On July 18, Elizabeth Burns was on the first day of a backpacking trip in the Absoraka Range with Wilderness Ventures, a company based in Jackson. The two-week trip was a highly anticipated break from routine for the high-school junior from a Chicago suburb. She told friends she was looking forward to getting away from her cell phone and computer and meeting new people.
That afternoon, Ms. Burns likely experienced beautiful vistas, a good sweat, and the universal joy of dropping a heavy pack from her shoulders. But not long after arriving at the first night’s camp site, four miles east of the Turpin Meadows trail head, things went horribly wrong.
The Absorakas are prime grizzly country, and some members of the group went to hang food in “bear bags” in a tree. Beetles have killed many of the pine trees in Wyoming’s mountains, and the backpackers may have been limited in their options. It is unclear what guidance, if any, was offered by the trip’s two leaders. Someone made the fateful decision to hang the bags in a dead tree. (Mike Cottingham, who along with his wife, Helen, is a founder and owner of the company, declined to answer questions for this article.)
As the bear bags were hefted into the air, the 75-foot tall tree uprooted and fell, striking Ms. Burns some 66 feet away, according to a report by the Teton County Sheriff’s Office. She never regained consciousness and was pronounced dead two hours later.
Thrills, risks, and lawsuits
Wyoming’s rugged beauty makes it a big draw for outdoor-recreation enthusiasts, who come to ski, hike, raft, climb, hunt, fish, and ride horses. Tourism is Wyoming’s second biggest industry, after mineral extraction, producing more than $1-billion per year in revenue. Outdoor recreation is usually what the visitors are seeking.
But with the thrills come plenty of risks. Every year, people like Elizabeth Burns—clients of Wyoming companies—die or suffer serious injuries while recreating in the great outdoors.
And, not surprisingly, some of them sue. More often than not, an out-of-state visitor is suing a Wyoming company.
In 1989, the Wyoming Legislature addressed the litigation concerns, at the prodding of Jackson Hole Mountain Resort and other ski resorts. The Wyoming Recreation Safety Act makes clear that clients of recreation companies assume the “inherent risk” of the activity in which they’re participating.
The law has been described as the one of the strongest in the country at providing protections for outdoor-recreation companies, and lawmakers have bolstered it more than once. Courts have not only thrown out lawsuits in clear-cut cases—like the skier who died after willingly going off a 25-foot terrain-park jump at Jackson Hole—but have also rejected claims in less-obvious cases, including injuries resulting from slipping saddles and chair lifts.
Ask just about any personal-injury attorney in Wyoming, and they’ll tell you that the protections are so strong that they decline to take on many of the injured recreationalists who come to their door. The same attorneys say the Recreation Safety Act may have so successfully achieved its goal of deterring litigation that some struggling outfitters or recreation companies could be cutting corners on safety—thanks to the comfort that any resulting accidents might be whisked away by the “inherent risk” doctrine.
“It creates in providers a sense of security, and maybe some of them do not go as far as they would otherwise be inclined to go if they thought they were more exposed to the risks of litigation,” says Gary Shockey, a lawyer in Jackson.
To be sure, plaintiff’s attorneys are a biased group. But even some judges have expressed dismay at the law that they must uphold.
“Consumers in Wyoming are now faced with an entire industry whose economic and consequent legislative power enables them to conduct business with only a passing thought to the safety of those who utilize their services,” William F. Downes, a federal district-court judge, editorialized back in 1998, in his opinion that dismissed the claim brought by a man who was injured when his saddle slipped.
No one has suggested that Wilderness Ventures is that kind of company. Former employees and Jackson residents praise the company’s professionalism and safety record. The company, which has been in business for 38 years, notes on its Web site that it has helped 2,100 students climb Wyoming’s Grand Teton, and another 2,200 scale Washington’s Mount Rainier, all without injury.
Elizabeth Burns died less than four months ago, and her parents, Sally and Michael Burns, are still in mourning. Sally Burns and the family’s attorney, Thomas A. Demetrio, a prominent personal-injury lawyer in Chicago, declined to comment for this article.
If the case ends up in court, the outcome may help further illuminate how much protection the Wyoming Recreation Safety Act provides.
Falling trees are clearly a risk of hiking and camping in Wyoming—and one that will no doubt rise in the years to come. But any Wyoming company in the backpacking business would know why dead pine trees are known as “widow makers.” A 16-year-old from Lake Forest, Ill., might not share the same knowledge.
A court may ultimately have to decide if Wilderness Ventures did enough to keep Ms. Burns out of harm’s way—or if, in the case of a falling tree, the company had no obligation to do so.
“There’s a lot of ambiguity,” says Terry Mackey, a personal-injury lawyer in Cheyenne, “in the term ‘inherent risk.’”
A Chilling Effect
Steve Duerr is currently about as far away from recreation litigation as you can get—he’s the director of the Murie Center, a nonprofit in Grand Teton National Park that helps people understand the value of conserving wildlife and wild places. But in the 1980s, he was general counsel at Jackson Hole Mountain Resort—which was then, as now, among the biggest targets in Wyoming for recreation-related lawsuits.
Duerr wrote much of the Wyoming Recreation Safety Act. And he has retained an interest in recreation law, even as he has moved into the quieter nonprofit arena. In September, Duerr and several other lawyers participated in a panel discussion on the Recreation Safety Act at the Wyoming State Bar’s annual meeting in Cheyenne.
“The law does have a chilling effect on the types of cases that lawyers bring to court,” Duerr says. “That was the desired public policy.”
As Duerr noted in a presentation last month at the Cheyenne meeting, Wyoming’s law came into being at a time when other states were passing similar bills to grapple with the public’s increasing eagerness to sue. In 1978, a skier in Vermont tripped over some underbrush and broke his neck—and a jury ruled that Stratton Mountain Corporation owed him $1.5-million in damages.
A Time magazine piece at the time said such judgments were pushing up the cost of insurance and—hold your laughter—“raising the specter of $25 to $35 a day lift tickets.” To keep insurance rates for their ski resorts affordable, states like Vermont, Colorado, and Wyoming began passing laws that limited the liability of ski corporations.
Earlier court rulings lent historical precedent to the movement. In a 1929 case in New York, Judge Benjamin Cardozo, who later became a U.S. Supreme Court justice, ruled that when a man fell and fractured his knee cap on an amusement-park ride called “The Flopper,” he had assumed the risk of riding the moving belt.
“The timorous may stay at home,” Judge Cardozo wrote.
That sentiment plays well in Wyoming, which prizes self reliance and personal responsibility.
“If you ask people on the street what they think, they would tell you what the Recreation Safety Act has now codified: ‘You get on a horse, you strap on those skis, and you’re taking your chances,’” says Jim Lubing, a Jackson lawyer who has been defending Jackson Hole Mountain Resort from lawsuits for the past decade.
Kate Mead, another Jackson lawyer who defends outdoor-recreation providers, knows all too well about such risks. She is married to Brad Mead, the brother of Gov. Matt Mead. Their mother, Mary Mead, died in a horse accident in Grand Teton National park in 1996 while driving cattle.
Kate Mead says that in her most recent case involving the Recreation Safety Act, the plaintiff testified about how much fun he had been having until he was injured.
“That sums it up,” she says. “People really want to enjoy the adrenaline things in life—until they get hurt.”
The Legislature Strikes Back
Over the past 22 years, Wyoming courts and juries have grappled with the meaning of “inherent risk”—which may be among the fuzziest terms in Wyoming law. And when the answer has been unfavorable to recreation providers, the Legislature has been quick to take action.
In a 1995 case, Halpern v. Wheeldon, one of the first tests of the act’s strength, a man who severely broke his ankle after being bucked off a horse later sued the trail-ride provider. The trial court found that getting bucked off a horse was an inherent risk.
At the time, the act stated that recreation providers were “not required to eliminate, alter or control the inherent risks.” On appeal, the Wyoming Supreme Court deduced that an inherent risk is one that can’t be controlled or eliminated. The court said it was possible that the Wheeldons could have eliminated the risk of getting on the horse by helping Mr. Halpern mount in a different way. It said the trial court had erred in dismissing the case.
That wasn’t the kind of decision that ski corporations and dude ranches had envisioned when they helped shepherd the Recreation Safety Act into law. They hired lobbyists and went back to Cheyenne. In 1996, the Legislature amended the act, taking out the language about eliminating or controlling inherent risks.
“The law was changed by the Legislature to make it even more protective of providers,” says Mel Orchard, a partner with the Spence Law Firm in Jackson. “It changed essentially to say that the provider had no duty to alter the activity to reduce risk.”
One year later, in 1997, Howard Cooperman, a novice rider, injured his shoulder when his saddle slipped on a trail ride with Wyoming Rivers and Trails outside Pinedale. After an expert witness testified that slipping saddles were an inherent risk of horseback riding, Judge Downes threw out Cooperman’s lawsuit. Whether the company made an appropriate effort to cinch the saddle was irrelevant, the federal judge noted.
Judge Downes called it a “frightening prospect” that companies had no duty try to control such risks, but nevertheless stated that he would respect his place in the system.
“A court should not decimate the purpose of a legislative act, no matter how distasteful, when that purpose is clearly incorporated in the language of the act,” Judge Downes wrote.
The net result of such rulings is that Wyoming lawyers look long and hard before accepting clients who want to sue recreation providers, especially since lawyers often work on contingency, in which case they’re only paid if they win or settle the claim.
“If you take a case and put a lot of money and time into it, and the judge says you’ve got no case, then where are you?” asks William Fix, a lawyer in Jackson.
A 2005 article in the Suffolk University Law Review named Wyoming as the state that offers the “greatest protection” to recreation providers—a sentiment with which Mr. Fix and others agree. But there’s not unanimity on this topic.
James Moss, an attorney and professor in Colorado who specializes in recreation law, argues that Colorado’s Ski Safety Act (Colorado has sport-specific laws, rather than a broad act covering all recreation providers as in Wyoming) is stronger, because it names inherent risks like bare spots and lift towers that all skiers must accept.
“Wyoming’s act allows more litigation due to the fact that there’s less specificity in how it’s written,” Moss says.
But specificity can cut both ways. For example, after listing a slew of inherent risks, Colorado’s act states: “Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.”
Wyoming’s broader law, however, can give resorts cover even with ski lifts. In 2005, Sharon Muller suffered injuries to her leg and knee when her ski boot got caught under the Bridger Gondola at Jackson Hole Mountain Resort. When she sued, a federal jury sided with the ski resort, concluding that boarding a ski lift is an inherent risk of skiing. The ruling was later upheld by the Wyoming Supreme Court.
A Constitutional Challenge
Fix, who represented Muller, challenged the constitutionality of the Recreation Safety Act on appeal. Fix says Wyoming law treats people who buy a service from a recreation provider worse than those who buy a service or product from other types of companies.
“It’s singling out a class,” Fix says. “We are all supposed to stand equal under the law.”
In upholding the decision favoring the resort, the Wyoming Supreme Court didn’t rule on the constitutionality challenge.
Grant Larson, a Jackson resident and former state senator who helped introduced the 1996 amendments, says the Recreation Safety Act remains a “good law.”
“Surprise, surprise, the trial lawyers don’t like it,” Larson says. “Their job is to go sue people. That’s what the law was designed to prevent, particularly frivolous lawsuits.”
The most controversial claim some trial lawyers make is that the Recreation Safety Act is so strong in shielding providers from litigation that they may be cutting corners on safety.
“In my own experience in dealing with outfitters and other recreation providers, I believe that’s probably true,” says Mackey, the Cheyenne lawyer. “They probably don’t take things as seriously as they might otherwise if they didn’t have the solace of that statute.”
Mackey is on a legal team representing Christine Nodine, who sued Jackson Hole Mountain Resort after her husband, David, died in an in-bounds avalanche while skiing at the resort in December 2008. The resort argues that avalanches are an inherent risk of skiing.
Ms. Nodine maintains that the resort should have been aware of “unacceptably dangerous” conditions after another avalanche in the same area buried a snowboarder earlier in the day. Her lawsuit claims that the resort’s president, Jerry Blann, pressured the head of the ski patrol to open that portion of the mountain after two days of heavy snow for economic reasons. Blann has denied those allegations.
Mackey declined to comment on the Nodine case, since it is ongoing. (The case was recently dismissed on a technicality, but that ruling will likely be appealed.)
Jim Lubing, the resort’s lawyer, says the protections of the Recreation Safety Act would never factor into the resort’s decision-making about safety.
“I understand the argument, but certainly that reality does not apply to the Jackson Hole Mountain Resort,” Lubing says. “It’s a consummate professional organization, that ski patrol out there.”
Gary Shockey, the Jackson lawyer, says it is the companies that are just scraping by that may be most likely to sacrifice safety.
“It doesn’t take a genius to figure out that if you’re operating on a budget, or on a time schedule, and you know that you have this state protection in the event that something you don’t want to have happen happens anyway, then you have no incentive to go the extra mile or spend the extra money on the part of safety,” he says.
Kate Mead, the Jackson lawyer who defends recreation providers, acknowledges that such thinking is possible, especially in a business like whitewater rafting where the season is short and the competition for tourist dollars is intense.
“They start with the low water in May, and then it goes to high water,” Mead says. “They’re not about to close down the river because it’s dangerous–the white-water rafting companies really count on that income. In any case where you have business involved, they’re doing some cost-benefit analysis along the way.”
Many of the deaths on the Snake River in recent years have occurred during the run-off in June and July. While whitewater companies operate in Snake River Canyon south of Jackson, the scenic tours float north of town, in front of the Tetons.
In 2006, a scenic raft operated by Grand Teton Lodge Company hit a dead cottonwood snagged in the river, throwing the guide and 12 clients into the Snake. Three passengers died, and the lodge settled for an undisclosed amount three years later with relatives of the victims. Mel Orchard, who represented the relatives, argued that the company had downplayed the risks in its marketing materials.
“It’s human nature for people to do things differently when they think they have no way of being punished,” he says. But he says he doesn’t believe that many recreation companies are sacrificing safety thanks to the protections of state law.
“I want to believe that our Wyoming companies are trying to provide reasonable recreation activities, and just want make a living for their families and provide a living for their employees,” he says.
Steve Duerr says there are plenty of “sticks” to encourage Wyoming providers to take adequate safety precautions, including requirements from insurance companies and permitting agencies like the U.S. Forest Service. He says it’s hard to believe that any company or employee, including the guide of the ill-fated scenic raft trip, would knowingly put clients in harm’s way because they believed that their legal vulnerability was low.
“I’m sure the guide on the Snake didn’t have in his mind, ‘I’m going to be protected by the inherent-risk statute,’” Duerr says.
Catherine Hansen-Stamp, an attorney and the author of two Wyoming Law Review articles about the Recreation Safety Act, says she would be surprised if any Wyoming companies were cutting corners due to protections provided by the act.
“The act doesn’t include an elimination of the ability to sue for negligence,” says Hansen-Stamp, who advises recreation providers on legal issues and risk management. “It certainly behooves recreation providers to endeavor to run a professional and quality operation and engage in responsible risk-management practices. This concept is the philosophy of my practice. If a provider is operating otherwise, they are making a huge mistake.”
Tom Holland is executive director of Teton Valley Ranch Camp, now based outside Dubois, which provides summer camps, including backpacking, non-technical climbing, fly-fishing and riflery, for students between the ages of 11 and 17. Part of his job is to travel to the living rooms of the camp’s alumni in cities throughout the country and pitch the benefits of his camps to teens and their parents. He tries to address the risks head-on.
“We say the experience your child will get out of this will be because of the challenges that come throughout the summer, and that come with the inherent risks of riding horses fast, climbing mountains in the Tetons, and going to riflery,” Holland says. “The special feeling they get will come from those risks being taken.”
The camp retains Hansen-Stamp for legal and risk-management advice, so Holland is well aware of the Recreation Safety Act, but he says he doesn’t think about its protections as he plans activities and staffing for the summer camps.
“I hear people say, ‘We’ve got this law on our side,’ but that’s not my approach,” Holland says. “My approach is I’m going to do to the very best I can, no matter what.”
Even so, many Wyoming recreation providers are careful to stipulate in the release forms that clients and students sign that any dispute will be governed by the laws of Wyoming. The National Outdoor Leadership School, which is based in Lander and runs wilderness skills and leadership courses all over the world, has a line in its release that states that lawsuits shall “be filed only in the State of Wyoming.”
Twelve students have died in the school’s 46-year history, including a student who fell from a steep trail in India in September, 2011. The school has never lost a case in court, although it has settled some lawsuits.
Drew Leemon, the school’s director of risk management, says the Recreation Safety Act is helpful mainly in deterring frivolous suits. “You get a little bit of protection from people who didn’t have a good time,” he says. “If somebody really gets hurt, you’re still exposed. And you care about your clients and you don’t want to see people get hurt.”
Hansen-Stamp wrote an informal paper about the evolution of the Recreation Safety Act for the Wyoming State Bar session in September. Hansen-Stamp, who lobbied for Jackson Hole Mountain Resort when the act was passed, suggests in her paper that some other states have laws that give even greater protection to recreation providers.
“The Wyoming act hasn’t really panned out to be the kind of pre-trial summary dismissal tool that I thought it might be,” she says.
A Shocking Verdict
One of the biggest blows to recreation companies in recent years came in 2009, when a federal jury awarded $1.2-million to the family of Kristina Barkhurst, who died after being thrown from a horse in January 2006. Barkhurst had been receiving training in natural horsemanship from a company near Burns called Harmony Horsemanship. The provider argued that being thrown was an inherent risk of riding. But Gary Shockey, who represented the family, maintained that the horse had a history of bolting, and that the provider had failed to provide proper equipment to control the horse.
Bud Betts, owner of the Absoraka Ranch in the Dunoir Valley outside Dubois, which operates pack trips and hunting trips, says the Barkhurst verdict “sent a mild shockwave through the horse community.” The decision had many, including Betts, wondering for a time whether the law needed to be strengthened yet again to make judges more likely to dismiss lawsuits before they get to a jury.
More than two decades after passage of the Wyoming Recreation Safety Act, the “inherent risk” doctrine remains the wild card at the heart of nearly all recreation-related litigation.
And if the Wilderness Ventures tragedy makes it to court, “inherent risk” will be at the heart of that case, too.
Bud Betts is of the view that it could have happened to anyone. On a pack trip he led this summer into the Washakie Wilderness, an aluminum kitchen box on top of a horse knocked over a dead lodgepole pine. The tree, 10 inches in diameter near the base, fortunately fell away at a 45 degree angle.
“It could have killed somebody, this tree,” Betts says. “You’re going to see more and more of that.”
But others say the facts of Ms. Burns’ death, if and when they come out, might demonstrate that human decision-making made her vulnerable.
“There are all kinds of inherent risks of backpacking,” says Gary Shockey, who is not involved in the case. “If I was going out with a guided group, I would not think that that list would include that the guide did not supervise things properly.
(Banner photo by Lincoln Smith)
— Ben Gose is a Lander journalist who writes frequently for The Chronicle of Philanthropy and The Chronicle of Higher Education, and contributes to programs on Wyoming Public Television. He also coaches the sprinters on the Lander Valley High School track team.
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