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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 Email: email@example.com MARC A. BONORA (#42931) Legal Department Vail Resorts Management Company 390 Interlocken Crescent Broomfield, CO 80021 Telephone: 303.404.1895 Facsimile: 303.648.6569 Email: firstname.lastname@example.org Case No. 2012cv175 COURT USE ONLY
ANSWER Defendant, The Vail Corporation (“Vail”), by its undersigned attorneys, hereby submits its Answer to Plaintiffs’ Complaint and Jury Demand. Vail denies every allegation of Plaintiffs’ Complaint that is not explicitly admitted.
The first paragraph is an introductory statement for which no response is required. To the extent a response is deemed necessary, the allegations are denied. 1. Vail is without sufficient information to form a belief as to the truth or falsity of the allegations contained in paragraph 1 of Plaintiffs’ Complaint and therefore denies them. 2. Admitted.
3. Admitted that venue is technically proper in this Court, though the location of the witnesses may make venue more appropriate in Eagle County, pursuant to C.R.C.P. 98(f)(2). GENERAL ALLEGATIONS 4. 5. 6. Admitted. Admitted. Admitted.
7. Denied. CAIC issues forecasts for the backcountry, whereas “Vail Mountain” includes in-bounds areas. 8. Admitted that CAIC issued the quoted backcountry avalanche information.
9. Admitted that CAIC issued the quoted backcountry avalanche information. Denied that the information was issued for an area “including Vail Mountain,” as “Vail Mountain” includes in-bounds areas. 10. Admitted.
11. Denied. The “upper entrance gate” accessing Upper Prima Cornice was closed, and the “lower entrance gate” accessing Lower Prima Cornice was open. 12. Admitted.
13. Admitted in part. It was the intent of Vail to close Upper Prima Cornice on January 22, 2012 due to avalanche danger on Upper Prima Cornice, but Upper Prima Cornice had also been closed all season due to lack of snow. 14. 15. Upon information and belief, admitted. Upon information and belief, admitted.
16. Admitted that, upon information and belief, Taft Conlin died on January 22, 2012, from trauma that was caused by an avalanche carrying him into a tree.
Denied. Taft Conlin did not die in an avalanche while skiing an open trail. FIRST CLAIM FOR RELIEF (Negligence and Wrongful Death)
18. Vail repeats and incorporates by reference its responses above to paragraphs 1-17 of Plaintiffs’ Complaint. 19. Admitted that Vail, through its employees, was knowledgeable in avalanche conditions and avalanche mitigation such that at all times regarding this incident it acted in compliance with the Colorado Ski Safety Act and in compliance with applicable standards of care, if any, for avalanche conditions and avalanche mitigation within its boundaries. 20. Admitted that, through its employees, it had knowledge of the slopes which could be prone to avalanche within its boundaries such that it acted in compliance with its duties under the Ski Safety Act and with applicable standards of care, if any, on January 22, 2012 and at all other times regarding this incident. 21. Vail is without sufficient information to form a belief as to the truth or falsity of the allegations contained in paragraph 21 of Plaintiffs’ Complaint and therefore denies them. 22. Admitted that, through its employees, Vail had knowledge of the applicable snow conditions relevant to this case such that it acted in compliance with its duties under the Ski Safety Act and with the applicable standards of care, if any, at all times regarding this incident. 23. Denied. Vail knew of the CAIC reports, but as such reports are issued for the backcountry, Vail denies the assertion in paragraph 9 (above) that the report was issued for an area “including Vail Mountain,” as “Vail Mountain” includes in-bounds areas. 24. Admitted.
25. Denied. Lower Prima Cornice was not likely to experience avalanches and was open. Upper Prima Cornice was at increased risk for avalanches and therefore was closed on January 22, 2012. 26. Admitted in part. The Upper Prima Cornice trail was closed for the reasons stated in paragraph 26. The Lower Prima Cornice trail remained open because it did not present the dangers alleged in paragraph 26. 27. Paragraph 27 seeks a legal conclusion to which no response is required. To the extent a response is required, denied that the Ski Safety Act or other Colorado law requires a ski area operator to close areas that pose any avalanche danger whatsoever, but admitted that Vail is required to perform avalanche mitigation as a part of its permit with the Forest Service and that closing areas due to avalanche danger is one aspect of avalanched mitigation.
29. Denied. The Upper Prima Cornice trail was closed in accordance with the requirements of the Ski Safety Act. 30. Admitted that Vail, through its employees, closed the entrance gate to Upper Prima Cornice and also had ropes and signs all along the edge of Upper Prima Cornice above and below the entrance gate making clear that Upper Prima Cornice was closed. Admitted that Vail, through its employees, had opened the entrance to Lower Prima Cornice because Vail determined that it was not likely to experience avalanches. Any remaining allegations in Paragraph 30 are denied. 31. Paragraph 31 seeks a legal conclusion to which no response is required. To the extent a response is required, denied that Colorado law imposes the duty alleged. 32. 33. Denied. Denied.
34. Denied. Such a presumption is a violation of the Ski Safety Act. Additionally, Upper Prima Cornice was clearly marked as closed consistent with the Ski Safety Act and contained signs warning of avalanche danger. Skiers entering the access gate for Lower Prima Cornice knew or reasonably should have known that the slope uphill from that gate was closed, and the Ski Safety Act presumes them to know this and to heed the closure. 35. 36. Denied. Denied. SECOND CLAIM FOR RELIEF (Negligence Per Se) 37. Vail repeats and incorporates by reference its responses above to paragraphs 1-36 of Plaintiffs’ Complaint. 38. 39. Denied. Denied. THIRD CLAIM FOR RELIEF (Wanton and Willful Conduct) The Third Claim for Relief has been dismissed pursuant to this Court’s Order on December 12, 2012. As such, no responses are required for paragraphs 40-53. To the extent any 4
responses are deemed necessary, Vail denies all allegations in these paragraphs, except that it admits the allegations in Paragraph 48 that the Eagle County Sheriff’s Office conducted an investigation of the circumstances surrounding Taft Conlin’s death and the allegations in paragraph 49 regarding the request from the Sheriff’s Office to see various documents related to the accident investigation. Vail denies Plaintiffs’ prayer for relief. DEFENSES Vail asserts the following defenses to Plaintiffs’ Complaint. In asserting these defenses, Vail does not assume the burden to establish any fact or proposition where that burden is properly imposed on Plaintiffs. 1. Plaintiffs’ Complaint fails to state a claim upon which relief can be granted.
2. Plaintiffs’ claims and damages are barred by the Colorado Ski Safety Act as the death was caused by a non-actionable inherent risk or danger as defined by the statute. 3. Plaintiffs’ claims may be barred by the failure to join indispensable parties.
4. Plaintiffs’ claims and damages, if any, were caused by the conduct of third persons over whom this Defendant has no control or right to control. 5. Plaintiffs’ claims are barred by a signed release and waiver of liability.
6. Plaintiffs’ damages were proximately caused by unforeseeable circumstances which Defendant could not have reasonably anticipated. 7. At the time and place alleged in Plaintiffs’ Complaint, Taft Conlin was negligent and such negligence was either the sole, or a contributing cause of, the alleged damages and either bars Plaintiffs’ claims in their entirety or reduces the damages pursuant to C.R.S. § 13-21111 (Comparative Negligence). 8. Plaintiffs’ claims are barred or reduced by voluntary or unreasonable exposure to injury with knowledge or appreciation of the danger and risk involved pursuant to C.R.S. § 1321-111.7 (Assumption of Risk). 9 Damages are barred or reduced by the provisions of C.R.S. § 13-21-111.5 (ProRata Liability). 10. Plaintiffs’ damages are barred or reduced by the provisions of C.R.S. § 13-21111.6 (Collateral Source). 11. Plaintiffs’ damages are barred or reduced by the provisions of C.R.S. § 13-21102.5 and 13-21-203. 5
12. Plaintiffs’ claims and damages are barred, reduced and/or limited pursuant to any other applicable limitations of awards, caps on recovery, and setoffs permitted by law, including but not limited to C.R.S. § 33-44-113. Vail reserves the right to rely upon such other affirmative defenses as may be supported by the facts to be determined through full and complete discovery, and to voluntarily withdraw any affirmative defense. PRAYER WHEREFORE, Vail seeks judgment against Plaintiffs and in Vail’s favor, an award of costs, including expert witness costs, and attorneys’ fees, and such other and further relief as this Court deems proper. Respectfully submitted this 7th day of January, 2013.
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: email@example.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: firstname.lastname@example.org Attorneys for The Vail Corporation
CERTIFICATE OF SERVICE I hereby certify that on January 7, 2013, 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 email@example.com firstname.lastname@example.org email@example.com Attorneys for Plaintiff s/Kimberlee Prechodko Kimberlee Prechodko
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