An investigation seeking to determine whether a backcountry guide was criminally negligent during a California ski trip that left eight people dead in an avalanche and another presumed dead has surprised legal experts, who say it lacks precedent.
Backcountry tour clients often sign a disclaimer to protect the guide and his company from potential lawsuits. Attorney Andrew McDevitt said California courts have held that skiing involves certain dangers.
This means recreational skiers assume certain risks, such as potential collisions with rocks or trees and changing snow conditions.
McDevitt and other attorneys in California, Colorado and Utah who handle civil cases arising from ski accidents said they had not previously heard of a deadly avalanche on a guided tour that triggered a criminal investigation.
But this week’s avalanche may have drawn close attention due to its size, McDevitt said, and the decision was made to proceed despite forecasts indicating the possibility of an avalanche. The slide was the worst in the United States since 1981, when 11 climbers died on Mount Rainier in Washington state.
Utah ski injury attorney Rob Miner points out that a waiver signed by a backcountry travel client does not absolve a tour guide company of liability if it fails to follow proper safety protocols or fails to adequately inform clients of the risks they face.
“They are guides. Presumably, they are not leading you into an experience that could kill you, or create an unreasonable risk of death,” Miner said.
The group was skiing out of the remote Sierra Nevada wilderness on Tuesday when they were hit by a massive avalanche. The victims included three of the four guides from Blackbird Mountain Guides who were leading the tour. Six people survived.
For investigators, key moments may include the guide’s choice to embark on a three-day backcountry trip with 11 clients at a time when avalanche risk was high, and then the decision to ski away on Tuesday after avalanche conditions worsened due to severe storms.
The Nevada County Sheriff’s Office declined to release more information Friday when it announced the investigation. The state agency that oversees workplace safety also said it had launched an investigation into the tragedy.
Attorneys say guides’ decisions and how they communicate with clients could also affect the outcome of any lawsuits filed over the deaths. It’s unclear how the guides had access to the latest weather forecast when the group began skiing.
“There’s a lot of speculation,” said attorney Ravn Whitington, who specializes in skiing injury and wrongful death cases in Truckee, Calif., near where the avalanche occurred. “What investigators with Nevada County Search and Rescue, the Nevada County Sheriff’s Office and the Nevada County District Attorney’s Office knew was not known to the public.”
Blackbird Mountain Guides said in a statement that the four guides are backcountry ski certified and are avalanche education instructors. The company said its guides were in contact with senior staff at Blackbird Base during the trip to understand conditions and potential routes.
“We still don’t know much about what happened. It’s too early to draw conclusions, but the investigation is ongoing,” the company said.
The 15 skiers began their journey Sunday as warnings about the storm were intensified. By early Tuesday, officials were warning that avalanches were expected. Safety experts say it’s not uncommon for backcountry skiers to go out when there are avalanche warnings or even worse avalanche warnings.
Families of six Blackbird customers who died said the trip was well organized in advance and avalanche safety equipment was provided for the victims. “They were trained and prepared for the wilderness trip and trusted their professional guides on this trip,” the families said in a statement Thursday.
