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Silverton Avalanche School dropped from lawsuit

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It appears that Silverton Avalanche School was dropped from the lawsuit by the Marshall family, along with their guide. Neither party has commented so a settlement amount was most likely agreed on.

The family of Peter Marshall, who died in an avalanche during an AIARE advanced avalanche safety class with the Silverton Avalanche School, has dropped the school and teacher from their lawsuit. It appears that a settlement was reached. A complaint remains open against Backcountry Access, their owner K2 Sports, and K2 owner Kohlberg & Company.

Settlement Reached with Silverton Avalanche School?

Two years after the death Marshall’s wife and daughter sued San Juan Search and Rescue, the Silverton Avalanche School and the school’s guide, Zachary Lovell, in a wrongful death lawsuit. Last month the family dropped its claims against the county, school and guide. Attorneys for the Marshall family have not returned calls or responded to emails and representatives from the county and school declined to comment, indicating a settlement amount was most likely agreed upon.

The Fatal Avalanche Accident and the Allegations

The family had argued that the school and guide had misled Marshall into taking the class by “falsely presenting” that school staff “possessed deep operational experience in avalanche terrain.” The family also claimed the school and guide displayed gross negligence.

Marshall had been participating in the Silverton Avalanche School Level 2 American Institute for Avalanche Research and Education (AIARE) class on Jan. 5, 2019. He was swept down a slope in an avalanche that caught five other skiers. Four were not buried. Another was buried but was able to extricate himself. When the skiers freed Marshall from the debris, he was not breathing.

The Colorado Avalanche Information Center (CAIC) report pointed to several mistakes during the advanced class, including a group of skiers gathered on a slope steep enough to slide, those skiers misjudging the steepness of that slope and a failure to recognize clear avalanche hazards. The guide triggered the first avalanche, which swept the whole group down the slope. A second avalanche buried Marshall under several feet of snow.

Remaining Complaint Against Backcountry Access and K2 Sports

The family of the 40-year-old Longmont skier is still suing K2 Sports and its subsidiary Backcountry Access, which makes an air bag backpack that was not deployed when rescuers found Marshall buried in more than 8 feet of avalanche debris. “Peter Marshall attempted to trigger his Float 32 avalanche air bag system but it did not fully deploy or inflate,” according to the complaint filed in Boulder District Court.

Marshall’s Backcountry Access Float 32 pack was not inflated. Colorado Avalanche Information Center investigators said in their report that the air bag backpack “was functioning properly,” with “the trigger out of the pack strap, but the bag was not deployed.”

K2 Sports, owned by private equity firm Kohlberg & Company, denied the allegations in a response filed this month. The K2 lawyers cited 16 facts they believe eliminate liability in their motion to dismiss the case. 

Previous Float Pack Problems

The complaint notes that Backcountry Access recalled “substantially similar” Float packs due to a problem that could lead to a failure to deploy. The U.S. Consumer Products Safety Commission reported the recall of 8,200 Float 18 packs on Nov. 26, 2013. They warned that the trigger assembly can fail “resulting in the air bag not deploying, posing a risk of death and injury in the event of an avalanche.”

The complaint by the Marshall family argues Backcountry Access “should have known insufficient changes were made to the design of avalanche air bags manufactured after the recall to prevent such failures.” The lawsuit argues that Backcountry Access should have been aware of “safer alternative designs,” such as a remote or automatic triggering or inflation system.

Another skier in the group was wearing an avalanche air bag and attempted to use it when he was swept off his feet. It also failed to inflate. “Later, he determined that he assembled the trigger mechanism incorrectly,” reads the CAIC report. It did not identify the brand of air bag used by that skier.

A 2014 study showed 60% of avalanche accidents involving skiers with un-inflated air bags were because the skier never pulled the trigger. That study also showed 12% of so-called non-inflation incidents were due to user error, including assembling the trigger mechanism incorrectly.

Site of fatal avalanche. During a Level 2 AIARE course held by Silverton Avalanche School.
Site of the fatal avalanche during a Level 2 AIARE course behind the lawsuit against Silverton Avalanche School (settled) and Backcountry Access.

Silverton Avalanche School raises money with Rando Race

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Silverton Avalanche School is the beneficiary of the second annual Know the Snow Rando Race. The race at Purgatory raises money for the Know the Snow Fund which supports avalanche classes.

This year’s race was dedicated to the memory of Bert Perry and Jeff Paffendorf, Durango community members and experienced backcountry enthusiasts who recently died in an avalanche outside of Silverton.

Dr. Jeff Paffendorf, an experienced skier, died on Dec. 10 along with Albert Perry. They were caught in an avalanche they triggered on the north face of the Battleship, which is near Silverton.

Their accident shows just how unstable the snowpack was. It is important for backcountry skiers to be as knowledgeable as possible about the conditions they will face.

Wind blown snow was deposited on the slope where Paffendorf and Perry skied. It accumulated on an unstable base layer. The Colorado Avalanche Information Center had reported that the avalanche danger was considerable that day.

In 2020, the race raised more than $10,000 and provided 19 scholarships for skiers to attend avalanche education courses with Silverton Avalanche School. The funds fully paid for Level 1 and Level 2 avalanche courses at Silverton Avalanche School.

Silverton Avalanche School Rando Race promo
Rando Race promo.

Silverton Avalanche School Avalanche

Avalanche Lawsuit names Silverton Avalanche School, guide and BCA

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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.

Site of a fatal avalanche during an AIARE Level 2 avalanche class.
Site of the 2019 avalanche which caught six participants in an AIARE Level 2 avalanche class taught by 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). 

Lawsuit defendants

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. 

Avalanche death in a Level 2 avalanche class
The 2019 avalanche which caught six participants in an AIARE Level 2 avalanche class taught by Silverton Avalanche School. The original snow slide is off the edge on the right, the debris and star are where the second avalanche buried and killed a student.

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.”