API Summer 2021

RISK MANAGEMENT

integrity of the equipment. Nothing was said about the recent system failures.

were “not regularly waiting for radio advice” from below before sending riders down. The accident. Plaintiff began her ride. As she descended, she was unable to see the flags below indicating the readiness of the braking system. As she approached the receiving platform, according to her complaint, the waiting Vail staff member was “jumping up and down and waving his arms.” Plaintiff collided with the first component of the

braking system, which did not slow her mo- mentum, and the system then “appeared to fail

The group successfully travelled down several lines, observing staff and following the aforementioned proto- cols regarding radio contact and “all clear” signals, before weather briefly interrupted the tour. When it resumed, Plaintiff’s Complaint asserts, the Vail staff changed their supervision and management of the group. Plaintiff noted, for example, that the guides

…or explode.” Plaintiff collid- ed with other components of the braking system and/ or the tower and platform at a “high rate of speed.” She suffered multiple fractures and head injuries. Ms. Cowles filed suit on July 5, 2019, against Bonsai, The Vail Corporation, and other Vail affiliates. The original and subsequent amendments pled negligence and gross negligence, and premises and products liability. The outcome. On June 5, 2020, re- sponding to Bonsai’s motion to dismiss the complaint, the court ruled that the plaintiff had waived her right to sue for negligence under these circum- stances. The court did, however, grant permission to plaintiff to amend her gross negligence claim, a claim which, under Colorado law, would not have been eliminated by the signed waiver/ release. The case ultimately was resolved by the parties without the necessity of a trial. Lessons Learned What are the lessons learned from the circumstances of the reported collision and the action of the Colorado court? The accident occurred “in plain sight.” There can be little doubt that plaintiff collided with equipment on the line and, likely, with some aspect of the receiving platform. It would be difficult, based on the facts as presented, to find any fault on her part. And she clearly was badly injured. Details matter. If plaintiff’s allegations are true, a defect in the braking system can be traced reasonably to the design- er, manufacturer, and installer, Bonsai. There is evidence of a defect in, or at least recent mis-performance of, the system. >> continued

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