The Avalanche Review, VOL. 10, NO. 5, MARCH 1992
Copyright © All Rights Reserved; AAA

Reflections of a Plaintiffs' Consultant

by Ed LaChapelle

This discussion can best get started with an overview of recurring patterns in lawsuits related to snow, avalanches and skiing. Though an avalanche consultant's ideal world might involve solving fascinating technical problems, in the real world it all too often involves work as consultant or expert witness for lawsuits. Sitting in judgement on disasters is my least favorite kind of work, but in the last couple of decades it has, unfortunately, become one of my major activities.

Accidents, usually avalanche-related but sometimes involving other aspects of snow and skiing, seem to fall into a spectrum of types as far as questions of negligence are concerned. This spectrum can be summarized in a graph like Figure 1. Here we are looking at a curve portraying the degree of safety achieved as a function of the number of steps (safety measures) taken to achieve it. Each expert in the field might have his or her own idea of the exact shape of this curve, but clearly it has certain basic properties. Similar curves probably can be drawn for a wide range of activities involving public safety and questions of negligence, but here we are talking about snow and avalanches.

The curve starts out at Step 0 somewhere higher than zero percent safety. The world, after all, is not an infinitely hazardous place. Neither can it be made infinitely safe, hence the curve can only approach 100% safety but can never reach it. The curve rises steeply with the first few steps taken to improve safety. These are usually simple and obvious steps, like installing safety controls on a ski lift or setting up a snow safety program to close avalanche slopes during high danger periods.

As additional steps are taken, the additional increments of safety become smaller and smaller. Somewhere out along the curve the increments become so small that additional steps are no longer reasonable.The early, steep part of the curve I call the consensus domain of negligence. If an accident occurs due to some failure or negligence in the area, these are obvious from the general viewpoint of common sense. A reasonable person might say of this domain that, "I may not be able to define negligence, but 1 sure know it when I see it." Lawsuits generated by this kind of negligence do not usually go to trial; they are settled out of court.

Farther out the nearly level part of the curve, on the other hand, the degree of negligence involved in errors of omission or commission of the safety steps are not nearly so obvious and may be inscrutable to a reasonable person. I call this the courtroom domain of negligence. A lawsuit within this domain can be identified when attorneys have to explain and prove to the jury, often at great length, that negligence has in fact occurred. A defendant in the courtroom domain tends to stand on shifting ground. For instance, a lawsuit might hinge on the accuracy of an avalanche forecast. Part of the data going into the forecast might be profile data from three snow pits (safe step x). The plaintiff's attorney asks if the forecast might not have been more accurate if four pits had been dug. The data-hungry forecaster has to admit that, marginally at least, this could be true. Then negligence is charged for not having dug the fourth pit (safety step x+1). The forecaster who did dig four pits immediately has to defend himself for not having dug five. The consensus domain has been left far behind.

Between the two domains there is a gray area where there is room for substantive arguments about whether negligence has occurred or not. The boundaries of this gray area are hard to specify; they probably shift from one situation to another.

With these perspectives in mind, we can examine where the Alpine Meadows accident of March 1982 fits into the picture. This accident reinforced for us all a couple of important lessons.

Preliminary to discussing these lessons, it is worth noting how a consultant gets drawn into such a case. When the plaintiff's attorneys first approached me, they painted a picture of a ski patrol and snow safety crew that had totally screwed up through incompetence and neglect. I immediately said to myself, "Hey, wait a minute. This doesn't sound like an operation run by the Bernie Kingery 1 knew. I'd better look into this and set the facts straight." 1 did look into it and found that Alpine Meadows did in fact have a first-class snow safety operation that deserved at least a 95% endorsement. Even the best operations can find some room for improvements, hence the remaining 5%, which, of course, the attorneys zeroed in on to make their case. Much of what went on at the trial was definitely in the courtroom domain of negligence.

Nevertheless, a major accident occurred. Perhaps we are edging into the gray area by identifying the first important lesson: This accident involved far more a people problem than it did a technical one. Identifying the danger wasn't really an issue. On rereading my files on this case, 1 was struck by how clearly and accurately the avalanche danger to the base area and parking lot had been described all the way from Monty Atwater's original survey in 1964 right down to Alpine Meadows' Avalanche Atlas and current snow safety plan for 1982. The problem, so common to much of human endeavor, was to get people to act on this knowledge. There never was one single act or one single person responsible for the accident. The hazard problem just grew. As years went by and no major difficulties arose, the collective inattention of most people involved left the real nature of the danger receding into the background. The avalanche wolf was at the door all along, but, like the Cheshire cat, he had faded to nothing more than a grin, the fangs barely visible. In 1982, Nature called out the wolf pack.


This was a big avalanche. II was much deeper and wider and ran much farther than any previously experienced on this path. This brings us to the second important lesson, one I have encountered so many times that 1 give it extra emphasis, pointing to the Alpine Meadows avalanche as a type example. Each avalanche path has its maximum possible, its 100-year, its "design" avalanche. This biggy is not hypothetical. Sooner or later it will occur. In my experience, "sooner" comes more often than does "later." Every avalanche zoning plan, every defense system, every snow safety plan, has to be based on this possibility.

Planning based on past experience is unreliable in North America because the record is just too short, usually measured in decades. If it were measured in centuries, experience alone might be a better guide. Professional judgement, allowances for climate extremes and engineering analysis of avalanche dynamics have to make up for a deficient length of record. Avalanche consultants often come into conflict with their clients over this point. The consultant draws a conservative boundary for an avalanche runout, thinking maximum, but the client hates to give up all that extra ground as a safety margin, thinking minimum.

Our case files are filled with that recurring complaint when a big avalanche does occur, "But we've been here for years and never seen anything but small avalanches..." There are two morals to be drawn from this second lesson when confronting an avalanche path:

(l) Think big, and
(2) Act accordingly.

Ed LaChapelle is an avalanche consultant. In 1985, he was an expert witness for the plaintiffs in the Alpine Meadow trial.

The Avalanche Review, VOL. 10, NO. 5, MARCH 1992
Copyright © All Rights Reserved; AAA