DISTRICT COURT, BROOMFIELD COUNTY,

COLORADO
Court Address: 17 Descombes Dr.
Broomfield, CO 80020

LOUISE H. INGALLS and STEPHEN E. CONLIN,

individually, and as surviving parents of TAFT M.
CONLIN,

COURT USE ONLY

Plaintiffs,

Case Number: 2012cv175

v.

Division: B

THE VAIL CORPORATION,

Defendant.
Attorneys for The Vail Corporation:
Robert C. Blume (#37130)
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Suite 4200
Denver, CO 80202-2642
Telephone:
303.298.5700
Facsimile:
303.298.5907
E-mail:
rblume@gibsondunn.com
Craig R. May (#32267)
WHEELER TRIGG ODONNELL LLP
370 Seventeenth Street, Suite 4500
Denver, CO 80202-5647
Telephone: 303.244.1800
Facsimile: 303.244.1879
E-Mail:
may@wtotrial.com
DEFENDANTS MOTION TO TRANSFER CASE TO
EAGLE COUNTY DISTRICT COURT
Pursuant to Colorado Rule of Civil Procedure 98(f)(2), Defendant The Vail Corporation
(Vail) moves to transfer this action from the District Court, Broomfield County to the District
Court, Eagle County, Colorado. As set forth below, both the ends of justice and witness
convenience dictate that this case be tried in Eagle County.

In his June 17, 2014 Summary Judgment Order (Order), Judge Melonakis
acknowledged that ski operators are immune from liability for avalanches under the Ski Safety
Act, as avalanches are inherent dangers and risks of skiing. Order at 4, citing Fleury v. Intrawest
Winter Park Operations Corp., 2014 COA 13. Nevertheless, the Court at that time declined to
grant summary judgment for either party, concluding that the finder of fact must resolve issues
about the reasonableness and foreseeability of skiers entering the closed Upper Prima Cornice
trail through the Lower Prima Cornice gate. Order at 8-9. To fairly resolve these key factual
issues, the fact finder must observe firsthand and in person the most important component of the
casethe terrain and surrounding topographical elements of the Upper and Lower Prima
Cornice trails, the site of the accident. The proximity of this evidence on Vail Mountain to an
Eagle County courthouse weighs heavily in favor of a transfer.
Moreover, all or nearly all identified fact witnessesincluding Plaintiffslive or work
in Eagle County.
Finally, the District Court in Broomfield County has yet to set a trial date and placed all
judicial proceedings in the case on hold in early October, 2014. And, importantly, the case will
soon be reassigned to a new judge, regardless of whether the case is tried in Broomfield or Eagle
County. These unique circumstances make now an appropriate and opportune time to consider
the ends of justice and the convenience of the identified witnesses, and transfer this case to Eagle
County.
Certificate of Compliance with C.R.C.P. 121 1-15(8)
Pursuant to Colorado Rule of Civil Procedure 121 1-15(8), Vail certifies that it
conferred with Plaintiffs counsel regarding this Motion by email on December 31, 2014, and by
telephone on January 2, 2015, and January 7, 2015. Plaintiffs oppose the relief requested by this
Motion, that is a transfer of venue to Eagle County.
BACKGROUND
On January 22, 2012, Plaintiffs son, Taft Conlin, died in an avalanche after he hiked
more than 300 feet into closed terrain on the Upper Prima Cornice trail on Vail Mountain in
Eagle County, Colorado. Plaintiffs filed a Complaint against Vail in Broomfield County, where
Vails corporate offices are located, alleging that Vails employees negligently failed to post
sufficient warnings, despite, among other things, closing the entrance to Upper Prima Cornice.
On June 17, 2014, Judge Melonakis issued an Order denying both parties motions for
summary judgment. Citing Fleury, the Court recognized that the Ski Safety Act immunized Vail
from liability under Sections 112 and 103 of the Colorado Ski Safety Act as an avalanche is an
inherent danger and risk of skiing. See Order at 3-4. The Court declined to grant Vail summary
judgment at this stage, however, finding that disputed issues of fact remained as to whether
Vails closure of the Upper Prima Cornice trail was sufficient under Section 107 of the Ski
2

Safety Act. 1 Id. at 8-9. Specifically, the Court questioned whether it was reasonably
foreseeable that the lower gate would be used by skiers to access the Upper Prima Cornice
trail . . .. Id. at 8. 2
Judge Melonakis ruling makes clear that this case is, first and foremost, a case about the
Prima Cornice trails. The disputed facts highlighted by the Order focus on the primary piece of
evidence in this casethe unique terrain and topography of Upper and Lower Prima Cornice.
And these, of course, exist immovably on Vail Mountain in Eagle County. Among other things,
at issue in this case will be the reasonableness of Conlins decisions on January 22, 2012, and
Vail Ski Patrols ability to foresee and predict those decisions. Thus, the trial will involve,
among other things, an examination of Vail Ski Patrols knowledge and expectations of what a
skier should and would see and understand in and around that terrain. Further, the finder of fact
will have to consider the physical positions of the posted closure signs and ropes at the top and
along the edge of the Upper Prima Cornice trail, and review the information available to Conlin
when he skied past those closure ropes and signs and decided to hike up more than 300 feet and
ultimately ski down the closed, Upper Prima Cornice trail. Finally, a site visit is essential to the
proper administration of justice in this case as it is the only way for the fact-finder to fairly and
accurately assess other relatedand crucially importantissues of traditional ski routes,
traverses, trail markings, lines of sight, relative distances, gravitational fall-lines, slope, and cliffs
and other permanent natural obstacles, all within the context of Vail Mountain as a whole.
In addition, and no less importantly, nearly all of the witnesses with knowledge of the
disputed facts are located in Eagle County. Specifically, almost all of the eyewitnesses to the
event live in Eagle County. Plaintiffs themselves are residents of Eagle County. And all Vail
personnel responsible for relevant decisions related to the Upper and Lower Prima Cornice trails
on January 22, 2012, reside and work in the Vail area in Eagle County. Indeed, on the other side
of the coin, no significant identified witness or potential witness resides in Broomfield County.
ARGUMENT
Colorado Rule of Civil Procedure 98(f)(2) provides that the court may, on good cause
shown, change the place of trialwhen the convenience of witnesses and the ends of justice
would be promoted by the change. Indeed, the Court may change the place of trial under Rule
98(f)(2) at any time in its discretion. See C.R.C.P. 98(e); Tillery v. District Court, 692 P.2d
1079, 1083 (Colo. 1984) (A discretionary change of venue under C.R.C.P. 98(f)(2) is not
restricted by the time of filing . . ..).
1

The Parties do not dispute that Vail appropriately placed a Closed rope and sign at the top of Upper Prima
Cornice and ran a Closed rope along the top edge of Upper Prima Cornice down to the entrance to Lower
Prima Cornice.

In describing the Courts Order, Vail is simply stating what Vail understands to be the current law of the case.
Vail is not adopting or endorsing this position, and reserves all rights to seek reconsideration before or during
trial, and/or reversal of this portion of the Courts Order on appeal.

To successfully change venue, the movant must show, through affidavit or evidence, the
identity of the witnesses, the nature, materiality and admissibility of their testimony, and how the
witnesses would be better accommodated by the requested change in venue. When the movant
makes such a showing, the party opposing the change must at least balance the showing made by
the moving party. Otherwise, the motion should be granted. Colorado Dept. of Highways v.
District Court, 635 P.2d 889, 891 (Colo. 1981) (internal citations and quotations omitted). To
the greatest extent possible, consistent with specific venue provisions and the prompt disposition
of judicial business, courts should attempt to accommodate the litigants and their witnesses. This
accommodation extends to the place of trial. Id. at 892 (quoting Bacher v. District Court, 527
P.2d 56, 58-59 (Colo. 1974). Moreover, better access to evidenceincluding site visits
supports a claim that a venue change is in the interest of justice. See e.g. Allen v. Sheraton
Corp., 1980 U.S. Dist. LEXIS 16755, *5 (N.D. Ill. May 20, 1980) (finding a change of venue in
the interest of justice, in part, because the fact that the building which is the subject of this
lawsuit is in Massachusetts and would be available for a site visit by the jury buttresses the
defendants claim that Massachusetts is the better forum.); Martensen v. Koch, 2013 U.S. Dist.
LEXIS 125582, *29-*33 (N.D. Ca. September 3, 2013) (citing ease of access to sources of proof,
including a visit to the site of the incident at issue, in support of holding that a transfer of venue
to the District of Colorado was in the interest of justice and convenience).
Both the ends of justice and witness convenience dictate changing the place of trial in this
case. Eagle County is where the Prima Cornice trails are located and where Taft Conlin skied on
January 22, 2012. Eagle County is where he made the decision to bypass the closures, ropes, and
signs and hike up to Upper Prima Cornice. Eagle County is where almost all of the relevant
witnesses resideincluding eyewitnesses to the event. Eagle County is where the Vail Ski
Patrol witnesses live and work. And Eagle County is where Vails supposed negligence, if any,
occurred. Additionally, given the facts of the case and the issues involved, a visit to the site of
the accident will substantially aid the fact-finder in deciding the relevant issues, and the lack of
such a site visit would materially prejudice Defendant. A site visit is therefore necessary, and
would be substantially less burdensome on the parties, the jury, and the Court if the trial is in
Eagle County.
A.

The Ends of Justice Weigh In Favor of a Transfer of Venue to Eagle County

It is virtually impossible to understand the relevant topography of the Upper and Lower
Prima Cornice trails without seeing them firsthand. To properly determine the disputed facts and
judge the credibility of the various witnesses, the fact-finder must actually see what Vail
Mountain skiers and patrollers would see, including (1) where and how the Upper Prima Cornice
entrance was closed; (2) where and how the area atop Upper Prima Cornice was roped off; (3)
the steepness of the extreme terrain of the Prima Cornice trails and how cliffs and other
permanent natural obstacles shape the topography; (4) where and how a skier would have to
climb to access the closed Upper Prima Cornice trail from the gate above the Lower Prima
Cornice trail; and (5) the slope that Taft Conlin identified, climbed to, and ultimately decided to
ski. In addition, given this Courts focus on Vails ability to foresee that skiers would ski down

past, and then hike up back into this particular closed run, the fact-finder must observe what Ski
Patrol observes on a daily basis, including the general topography of the entire area, the routes
skiers ski in the area, relevant signs, signals, and rules patrollers expect skiers in the area to obey,
and what indications that skiers hiked or skied into closed terrain ski patrollers might or might
not be in a position to see. The fact-finder must further understand the scope of Ski Patrols
responsibility in patrolling and controlling more than five thousand acres of skiable terrainall
of which might be accessed by skiers from a variety of sides or angles, including skiers cutting
through trees or other unmarked paths. Although helpful, maps and photographs can only
convey a limited understanding of this terrain. For example, varied sightlines (where specific
items are visible from), continuous sightlines (how long things are visible to passersby), and
steep grades, among other things, are all essential elements to determine of what Taft Conlin and
Ski Patrol were or were not aware, and each of these elementsessential for a finder of fact to
considerare difficult or impossible to display effectively without seeing and experiencing the
evidence firsthand. As discovery taken to date dictates, and as the Courts recent Order
explains, key facts in this casemost importantly the site of the accident itselfsit permanently
in Eagle County.
Because proper determination of these facts is essential to a fair and just result, a visit to
the site of the accident is necessary in this case. Nevertheless, Vail is not, at this time or through
this Motion, asking the Court to determine that a site visit must be conducted. If Plaintiffs
disagree that a site visit is necessary, the parties can separately and completely brief that issue at
the appropriate time, after a trial date is set. But regardless, without dispute, moving the case to
Eagle County significantly decreases the burden of a potential site visit on the Court, the parties,
and the jurors, as Broomfield is more than one hundred miles from Vail. Protecting against that
burden promotes the ends of justice in this matter. And now is the appropriate time to change
venue in support of those ends, for the additional reasons set forth below.
B.

Witness Convenience Weighs In Favor of a Transfer of Venue to Eagle County

Witness convenience also strongly favors trial in Eagle County. The officials who
investigated the incident, including the Eagle County Sheriffs and investigators from other
agencies, all live and/or work in or near Eagle County. See Ex. A, Rust Aff., 8; Ex. B, May
Aff., Table 1. Similarly, Taft Conlins friends who interacted with him on January 22, 2012,
and/or witnessed the accident, including Reed McInerny, Patrick Scruggs, Dylan Hardenbergh,
and Peter Ferraro, reside in Eagle County. See Ex. B, May Aff., 5 and Table 1. Indeed,
Plaintiffs themselves are residents of Eagle County. See Compl., 1 (Plaintiffs Louise H.
Ingalls and Stephen E. Conlin are residents of Eagle County, Colorado). And, as explained
in the attached Affidavit of Julie Rust, Vail Ski Patrol Director, Vail Ski Patrol is responsible for
all relevant on-mountain duties and decisions, including duties and decisions related to closure of
Upper Prima Cornice on January 22, 2012. Ex. A, Rust Aff., 4. Accordingly, the Vail
employees with direct knowledge of the relevant acts in this case are members of the Vail Ski
Patrolall of whom live and/or work in Eagle County. Id. at 5-6. Thus, all or nearly all

relevant fact witnesses identified by either party in this case live or work in or near Eagle
County.
In contrast, Vail knows of no key witnessfor either sidewho resides in Broomfield
County.
Witness convenience is further evidenced by Table 1 attached to Exhibit B, which lists
the potential witnesses deposed by each side in the litigation to datealong with the location of
the depositionas well as additional witnesses Vail anticipates will be deposed going forward.
As Table 1 demonstrates, approximately twenty-five (25) likely fact witnesses identified as
possessing relevant information by either or both parties because they (1) were involved in the
actions that are challenged by Plaintiffs, (2) witnessed the accident, or (3) were involved in the
investigation of the accident, work and/or reside in or near Eagle County. None works or resides
in Broomfield County. Table 1 therefore confirms that Eagle County is the locus of this trial,
and by far the most convenient location for the vast majority of, if not all, likely fact witnesses.
In addition to the burden placed upon the jurors and the Court for a necessary site
inspection on Vail Mountain, trying this case in Broomfield would therefore result in significant
hardship to the proposed witnesses related to travel time, potential weather delays, cost, and time
away from work, among other things. See e.g., Ex. A, Rust Aff., 9. Accordingly, there is no
doubt that, in addition to the interests and ends of justice, the witnesses would be better
accommodated by the requested change in venue.
C.

Plaintiffs Suffer No Prejudice from a Transfer of Venue to Eagle County

To avoid transfer, Plaintiffs must now at least balance this showing to maintain venue
in Broomfield County. Plaintiffs cannot do so, as Plaintiffs will suffer no meaningful prejudice
as a result of trying the case in Eagle County.
As noted above, the Court has the discretion to grant a change of venue under Rule
98(f)(2) at any time. See C.R.C.P. 98(e); Tillery, 692 P.2d at 1083 (A discretionary change of
venue under C.R.C.P. 98(f)(2) is not restricted by the time of filing . . ..). And such a change of
trial venue should be granted when the witnesses are better accommodated by the change. See
Colorado Dept. of Highways, 635 P.2d at 891. No trial date is currently set in Broomfield.
Indeed, the parties stipulated, and the Court ordered, that all judicial proceedings are in suspense
in this case until the Colorado Supreme Court acts on the Fleury case. See Order Regarding
Course of Proceedings, October 10, 2014. In addition, the parties were informed that a new
judge soon will be assigned this case, regardless of whether the case is tried in Broomfield or
Eagle County.
Now is therefore a uniquely opportune time to transfer venue. A transfer is warranted,
and should be granted in any event, because Plaintiffs cannot cite any interest sufficient to
balance the need for and convenience of an Eagle County trial. Granting an immediate transfer

additionally alleviates any threat to even the most basic interest in continuity, given the current
hold on proceedings and impending change of judge. And an immediate transfer would further
promote judicial efficiency by only requiring one judge (the Eagle County judge) to get fully up
to speed on the prior proceedings in this case. Accordingly, this Court should change the place
of trial to Eagle County.
CONCLUSION
Given the facts and remaining claim at issue, a visit to the accident site on Vail Mountain
is essential to the fair administration of this case, and the burden of accessing that site is
substantially reduced if the trial is held in Eagle County. Moreover, the key witnesses in this
case reside in Eagle County, not in Broomfield. Accordingly, the interests of both justice and the
relevant witnesses are served by moving the trial to the appropriate venueEagle County,
Colorado. No interest in trying the case in Broomfield County is sufficient to tip the scales in the
other direction, and now is an opportune time to make the change. Accordingly, Vail
respectfully requests that the Court grant this Motion and transfer this case to Eagle County
District Court.

Dated: January 9, 2015

Respectfully submitted,

By:

Robert C. Blume
Robert C. Blume (#37130)
GIBSON, DUNN & CRUTCHER LLP
1801 California Street, Suite 4200
Denver, CO 80202-2642
Telephone: 303.298.5700
Facsimile: 303.298.5907
rblume@gibsondunn.com
Attorney for The Vail Corporation

CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of January, 2015, I caused a copy of the foregoing
MOTION TO TRANSFER CASE TO EAGLE COUNTY DISTRICT COURT to be served upon
the following via ICCES.
James G. Heckbert, Esq.
Burg Simpson Eldredge Hersh & Jardine, P.C.
40 Inverness Drive East
Englewood, CO 80112
Telephone (303) 7925505
jheckbcrt@burgsimpson.com

M. Scott Campbell
M. Scott Campbell