Speed Demons
Should Skiing Too Fast Be A Criminal Offense?

Ashley Robbins may only be 9 years old, but she know the dangers that lurk on the ski slopes.

Her dad's a ski patroller. He won't even let his kids click into their telemark skis until they don helmets. Ashley's been hearing about the Skier Responsibility Act since she first put skis on, at the age of 2 and she's lived here long enough to have heard about skiers who die after striking trees, rocks and other people. But all that knowledge didn't help when she was sideswiped earlier this month while making her way to the lift lines. A young male skier - statistically, a person most likely to be involved in such incidents - hit her so hard, Ashley's helmet was blown clean off her head.

The first ski patroller on scene was Robbins' father. The 9-year-old was conscious but not responsive to questions, and was transported via Flight for Life to Children's Hospital in Denver. Currently, she's she suffers from post-concussive syndrome and is only able to attend school part-time.

Her father, who asked that he not be named because the family has yet to determine its legal options, said she is expected to make a full recovery.

She's one of the lucky ones.

Alan Cobb wasn't.

He was skiing down Riva Ridge, an intermediate run at Vail in April almost three years ago, when he was struck by Nathan Hall, a Vail Mountain employee and a former ski racer. According to eyewitnesses, Hall was skiing straight down the fall line and bouncing off moguls when he came off a knoll and, while in mid-air, saw Cobb. He struck the man in the neck, killing him of a basal skull fracture. Municipal Court Judge Buck Allen who was out skiing that day, said Hall was skiing about three times faster than he and was "out of control." Hall was skiing at such speed, he wasn't able to stop for another 85 feet, Fifth Judicial District Attorney Mike Goodbee said.

Hall was charged with reckless manslaughter, which means he was accused of "engaging in a reckless activity with results that proved disastrous for another." But Eagle County Court Judge Terry Diem characterized Hall's conduct as skiing too fast for conditions and ruled that this is not sufficient to meet the standard for "reckless activity," Goodbee said. There was not, she ruled, enough probable cause to refer the case to district court. Goodbee appealed the case to District Court Judge David Lass, but Lass agreed with Diem. And the charges against Hall were dropped.

"The court's ruling sets a new standard for reckless behavior," Goodbee said. "According to the ruling, skiing too fast has to be more likely to result in death than not. More likely means the chances are more than 50:50. That they're 51:49. Skiing out of control does not more likely result in death."

Goodbee counters that "skiing without the ability to stop or swerve, skiing straight down the mountain at three times the ability of an expert skier can't accurately be characterized as just skiing too fast."

He submitted the case to the state supreme court for appeal. It didn't stand much chance there, Goodbee said, as very few cases are selected to be reviewed.

"It's very discretionary, on the part of the judges," Goodbee said. "The fact that they accepted the petition is huge. It's rare - very rare. And the fact that they want to allow oral argument is even more rare."

But People v. Hall will be heard before the state Supreme Court Feb. 28 in Colorado Springs.

"Either way, it'll be precedent-setting," Goodbee said. "Either way, it will give us more information on reckless skiing to use in criminal prosecution cases. The courts will help us set standards for what may or may not be criminal. I don't mean to sound like a politician, but either way it'll be a win-win situation. We'll know more about standards for reckless behavior."

Goodbee hopes the state Supreme Court will hear oral arguments and return the case to district court for trial. "Imagine going skiing," he said, "and you're 15 minutes away from hot chocolate and your whole world is changed. When people think about vacation, they don't think about the possibility of someone ending up dead at the end of the day. The possibility of impending death is not something people think about."

Recent skier deaths - most notably that of Sonny Bono in Park City, Utah, and Michael Kennedy at Vail - have piqued the interest of the national media, which recognizes the upcoming hearing as a potential precedent-setting decision. What many wonder is if new standards will be set for "reckless behavior" and how that would affect defense arguments in other cases, such as driving too fast for conditions or waving a loaded gun around. For example, if someone were waving a loaded gun in the air and it accidentally discharged and killed someone, it could be construed that the prosecution would have to prove that, in order for that to be called a "reckless activity," the chances of the gun discharging and killing someone are "more likely than not" that someone would die. And statistics don't support that.

The overall injury rate for downhill skiers from 1980 to 1992 was 3.37 per 1,000, according to the Colorado Department of Health. A typical ski season, then, will result in 37,000 injuries and 10 deaths.

"Generally, I respect the court's logic and reasoning way more often than not," Goodbee said, shaking his head and pacing the room. "But I don't on this one. The guy was doing much more than skiing too fast. He was out of control. He was Franz Klammer-ing down the hill."

In the case Ulissey v. Shvartsmann in 1995, it was determined that skiers have to duty to maintain a lookout so as to avoid collisions, to ski within their ability, to remain in control and to refrain from acting in a manner that may cause or contribute to injury of the skier or others. A 1990 amendment abolishes the defense that the risk of being hit by an out-of-control skier is a risk inherent in the sport.

Goodbee thinks the definition of "reckless" skiing should be decided at the local level, where people feel they know how "reckless," and "out of control" should be defined. "The community needs to hear this," Goodbee said. "They live here; they're vested in the ski industry. The community needs to tell me if I'm on the mark or not. It cries out for 12 people from the community to make this decision."

The case also holds the attention of James H. Chalat, a Denver attorney who specializes in skier-vs-skier cases and who filed the amicus curiae brief to the Supreme Court arguing that Hall should stand trial on criminal charges. "That doesn't mean he should be found guilty," Chalat said. "A jury should make that decision."

The first two items listed on the Skier Responsibility Code inform winter recreationalists they must always stay in control and be able to stop or avoid other people and objects, and that people ahead of them have the right of way; it is the skier's responsibility to avoid them. Despite the fact that the Skier Safety Act is only applicable to civil cases, the prevailing view, Chalat said, is that one skier does not assume the risk of another's negligence; a skier collision is not a risk "inherent" in the sport. Skiing is not a contact sport. "There are different levels of responsibility," Chalat said. "There is no question in anyone's mind that Hall was responsible for the accident. He should be financially responsible for the effect. Cause and effect. There is enough evidence that a jury might find that Hall's conduct was criminal."

According to information on his website, the changing face of the industry may play a part in the number of deaths that occur on the slopes each year. In the past 20 years, equipment has become safer. Helmets are routinely seen on skiers' heads. Signage is visible. And lifts are faster. Lift capacity, measured in vertical transport feet per hour has grown at an annual rate of 4 percent - which means skiers are waiting in line and zipping up the hill for shorter periods of time. But the skiable terrain for ski areas in America has grown by only 1 percent each year. "Because the acreage has not increased, skier density has increased," writes Charles Goeldner in a 1994 University of Colorado report. "One study, conducted on a small scale, concluded that an increase in lift capacity, without a concomitant increase in terrain, increases the risk of a skier-versus-skier or snowboarder collision."

"The issue is much bigger than this case," Goodbee said. "It provides a good setting for the issue. Why are these criminal acts? Are they civil or criminal? What responsibilities do resorts have to protect us from us. Where does personal responsibility - my own conduct - come into play? It's a fine line between a criminal act and an unfortunate accident."

Out of control!

Skiing out of control is a bit like pornography: People have trouble describing it, but they know it when they see it.

It's easy to tell a beginner from an advanced skier. But someone who's skiing too fast for conditions or at the threshold of their ability is often the one skiing fast in an area marked "Slow!" Sometimes they're flailing. Or they appear to be in control, except that their eyes are bugged out in fear. They just don't look like they belong where they are.

Jensen says there's a big difference between skiing too fast and skiing out of control.

"They've got their weight on the back of their skis," said Vail Resorts Chief Operations Officer Bill Jensen. "Their turns are not consistent."

But put a professional skier on an empty slope and head them down the mountain at 90 mph and that could be OK. "Out of control is the challenging word," Jensen said. "There are plenty of times we stop someone and they say, 'But I was in control ...' Speed is an element that comes into question. It's a speed and space issue." "Speed and space" is a term similar to that of one's personal space, he explained. If an experienced skier is cranking down an empty run on the mountain, there shouldn't be a problem. Add a couple hundred people, and it's not safe.

"The general population is in relative control 99 percent of the time," he said. "There's always an incident here and there where - whoa! Whoa! - you catch it. But introduce speed and the dynamics come into play. It's a bit like playing Russian roulette."

But reckless?

"Reckless means someone is acting with a conscious disregard that a substantial risk exists," Goodbee said. Webster's describes reckless as "careless, heedless; not regarding consequences; headlong and irresponsible; rash." Substantial means, among other definitions, "considerable; ample; large."

How the dictionary defines a word and how the law interprets are often slightly different. Helping to define that - and, more importantly, if the behavior of skiing too fast can be construed as a criminal act - is where the judges in Colorado Springs come in to play.

"It's a social question that should be answered by the jury," Chalat said. "I think Judge Diem got it wrong. There is a substantial risk that, if you ski right down the fall line, on a crowded day, on a narrow run and you're bumping off the back of your skis and you're going fast, that you'll kill someone or kill yourself. Judge Diem is saying that when someone goes skiing, there isn't a lot of chance you'll kill someone. But if you act in the way Hall acted, there is a substantial risk you will kill someone."

It comes down to personal responsibility - something Jensen, like most Americans, isn't sure should be argued in the courts, as few Americans like having freedoms taken away.

"I don't think two beginner skiers on a beginner run and hitting each other should be a criminal case," Jensen said. "Based on the millions of skier visits we have and the number of incidents we have, I'm worried it might be a bit of an overreaction. It's a speed and space thing."

It's also an issue that could affect the reputation of Colorado - and subsequently hurt its tourism, Chalat wrote in his brief.

"It is accepted fact that reckless high-speed skiing may cause the reckless skier's own death," he wrote. "It is equally reasonable to infer that a skier's reckless high-speed skiing can also result in the injury or death of another. Yet the decision (Diem's) concludes that such conduct could not be found, by any reasonable jury, to evince a mental state of disregard for the safety of others sufficient to support a charge of reckless manslaughter." It's logical, he said, that because numerous skiers have struck inanimate objects and died, that if instead a skier strikes another skier, one or the other could die, as well. If the decision stands, he concluded, it could send the message out to skiers that the Colorado court system doesn't have the framework to undertake such prosecutions, that it tolerates reckless skiing. This could, in turn, result in fewer skier visits to the state and a downturn in the industry.

Furthermore, he cited two cases - one in Grand County and another in Routt - in which people were prosecuted on criminal charges in skier collisions that caused the death or injury of another.

"That's what the court has to decide," he said. "They have to decide if skiing too fast, skiing out of control is a criminal activity."

Chalat believes it's safer out on the slopes this year than it has been in past seasons, but he's reserving comment until he can compare statistics to skier visits, which this year, so far are down 17 percent throughout Colorado. Jensen agrees. "I absolutely believe we've raised the level of awareness out there. What with the speed control, on-slope visibility and signage. That's enough to alter behavior."

Whether or not it alters the opinions of the state's highest legal interpreters, has yet to be determined.