Judgment denied in tree well death lawsuit

After hearing arguments from both sides, a judge has decided that it should be a jury that determines the final outcome of a lawsuit involving a 2010 tree well death at Whitefish Mountain Resort.

U.S. District Court Judge Donald Molloy on Nov. 10 denied requests for summary judgment in the wrongful death case. He also agreed to postpone the jury trial set for Nov. 30 while two portions of the case are heard in appellate court.

The family of Niclas Waschle, the 16-year-old exchange student from Germany who died after falling head first into a tree well, sued the ski area in December of 2013, along with his host family from Columbia Falls, and the company that coordinated his exchange. The lawsuit claims the area where Waschle was skiing near T-bar 2 wasn’t restricted in any way and there were no warning signs regarding the dangers of tree wells. The suit argues that the resort had the duty to mitigate or eliminate the danger of tree wells and the resort knew the risks posed by tree wells.

The resort counters that Waschle wasn’t skiing within his abilities and that tree wells are an inherent danger of skiing.

“Whether [Whitefish Mountain Resort] should have exercised greater care in warning of tree wells or reducing the risk, and whether Niclas should have been aware of the condition that caused his death and exercised greater care to avoid it, are issues for the finder of fact to resolve,” Molloy wrote in the opinion and order.

Enough evidence has been presented by Waschle’s attorneys to warrant their claim for punitive damages against the resort, Molloy added.

“A reasonable juror could find actual malice,” he wrote.

Skier code

Attorneys for Whitefish Mountain Resort argue that under the Montana skier responsibility code, a skier accepts legal responsibility for injury or damages resulting from “inherent dangers and risks of skiing.” The resort claims tree wells fall under the state statute.

In a July 7 deposition, Whitefish Mountain Resort CEO Dan Graves said the powder conditions off-piste near T-bar 2 were obvious on the day of the accident.

“Once you leave the groomed run, it is very apparent that you are no longer in controlled conditions or semi-controlled conditions,” Graves testified. “You are in raw nature.”

“Once you are in off-piste conditions, you should be aware that you are in a number of inherent risk conditions.”

Attorneys for Waschle’s family, however, note that the Montana Legislature this year amended the skier responsibility statute to add language specifically addressing snow “around or near trees” as one of the inherent dangers of skiing. That language wasn’t included in the code at the time of Waschle’s death.

While the resort counters that the new language merely clarifies the existing language and isn’t specific to tree wells, Molloy sides with Waschle’s family in his opinion. He says the court should presume the Legislature wouldn’t pass meaningless legislation.

“The statute in effect in 2010 did not cover tree wells, and, as a result... were not one of the dangers or risks for which Niclas was statutorily required to be aware,” Molloy writes.

Whitefish Mountain’s attorneys have since filed a petition with the U.S. Ninth Circuit Court of Appeals asking for an immediate appeal of the judge’s interpretation of the 2009 skier code as it relates to tree wells. Waschle’s attorney are set to respond to the petition this week.

In his order, Molloy says the appeal is appropriate and that the decision could influence the outcome of the lawsuit.

“An immediate appeal from the order may materially advance the ultimate termination of the litigation,” Molloy wrote.

Skiing ability

Whitefish Mountain also argues that Waschle violated the skier responsibility code because he wasn’t skiing within his abilities at the time of the accident.

The skier responsibility statute requires a skier “to know the range of the skier’s abilities and safely ski within the limits of that ability.” It also states that a skier’s ability “may vary because of ski slope and trail changes caused by weather, grooming changes, or skier use.”

The resort argues that because Waschle fell, he failed to ski within his ability, and that in order for Waschle to end up head-first in the tree well, he would have had to have fallen prior to reaching the tree well.

In Grave’s deposition, he said that he believes Waschle is to blame for the accident.

“Skiers make choices from the time they step out of their car of where to ski, how fast to ski, what slopes to ski,” Graves testified. “It is personal decisions. And [Waschle] made the personal decision to ski off-piste where he did. By nature of the code itself, you are supposed to ski in control and at the speed to protect yourself and others.”

Attorney’s for Waschle’s family argue there is no evidence Waschle was skiing above his abilities or that he intentionally left the groomed trail. They say that the tree well could have been the cause of the fall, and that even experienced skiers fall prey to them.

In Molloy’s opinion he states that under the reasoning of the resort, “Anytime an Olympic skier falls it proves that the skier is skiing beyond his ability even if the skier had previously completed a faster, flawless run on the same course.”

Warnings and malice

Attorneys for Waschle’s family claim the resort failed to warn of the hazard of tree wells and that the resort knew of the potential danger prior to Waschle’s accident. They claim the resort knew of signage available on tree well safety, and knew of “daily” tree well incidents taking place near T-bar 2, yet took no action.

Whitefish Mountain denies knowing of tree well specific signage prior to 2010.

In his July 7 deposition, Graves points out that in order for Waschle to get to T-bar 2, he would have had to pass by large signs at the bottom and top of Chair 1.

“And [on those signs] is the Montana code that talks about inherent risk, of which one of those is tree wells,” Graves stated.

Whitefish Mountain also argues that specific tree well warnings may not have made a difference, as the resort had warnings in place four years after Waschle’s death when an additional two skiers died in tree well accidents on the mountain.

In his testimony, Graves was asked whether the resort ever discussed providing any additional warnings about tree wells in the T-bar 2 area prior to the accident.

“Other than the inherent risk signage, no,” Graves said. “You have to remember that up until Niclas, the last death was in 1999. 2.6 million skier visits occurred.”

In his opinion, Molloy notes that it remains unknown if Waschle was aware of tree wells near T-bar 2 on the day of the accident. While he had been warned of the danger of tree wells by his host parents, Molloy writes, there were no specific warning signs posted about tree well safety.

“Inherent in Whitefish Mountain’s argument is that, at that time, no one knew the extent of the risk,” Molloy writes in his opinion. “That lack of knowledge can cut two ways, however, raising the question as to whether the risk was foreseeable to Niclas.”

“A reasonable juror could find either that Niclas would have heeded a sufficient warning, preventing his injury, or that a warning would not have changed his behavior or even that warnings themselves are inadequate.”

In a claim for punitive damages, attorneys for Waschle’s family argue that the resort had knowledge of the potentially deadly hazard posed by tree wells, yet purposely promoted powder skiing without warning of the danger.

In his order, Molloy says summary judgment is inappropriate for claims of malice against the resort. Yet, he adds, there is sufficient proof that the resort may have had knowledge of the tree well hazard and approached it in such a way that a jury could find its conduct malicious.

In a July 7 deposition, resort marketing director Nick Polumbus was asked whether any of the resort’s marketing promotions were altered after Waschle’s death.

“That was a bit of an eye-opener, for me anyways — I think for a lot of us, in terms of the risks with tree wells specifically,” Polumbus responded. “We definitely changed how we talked about tree wells on our website and — as well as signage, more specific signage at the ski area.”

Polumbus was asked whether the resort promoted off-piste skiing through trees and powder prior to the accident.

“I don’t know that I would say that we specifically would say — promote it in that way necessarily, so much as just to emphasize the fact that we get a lot of snow and that the snow quality is very good and consistent,” Polumbus responded.

Polumbus was then asked whether the resort had an emphasis or concern about risks related to tree wells prior to 2010.

“I think that there was some level of concern,” Polumbus responded. “I don’t think that there was a great deal of emphasis on it as a hazard, because it was not something that we had much experience with.”

Waschle’s attorneys also argue that the resort knew the winter storm with whiteout conditions on the day of Waschle’s accident posed an increased risk of tree well formation, and that the resort never closed T-bar 2 on powder days, despite the potential for tree wells.

In his deposition, Graves agreed that the T-bar 2 area is prone to tree wells and that he believed the resort knew that was the case prior to 2010.

Host parents

Along with his order to deny summary judgment, Molloy has agreed to postpone a jury trial in the case while his previous decision to dismiss the host parents from the suit is challenged in the U.S. Ninth Circuit Court of Appeals.

Molloy ruled Sept. 4 in favor of a motion for summary judgment filed by Columbia Falls residents Fred and Lynne Vanhorn, Waschle’s host parents at the time of his death. The ruling removed the Vanhorns from the lawsuit.

Molloy wrote that the Vanhorns warned Waschle about the dangers of skiing alone, and even if they hadn’t warned him, it is still unlikely that the lawsuit would prevail.

Molloy said that Waschle was an intermediate skier who had gone on solo skiing trips in the Swiss Alps in the past. He noted that Waschle had written the Vanhorns prior to his arrival, saying that he was an avid skier. Waschle’s parents and the Vanhorns also discussed purchasing a ski pass and they provided money for him to ski at the resort.

Attorneys for both the resort and Waschle’s family are ordered to file a joint status report within 30 days of the resolution of the appeal.