 881, 882 (Colo. App. 1995). Among other things, the Act sets forth categories of dangers and conditions that are part of the sport of skiing for which claims against ski area operators cannot be maintained. This decision by the legislature to recognize certain categories of risks as non-actionable was made to immunize ski area operators from liability expenses arising from personal injury claims. See Stamp v. Vail Corp., 172 P.3d 437, 440-443 (2007) (recognizing the State of Colorado’s legitimate interest in the economic viability of the ski industry and finding that the purpose of the Act and its 1990 amendment was “to reduce for ski area operators the amount, unpredictability, and expense of litigation arising from skiing accidents”); Pizza v. Wolf Creek Development, 711 P.2d 671, 675 n.4 (Colo. 1985) (“The legislative history of the Ski Safety Act indicates that its drafters were motivated, in part, by a strong desire to shelter ski area operators from the rapidly escalating costs of liability insurance”). It is not disputed that Vail is a ski area operator under the statute.

3 Colorado courts Colorado courts frequently look to federal authority for guidance in

construing a similar Colorado rule of procedure. See Benton v. Adams, 56 P.3d 81, 86 (Colo. 2002); Faris v. Rothenberg, 648 P.2d 1089, 1091 n.1 (Colo. 1982) (“Federal cases and authorities interpreting the federal rule are highly persuasive”).

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The Act immunizes ski area operators from liability for injuries resulting from the inherent dangers and risks of skiing, providing “Notwithstanding any judicial decision or any other law or statute to the contrary . . . no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” C.R.S. § 33-44-112. The Act defines “Inherent dangers and risks of skiing” as:

those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

C.R.S. § 33-44-103(3.5). The scope of this protection is broad, and it even includes claims for wrongful death. See Stamp, 172 P.3d at 442 (“the statutory purpose of the [Act] leads us to construe the term ‘injured’ broadly to include death”). Significantly, the Legislature amended the Act in 2004 to expand the definition of “Inherent dangers and risks of skiing” and make clear that earlier cases attempting to narrow the scope of the definition were contrary to the Legislature’s intent. See, e.g., Kumar v. Copper Mountain, Inc., 431 Fed. Appx. 736, 738 n.1, 2011 WL 3153338 (10th Cir. 2011).

An avalanche falls squarely within the definition of an inherent danger and risk of skiing. An avalanche is comprised of many of the elements enumerated in Section 103(3.5) of the Ski Safety Act. According to the United States Forest Service Website’s Encyclopedia, an avalanche is defined as “[a] mass of snow sliding, tumbling, or flowing down an inclined surface.” See http://fsavalanche.org/Encyclopedia.aspx, accessed Sept. 18, 2012.4 Of course, “snow conditions as they exist or may change” is an obvious inherent risk and danger of skiing and is expressly enumerated in the statute. See C.R.S. § 33-44-103(3.5). Naturally, the definition of an avalanche meets this description - an avalanche by its very nature is a changing snow condition. An avalanche may also be comprised of different types of snow, including those listed: “ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow.” Id. Additionally, an avalanche can also be caused by “surface or subsurface conditions” and “variations in steepness or terrain,” which are also included in the definition of inherent risks of skiing. See id. An avalanche, by its very nature, is caused by the combination of snow condition, surface and subsurface conditions, and steepness in terrain. Even Plaintiffs’ Complaint acknowledges this, citing to reports from the Colorado Avalanche Information Center discussing

4 Similarly, Merriam Webster’s Dictionary defines an avalanche as “a large mass of

snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice.” www.merriam-webster.com/dictionary/avalanche (last visited Sept. 20, 2012).

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how new wet snow (i.e. changing snow conditions) combined with high winds (i.e. changing weather conditions) on top of the existing snowpack (i.e. snow conditions) will produce a high avalanche danger. (Compl., ¶¶ 8-9.) Similarly, Plaintiffs’ Complaint alleges that the existing and forecasted snow and weather conditions presented a risk of avalanche. (E.g. id. at ¶ 26.) As one case noted almost 30 years ago, “The snow conditions which constituted the avalanche danger were a natural occurrence and were not caused by, nor did they result from, operator’s activities.” Mannhard v. Clear Creek Skiing Corp., 682 P.2d 64, 66 (Colo. Ct. App. 1983) (emphasis added). The court also noted that “avalanche danger is a phenomenon of which the public is generally aware.” Id.

The conclusion that an avalanche is an inherent danger of skiing is very similar to the result reached in Kumar v. Copper Mountain. In that case, a skier was injured when he fell off of a cornice that formed at the intersection of several runs. The cornice, which was formed by natural accumulation of snow, was allegedly not marked. 431 Fed. Appx. at 737. The plaintiff argued that the cornice was not an inherent danger and risk of skiing and should have been marked. The Tenth Circuit disagreed, concluding that “the cornice at issue falls within the statutory definition of an inherent danger. At a minimum, it either falls within the section relating to snow conditions as they exist or change, or the provision covering variations in steepness or terrain.” Id. at 737-38.

The definition of “inherent dangers and risks of skiing” is broad, encompassing “those dangers or conditions that are part of the sport of skiing.” C.R.S. § 33-44-103(3.5). Avalanches are unquestionably a danger or condition that is part of the sport of skiing. Moreover, Section 103(3.5) does not attempt to list all of those dangers, but rather lists some of the dangers “including” various ones just discussed. The use of the word “includes” in a statute “is ordinarily used as a word of extension or enlargement.” Lyman v. Town of Bow Mar, 533 P.2d 1129, 1133 (Colo. 1975); see also Colo. Common Cause v. Meyer, 758 P.2d 153, 163-64 (Colo. 1988). Regardless of the scope, however, an avalanche quite clearly fits within the definition set forth in subsection 103(3.5).

Because the avalanche was part of the “inherent dangers and risks of skiing,” the Complaint should be dismissed. See, e.g., Johnson ex rel. Johnson v. Bodenhausen, 835 F. Supp. 2d 1092, 1095 (D. Colo. 2011); Glover v. Vail Corp., 955 F. Supp. 105, 109-110 (D. Colo. 1997).

II. PLAINTIFFS’ FIRST AND THIRD CLAIMS SHOULD BE DISMISSED BECAUSE THEY ARE PREEMPTED BY THE SKI SAFETY ACT

The Ski Safety Act provides the exclusive framework for claims against ski area operators for skiing injuries. See Kumar, 2011 WL 3153338 at *2. This exclusivity is set forth in the Act itself. “Insofar as any provision of law or statute is inconsistent with the provisions of this article, this article controls.” C.R.S. § 33-44-114. This provision was added by the Legislature to leave no doubt about its intent.

To ensure that the SSA is the law that governs ski area liability in general, and litigation arising from skiing accidents in particular, the 1990 amendments added another section which provides that the SSA prevails over inconsistent laws or

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statutes: “Insofar as any provision of law or statute is inconsistent with the provisions of this article, this article controls.” Ch. 256, sec. 7, § 33–44–114, 1990 Colo. Sess. Laws 1540, 1544.

The cumulative effect of these provisions gives the SSA primary control over litigation arising from skiing accidents. We have previously stated that when taken together, the provisions of the SSA “leave[ ] no doubt as to the legislative intent to set forth the governing law concerning ski area liability: both with respect to operation of ski slopes and ski lifts.”

Stamp, 172 P.3d at 444 (quoting Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 84 (Colo. 1998)). The upshot is that the Ski Safety Acts preempts other causes of action not provided for in the Act. See Kumar, 431 Fed. Appx. at 738.

The Act allows a finding of negligence against a ski area operator only for a violation of the provisions of the Act itself that results in injury or property damage. See C.R.S. § 33-44-104(2). Plaintiffs First and Third Claims – for Negligence/Wrongful Death and Willful and Wanton Conduct – are not recognized claims under the Act and do not allege any violation of the Act. (See Compl., ¶¶ 18-36 & 40-53.) Thus, Plaintiffs’ First and Third Claims fail to state a claim, and should be dismissed. See Kumar, 431 Fed. Appx. at 738-39.

III. PLAINTIFFS’ SECOND CLAIM SHOULD BE DISMISSED BECAUSE IT FAILS TO STATE A CLAIM FOR A VIOLATION OF CRS 33-44-107(4)

In contrast to their First and Third Claims, Plaintiffs’ Second Claim attempts to assert a violation of the Ski Safety Act. It alleges that Vail failed to “close access to that portion of Prima Cornice Trail between the ‘upper entrance gate’ and the ‘lower entrance gate’” in violation of C.R.S. § 33-44-107(4). (Compl., ¶ 38.) Plaintiffs cannot prevail on this claim either.

Section 107(4) provides requirements for posting a sign or putting up ropes or fences if the ski operator decides to close a slope. It provides

If a particular trail or slope or portion of a trail or slope is closed to the public by a ski area operator, such operator shall place a sign notifying the public of that fact at each identified entrance of each portion of the trail or slope involved. Alternatively, such a trail or slope or portion thereof may be closed with ropes or fences.

C.R.S. § 33-44-107(4). Significantly, the Act imposes no requirement that an operator close a trail. Rather, the Act requires that “if” the operator decides to close a trail or portion of it, then the operator needs to notify the public at the entrance to the closed portion of the trail, since there is no requirement that an operator close a trail. Thus, there is no claim for failure to close a trail, and Plaintiff cannot prevail on such a claim under Colorado law. The requirement under the Ski Safety Act is merely that if the portion of a trail is closed by the operator, the operator must provide notice of the closure as set forth in Section 107(4).

Plaintiffs’ Complaint alleges that the upper entrance gate to Prima Cornice was closed, and that this closure was intended to close the involved portion of the run, from the upper gate to

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the lower gate. (Compl., ¶¶ 11-12.) Thus, even under Plaintiff’s own Complaint, Vail complied with 33-44-107(4) by providing a closure notice at the involved entrance to the upper part of the run. Vail provided notice of closure as required. The Complaint further alleges that Vail’s intention was to mark this area closed due to the avalanche danger. (Compl., ¶¶ 12-13.) Because Vail marked as closed the identified entrance to the upper portion where the avalanche occurred, its burden is met, and this claim should be dismissed.

IV. PLAINTIFFS’ THIRD CLAIM SHOULD BE DISMISSED BECAUSE THERE IS NO CAUSE OF ACTION FOR “WANTON AND WILLFUL CONDUCT”

Plaintiffs’ Third “Claim for Relief” is titled “Wanton and Willful Conduct.” There is no independent cause of action under Colorado law for wanton and willful conduct. Plaintiffs seem to want to allege a heightened sort of negligence, but Colorado does not recognize such a claim. For this additional reason, the Third Cause of Action must be dismissed for failure to state a claim upon which relief can be granted.

Willful and wanton conduct is generally an element of a claim for punitive or exemplary damages. Comment 1 for the pattern jury instruction for willful and wanton conduct states “[t]his instruction, using whichever parenthesized words are appropriate, should be used with Instruction 5:4.” CJI-Civ. 9:30 (CLE ed. 2012). Instruction 5:4 is entitled “Exemplary or Punitive Damages.” CJI-Civ. 5:4 (CLE ed. 2012). To the extent Plaintiffs seek, with their Third Claim, merely to assert a request for punitive damages as a part of their negligence or negligence per se claims, then that request also must be dismissed because a claim for exemplary damages cannot be made in an initial complaint. C.R.S. § 13-21-203(3)(c). Rather, Plaintiffs must wait until at least 60 days after initial disclosures to even request leave to add punitive damages, and they may only do so if the Court grants the request for leave to amend. See id.

Since the Third Claim is not an independent cause of action and cannot support a request for punitive damages at this stage, it should be dismissed. Finally, paragraphs 43-52 of the Complaint should be stricken as immaterial and impertinent pursuant to C.R.C.P. 12(f). These paragraphs do not address the accident or the events leading up to it. Rather, they involve mistaken beliefs about actions taken by Vail after the incident, and they are irrelevant to, and have no bearing on, any of the causes of action asserted in the Complaint.

CONCLUSION

The avalanche that occurred here was tragic. However, based on the provisions of the Ski Safety Act and the claims alleged in the Complaint, Plaintiffs’ claims must be dismissed. For the reasons set forth above, the motion should be granted and Plaintiffs’ Complaint dismissed.

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Respectfully submitted this 20th day of September, 2012.

Original Signature on File By: s/ Craig R. May

Craig R. May (#32267) Wheeler Trigg O’Donnell LLP 370 Seventeenth Street, Suite 4500 Denver, CO 80202-5647 Telephone: 303.244.1800 Facsimile: 303.244.1879 E-Mail: may@wtotrial.com

Marc A. Bonora, No. 42931 Legal Department Vail Resorts Management Company 390 Interlocken Crescent Broomfield, CO 80021 Phone: 303.404.1895 FAX: 303.648.4822 E-mail: mbonora@vailresorts.com Attorneys for The Vail Corporation

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CERTIFICATE OF SERVICE

I hereby certify that on September 20, 2012, a true and correct copy of the foregoing was filed with the Court via LexisNexis File & Serve with service upon the following:

BURG SIMPSON ELDREDGE HERSH & JARDINE, P.C. James G. Heckbert, Reg. No. 37230 Peter Burg, Reg. No. Seth Katz, Reg. No. 40 Inverness Drive East Englewood, CO 80112 Telephone (303) 792·5505 jheckbcrt@burgsimpson.com pburg@burgsimpson.com skatz@burgsimpson.com

Attorneys for Plaintiff

s/ Paula Hagar