Peter Marshall died in an avalanche during an avalanche safety class near Red Mountain Pass in 2019. In an avalanche lawsuit his family names the school, the guide, and Backcountry Access.
The slide swept six skiers down a slope. All of them were part of a Level 2 American Institute for Avalanche Research and Education (AIARE) class. Which was offered by the Silverton Avalanche School.
The family is suing the guide, school and local rescue group. And also the maker of an avalanche airbag and its private equity firm owner. This lawsuit marks the second recent legal action involving avalanches based on reports by the Colorado Avalanche Information Center (CAIC).
The wrongful death lawsuit names Silverton Avalanche School, San Juan County Search and Rescue and guide Zachary Lovell. It alleges a litany of failures, fraud, misrepresentation, negligence and consumer protection law violations.
The lawsuit also charges Boulder-based Backcountry Access (BCA) with making a defective Float 32 avalanche airbag. It says the airbag did not inflate after Marshall “attempted to trigger” the balloon-like backpack. The lawsuit also names Kohlberg & Company, the private equity firm that acquired BCA and parent company K2 Sports.
“The defendants, each of them, acted willfully, wantonly, and recklessly, without regard for the consequences or the rights and safety of Peter Marshall or of others,” reads the lawsuit. It argues the school, guide and airbag maker “created substantial and unreasonable risks of serious injury and death to participants” in the avalanche class. “Defendants were grossly negligent and that gross negligence was a cause of the injuries, damages, and losses suffered by plaintiffs and the heirs of Peter Marshall.” The CAIC report noted several mistakes that led to the avalanche. The group was skiing together on a slope that was steep enough to avalanche. They misjudged the steepness, aspect and avalanche danger on the slope they skied. And they failed to recognize the potential for triggering avalanches on nearby slopes.
Allegations against the school and guide
The avalanche was triggered by the guide. It also caught Marshall and carried him to the bottom of the slope. A second avalanche on an adjacent slope buried Marshall in several feet of snow. Lovell and the students searched for Marshall. He was uncovered after 50 minutes.
In the 12 days before the slide, the avalanche center logged 72 avalanches in the North San Juans and noted “considerable” danger. The lawsuit says Silverton Avalanche School staff and instructors agreed not to travel in avalanche terrain that weekend with students.
During those discussions, school staff “expressed concern that defendant Lovell seemed inclined to travel in more complex and bigger terrain. Despite the fragile snowpack and concerning avalanche conditions,” reads the lawsuit.
The lawsuit cites several dozen failures by both the school and Lovell. Those include charges of negligence. Like failing to communicate the day’s avalanche forecast. And allowing instructors to lead students “into, through and below” avalanche terrain. The lawsuit also says the school and Lovell “falsely represented” training and qualifications. The lawsuit notes that BCA in October 2013 recalled some of Float airbags.
Second Lawsuit to rely on CAIC reports
The lawsuit marks a second recent case where a CAIC report supports legal action. In October Summit County prosecutor Bruce Brown levied a $168,000 fine against two snowboarders who triggered an avalanche above the Eisenhower-Johnson Memorial Tunnels in March. The slide buried a service road and destroyed remote avalanche mitigation devices. The two snowboarders gave video to CAIC avalanche investigators. They thought their interviews and perspective would help others avoid future avalanche accidents. A motion filed by the snowboarders’ attorney in November to suppress the video argued the criminal charges stemming from an avalanche could pose a slippery slope for backcountry skiers who traditionally have worked cooperatively with the avalanche center in detailing avalanche accidents.
“The backcountry community needs to know if CAIC is not an ally in their efforts to improve best avalanche practices, but (operates) merely as an extension of law enforcement,” the motion reads. “This is a posture that needs to be clarified for all parties, because if CAIC is seen as a revolving door to police and prosecutor there will be a chilling effect.”