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
REPLY IN SUPPORT OF VAILS MOTION TO
TRANSFER CASE TO EAGLE COUNTY DISTRICT COURT
Plaintiffs Response to Vails Motion to Transfer Case to Eagle County District Court
(Response) offers no response at all. It misstates (or completely misses) the relevant law and
fails to balance Vails showing that a transfer is warranted. Unable to confront Vails arguments

and facts directly, Plaintiffs treat their Response like a press release, mischaracterizing much of
the deposition testimony and a previous order from this Courtall presumably in an effort to
paint Vail and the men and women of Vails Ski Patrol in a bad light. But Plaintiffs efforts are
transparent and cannot hide the lack of substance in their arguments. Accordingly, this Court
should grant Vails motion to transfer venue to Eagle County.
INTRODUCTION
As explained in detail in Vails Motion and accompanying affidavits, both witness
convenience and the ends of justice dictate that this case should be tried in Eagle County. First,
virtually every identified fact witness lives or works in Eagle County. Second, transferring the
case to Eagle County facilitates a visit to the site of the accidenta crucial piece of evidence in
this caseif and when a site visit is ultimately ordered by the appropriate court.1 And third, the
unique timing of this Motion presents an opportunity to move this case without prejudice to
either party or to the Court, as the case is not yet set for trial and is in the process of transitioning
from one presiding judge to another.
Plaintiffs do not seriously contest the first point of witness convenience. Instead,
Plaintiffs seek to avoid it by arguing that Vails Motion is not timely or that the Court should
ignore the convenience of Vails employee witnesses. Both arguments are contrary to Colorado
law. See, e.g., 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); Colorado Dept

Vail reiterates that at this time it is not requesting a determination that a site visit is necessary. Indeed, because
a site visit is essential for a full and complete understanding of the facts in this case, additional facts will be
necessary before a court determines the issue. In fact, given Plaintiffs apparent opposition, additional briefing
on that subject will be needed. The point made here, however, is simply that the site of the accident is an
important piece of evidence in this case, and transferring this case to Eagle County will facilitate a visit to that
site if and when the appropriate court authorizes that visit.

of Highways v. District Court, 635 P.2d 889 (Colo. 1981) (instructing the district court to
consider the defendant and its employees convenience in deciding whether to grant a Rule
98(f)(2) motion). Plaintiffs also argue that Vail has not set forth the nature and admissibility of
the witnesses testimony. This argument is not only legally wrong, see In re Hagan v. Farmers
Ins. Exchange, 2015 CO 6 (January 26, 2015), but factually disingenuous. The relevant
witnesses and testimony in this case are not seriously in dispute, and Plaintiffs own Response
concedes the materiality of the relevant witnesses testimony. Finally, Plaintiffs make no effort
whatsoever to balance Vails showing and fail to identify any witness on their side who would be
inconvenienced by an Eagle County trial. Accordingly, Plaintiffs effectively concede the witness
convenience point by default, which should end the debate about the propriety of a transfer.
Nevertheless, Plaintiffs also argue that a visit to the site of the accident is neither relevant
nor material in this case. This response is unavailing. Indeed, all of the relevant events occurred
on Vail Mountainwhich is significantly closer to the Eagle County Courthouse than the
Broomfield County Courthouseand moving the trial to Eagle County will serve the interests of
justice by facilitating a site visit.
Finally, Plaintiffs effectively concede Vails third point as they fail to articulate any
significant prejudice that will result from transferring this case to Eagle.
Accordingly, because Plaintiffs fail to meet their burden to at least balance Vails
showing that a trial in Eagle County would be more convenient for the witnesses in this case, this
Court should take advantage of the current status of this case and transfer it to Eagle County.

BACKGROUND
Plaintiffs open their Response with a lengthyand almost entirely irrelevantFactual
Background section that misstates numerous facts regarding this case. For example, Plaintiffs
state, without citation, that Vail Ski Patrol managers have admitted that if people were sidestepping uphill from the open lower Prima Cornice gate, when the upper Prima Cornice gate was
closed, Vail Ski Patrol would have been aware of that practice, and that deposition testimony,
and the affidavits of long-time Vail Mountain skiers, show that Vail knew or should have known
the skiing public had been accessing that terrain in the same manner for decades. Response at
2.
But, in fact, the relevant sworn testimony directly rebuts these assertions. Instead of
showing that Vail knew or should have known that the skiing public regularly hiked up the
path from the lower gate, the ski patrollers actually testified that they did not know of, and had
never seen or heard of, anyone hiking up from the lower gate towards the upper gate while the
upper gate was closed. See, e.g., Dep. of J. Rust at 168:21-24 ([W]e have no history of people
hiking up in that area I dont have any prior knowledge of people hiking up into that area.);
Dep. of K. Latchford at 145:2-22 (I havent seen tracks or seen people doing that.), 147:1516 (My experience is that people dont go in and hike up that gate.); Dep. of W. Mattison at
26:1-9 (testifying he had no knowledge of people hiking up from the lower gate).2
Similarly, Plaintiffs pretend that by allowing them to plead a claim for punitive damages,
Judge Melonakis concluded that Vail acted egregiously and recklessly. Response at 3. But, of

Relevant excerpts from these depositions are attached as Exhibit C to this Reply. Full transcripts from each
deposition were filed as Exhibits 1 (Dep. of J. Rust), 11 (Dep. of W. Mattison), and 19 (Dep. of K. Latchford) to
Plaintiffs Motion for Summary Judgment, March 3, 2014.

course, as Judge Melonakis Order reveals, the Court made no such finding. Instead, the Court
merely determined that Plaintiffs could amend their Complaint simply to state a claim for
punitive damages. See Order, September 16, 2014, at 5. Of course, any determination of the
facts underlying that claim is a long way off.
Setting aside these mischaracterizations, Plaintiffs statement of the Factual
Background acknowledges this: that this trial will focus on at least two key points: (1) the
reasonableness of Taft Conlins decisions on January 22, 2012, when he hiked laterally on skis
more than 300 feet up, and then skied down, the closed Upper Prima Cornice trail,3 and (2) Vail
Ski Patrols ability to foresee and predict those decisions. See Response at 1-2.
ARGUMENT
I.

Vails Motion is Timely.

Plaintiffs argument that Rule 98(e) sets a temporal limit of 42 days after the case is at

issue for filing a motion to change venue under Rule 98(f)(2), see Response at 4, directly
contradicts Colorado Rules and case law.
Rule 98(f)(2) states that [t]he court may, on good cause shown, change the place of trial
. . . [w]hen the convenience of witnesses and the ends of justice would be promoted by the
change. C.R.C.P. 98(f)(2). Rule 98(e), in turn, specifically states that [a] motion under section
(c)(3), (f)(2), or (g) of this Rule, shall be filed prior to the time a case is set for trial, or the right
to have venue changed on said grounds is waived, unless the court, in its discretion, upon
motion filed or of its own motion, finds that a change of venue should be ordered. C.R.C.P.

Plaintiffs apparently take exception to Vails reference to the Upper Prima Cornice and Lower Prima Cornice
trails in its Motion. See Response at 7, n.1. Vail notes that this is the terminology adopted and used by the
Court in its Order on Summary Judgment. See Order, June 17, 2014. Vail uses these same terms for
consistency and clarity.

98(e) (emphasis added). Thus, Rule 98(f)(2) grants courts the discretion to change venue based
on the convenience of witnesses and the ends of justice, and Rule 98(e) specifically authorizes
courts to exercise that discretion at any time, based on a motion of a party or otherwise. And if
this were not sufficiently clear from the face of the Rules, the Colorado Supreme Court has
spoken directly to this point:
[T]ransfer under C.R.C.P. 98(f)(2) is discretionary with the court, depending on the
convenience of the witnesses and the ends of justice . . . A discretionary change of venue
under C.R.C.P. 98(f)(2) is not restricted by the time of filing or by the necessity for the
consent of all parties to the request.
Tillery, 692 P.2d at 1083 (emphasis added); Motion at 3.4
Accordingly, Rule 98(f)(2) does not preclude the present request at the present time.
Indeed, Vails Motion to Change Venue is directly authorized by the Colorado Rules, and the
Court has discretion to, and should, grant it.5
II.

This Court Should Consider the Inconvenience to Vails Employees.

Plaintiffs next argumentthat the Court cannot consider the convenience of Vails

employeesalso directly contradicts established Colorado law.

Not only was this binding Supreme Court precedent, which is directly on point, cited in Vails Motion, but
Plaintiffs themselves cite Tillery in their brief. See Response at 5.

Although unnecessary given the language in Rule 98(e) and Tillery, it is worth noting that Plaintiffs argument
fails even if the Court ignored that language and focused only on the preliminary clause of Rule 98(e) (as
Plaintiffs do). Improperly (and inexplicably) taking that initial clause in isolation, Plaintiffs argue that the
prescription that a motion shall be filed prior to the time a case is set for trial, read in conjunction with Rule
16(b)(4), mandates that such motions be filed no later than forty-two days after trial is set. Response at 4. But
this argument ignores the plain language of both Rule 98(e) (which references the fact of the case being set for
trial, rather than a number of days after the case is at issue) and Rule 16(d)(4) (which merely sets a presumption
that the responsible attorney shall set a case for trial within forty-two days unless otherwise ordered by the
Court). In this case, the Court has otherwise ordered and the case is not set for trial. Accordingly, Vails
Motion would be timely even if there were a temporal limitation on filing a Rule 98(f) motion, which there is
not.

Plaintiffs make the blanket assertion that Colorado appellate courts have not considered
whether the convenience of a partys employee witnesses is a proper consideration for change of
venue, . . .. This is false. The Colorado Supreme Court directly addressed this issue in Dept of
Highways, a well-established and long-standing case applying Rule 98(f), and again a case cited
in Vails Motion. 635 P.2d 889; Motion at 4. In Dept of Highways, the department filed a
motion to change venue, supported by an affidavit listing fifteen witnesses who lived in Kit
Carson County, including six of the departments employees. Id. at 891. In reversing the trial
courts decision not to consider witness convenience, the Supreme Court specifically explained:
The inconvenience to the departments witnesses in traveling from Kit Carson County to
Denver, a distance of over 150 miles, coupled with the imposition of a Denver trial on the
witnesses employment responsibilities and time, were matters which the respondent court, in its
sound discretion, should have weighed in deciding the motion. Id. at 891-92 (emphasis added).
And just last Monday, January 26, 2015, the Colorado Supreme Court reaffirmed this
analysis as an exemplar of an affidavit properly focused on inconvenience to the moving party:
Department of Highways, for instance, provides an exemplar of an affidavit that contains
the requisite information. There, a motorist who was injured in an accident due to a hole
in the pavement on an exit ramp filed a negligence action against the Department of
Highways in Denver County. 635 P.2d at 890. The Department filed a motion to change
venue to Kit Carson County, which it supported with an affidavit by its assistant
maintenance superintendent, who investigated the accident. The affidavit listed the
names and addresses of 15 witnesses whom the Department (not the plaintiff) intended to
call at trialsix of whom were employees and all of who resided in Kit Carson County.
The affidavit contained a brief description of their testimony. It averred the Department
operated with very few employees due to budget limitations and it would be impossible
to maintain the local roads with these employees attending a trial in Denver, over 150
miles away; thus, the inconvenience was to the Department and not to the plaintiff. We
deemed this affidavit sufficient to justify a change of venue.

Hagan, 2015 CO 6, 31 (emphasis added). Indeed, Hagan confirms that the convenience of
Vails witnesses is the appropriate focus of Vails Motion. Id. at 29.6
Moreover, the inconvenience of a Broomfield County trial is not a burden unique to
Vails employees. No identified fact witnesses lives or works in Broomfield County, and
virtually every potential witnessincluding Plaintiffs (Louise Ingalls and Stephen Conlin),
Vails employees (Chris Jarnot, Julie Rust, William Mattison, John McInerny, Dave LaBelle,
Kerry Kuntz, Kevin Latchford, Paul Stumpf, Wayne Miller, Keith Reihe, and Drew Warkentin),
and third parties (Reed McInerny, Patrick Scruggs, Dylan Hardenbergh, Peter Ferraro, Gordon
Hardenbergh, Maddie Conlin, Trygve Verke, Davey Goruch, Garry Pesso, Scott Toepfer, and
Ethan Greene)lives or works in or near Eagle County. See Ex. B to Motion (Affidavit of Craig
May), Table 1.
III.

Depositions Are Not a Substitute for Live Testimony.

Plaintiffs next argue that venue should not be changed because Vail has failed to

produce evidence that the video depositions of its employee and independent witnesses are

Again, even if this Court ignored the binding Colorado Supreme Court case law directly rebutting Plaintiffs
position, as Plaintiffs do, Plaintiffs argument still fails as the non-binding case law submitted by Plaintiffs does
not support their position either. For example, after incorrectly stating that Colorado appellate courts had never
considered the issue, Plaintiffs state that the United States District Court for the District of Colorado and the
overwhelming majority of other jurisdictions have held that the convenience of a partys employees is not a
proper subject for the Court to consider when determining whether a change of venue should be granted.
Response at 5 (emphasis added). Plaintiffs then immediately cite two Colorado District Court decisions,
neither of which supports that proposition. In the first, Wood v. Houghton Mifflin Harcourt Publ. Co., the
District Court noted that the defendant argued for a change of venue based on the convenience of its witnesses,
[m]ost, if not all of whom were defendants employees and lived in Illinois, but concluded that the witness
convenience factor was at best a wash as the plaintiff asserted in response that he and several of his
witnessesthat are not his employeeslive in Colorado. 2008 U.S. Dist. LEXIS 83662, *6 (D. Colo., May
19, 2008). Similarly, in Wolf v. Gerhard Interiors, LTD, the Magistrate considered the fact that defendant and
his nine other out-of-state witnessesincluding employeeswould be inconvenienced by a Colorado trial, but
concluded they would not be overly inconvenienced, noting that twenty-six of the plaintiffs listed witnesses
resided in Colorado. 399 F. Supp.2d 1164, 1167-68 (D. Colo. 2005). In short, the Court directly and explicitly
considered the employees convenience in both cases.

inadequate at trial. Response at 6. This argument is entirely irrelevant. Vail has never asserted
that its witnesses would be unavailable for trial (making deposition testimony potentially
admissible under C.R.E. 804(b)(1)), nor is unavailability the relevant standard for changing
venue under Rule 98(f)(2). Rule 98(f)(2) considers witness convenience. Vails witnesses will
testify at trial, and, as explained in Vails Motion and accompanying affidavits, will be
significantly inconvenienced if required to testify in Broomfield County.
IV.

Vail Identified the Nature and Admissibility of the Relevant Witnesses

Testimony, And Plaintiffs Concede It.
Finding no law to support its position that Vail cannot bring a motion to change venue

under Rule 98(f), or that Vails witnesses should be excluded from the inquiry, Plaintiffs resort
to arguing that Vails affidavits are not sufficiently specific to support the required finding that
the witnesses listed by the Defendant are material to the case, and that their testimony is
admissible. This argument has no merit.
The Hagan case again provides guidance. In addition to pointing to the Dept of
Highways affidavit as an exemplar, Hagan specifically expands, for the first time, on the
requirement that the moving party must show the nature, materiality and admissibility of the
witnesses testimony, explaining that the party must provide a general summary of what the
key witnesses testimony will cover . . . [sufficient to] provide the reviewing court with enough
information to understand whether the witnesses are important or peripheral. Hagan, 2015 CO
6, 37-39. This summary need only be at a most basic level. Id. at 40.
The Affidavit of Vails counsel, Craig May, lists every fact witness deposed in this case,
and every fact witness that Vail anticipates at this point will be deposed in this case. That
Affidavit demonstrates that most of these witnesses work and/or live in Eagle County, and that
9

none of them work and/or live in Broomfield County. See Ex. B to Motion (Affidavit of Craig
May). And Plaintiffs do not challenge the fact that these witness likely will testify at trial. Nor
do Plaintiffs contest that these witnesses live and/or work in or near Eagle, or were deposed in or
near Eagle.
Next, the Affidavit of Julie Rust, Director of Vail Ski Patrol, specifically explains that
Vail Ski Patrol investigated the accident at the center of this case, and is responsible for marking,
opening, and closing all ski trails on Vail Mountain, including Prima Cornice. See Ex. A to
Motion (Affidavit of Julie Rust). The Affidavit further specifically lists, by name, twenty-one
Vail ski patrollers with first-hand knowledge of issues relevant to this lawsuit because they
responded to the incident, or because they have personal familiarity with the deceased, his
family, or with the eye-witnesses to the incident, or because they worked on Patrols
investigation of the incident. Id. at 5-6. Thus, the Affidavit identifies the witnesses and
explains the materiality and admissibility of their testimony as first-hand observers with personal
knowledge of facts relevant to this case. The Affidavit further avers that all of these patrollers
live and work in or near Eagle County during the ski season, and most live and work in or near
Eagle County during the off season. Id. at 5. None live or work in or near Broomfield County
at any time of year. Id. at 6. Finally, as Director of Ski Patrol, Ms. Rust attests on behalf of
the needs of the Vail Ski Patrol, it would be significantly more convenient for the Ski Patrol
witnesses for the trial in this case to take place in Eagle County rather than in Broomfield
County, explaining that travel time, weather delays, cost, and time away from work are all
factors contributing to the increased burden a Broomfield County trial would impose on Ski

10

Patrol and its employees. Id. at 9; see also Ex. D to Reply (Affidavit of William Mattison),
4-8.
Indeed, Ms. Rusts Affidavit closely resembles the affidavit submitted in Dept of
Highways, described above and recently pointed to by the Colorado Supreme Court as an
exemplar of an affidavit sufficient to justify a change in venue. See Hagan at 31. Specifically,
a supervisor lists specific, relevant employees by name along with their place of residence,
briefly describes the relevance of those employees testimony, and explains why having those
employees attend a trial more than 100 miles away would be an inconvenient burden to both the
individual employees and their employerVail.
Plaintiffs Response concedes that Ms. Rusts Affidavit provides this information. See
Response at 7 (stating that Vails Affidavit identifies the general subject matter of what it
claims some of its employees may testify to.). More importantly, Plaintiffs Response admits
the materiality of the ski patrollers testimony in this case. See, e.g., Response at 8
(acknowledging that, under the Courts summary judgment Order, Vail Ski Patrols testimony as
to its knowledge (or lack of knowledge) of hiking on Prima Cornice constitutes key evidence).
Accordingly, the materiality or admissibility of the ski patrollers testimony is not in actual
dispute in the case.
Finally, Hagan confirms the consistent and obvious theme from previous cases that,
while not necessarily dispositive, distance and travel time factor into convenience. Id. at 43.
Further, it acknowledges that, while distance and travel time can be nebulous, this Court has not
hesitated to find inconvenience in cases involving significant travel differentials in the 150-mile
to 200-mile range. Id. at 48. Here, Vails witnesses (and others) would have to travel the

11

100-mile distance through the mountains from Eagle County to Broomfield County. Again,
there is no serious dispute that an Eagle County trial would be more convenient for Vails
witnesses.7
Accordingly, Ms. Rusts Affidavit is sufficiently detailed to satisfy Vails burden of
showing the identity of the witnesses, the nature, materiality, and admissibility of their
testimony, and how witness would be better accommodated by the requested change in venue.
V.

Plaintiffs Fail to Balance Vails Showing of Witness Inconvenience.

As explained in Vails Motion, after Vail demonstrates witness inconvenience, the party

opposing the change must at least balance the showing made by the moving party. Otherwise,
the motion should be granted. Motion at 4, quoting Dept of Highways, 635 P.2d at 891
(emphasis added).
As detailed above, Vails Motion makes the requisite preliminary showing, shifting the
burden to Plaintiffs to at least balance that showing. Plaintiffs have not done so. Indeed,
Plaintiffs make no attempt at all to explain how or why an Eagle County trial would be
inconvenient for Plaintiffs, who are Eagle County residents, or for any of their witnesses. The
closest Plaintiffs come is a bare statement that Vail does not have standing to argue that a trial in
Eagle Countywhere Plaintiffs residewould be more convenient for Plaintiffs. See Response
at 5. That may be so, but Plaintiffs failure to explain how an Eagle County trial would

Hagan also confirms that there is no requirement to include in affidavits specific home or work addresses for
identified witnesses, but recognizes that in some cases addresses could be helpful to the court where contested
venues are close together and witnesses might actually live closer to the alternative venue. See Hagan, 2015
CO 6, 46. In this case, the relevant affidavits state that Vails witnesses live and/or work in or near Eagle
County, which is not proximate to Broomfield. See Exs. A and B to Motion. Specifically, Vails Ski Patrol
employees all work on Vail Mountain in Eagle County. Nonetheless if, pursuant to Hagan, providing specific
residential addresses for Vails patroller employees would assist this Court, Vail would be pleased to provide
them.

12

inconvenience Plaintiffs or any of Plaintiffs witnesses is as revealing as it is devastating to

Plaintiffs Response.
None of this is surprising, of course, because, as already explained in Vails Motion and
affidavits, almost all of the witnesses in this casefor both sideswork and/or live in Eagle
County, and none work or reside in Broomfield. See Motion at 5-6; Ex. A to Motion (Affidavit
of J. Rust); Ex. B. to Motion (Affidavit of C. May); Ex. D to Reply (Affidavit of W. Mattison).
An Eagle County trial will be more convenient for the relevant witnesses for both sides.
Accordingly, Plaintiffs have not balancedand cannot balanceVails required showing of
witness inconvenience and Vails Motion should be granted.
VI.

A Site Visit to Vail Mountain is Relevant and Material Evidence.

Colorado law dictates that Plaintiffs failure to balance Vails showing of witness

inconvenience is dispositive, and Vails Motion should therefore be granted. See, e.g., Dept of
Highways, 635 P.2d at 891; Hagan, 2015 CO 6, 26. Thus, Plaintiffs Response renders
superfluous the fact that moving the trial to Eagle County will further serve the interests of
justice by facilitating a visit to the site of the accident. Nonetheless, Plaintiffs extended attempt
to argue that a site visit is not relevant to this case falls flat.
Plaintiffs argue, at some length, that a site visit would be prejudicial in this case because
the scene may not be substantially similar to the scene at the time of the avalanche, noting, for
example, that [a] two-foot snowfall, or a light snowfall year, will substantially change the sight
lines, fall lines, and traditional ski routes in the Prima Cornice area. Response at 8. Plaintiffs
further contend that a site visit should not be granted because (1) Vail did not demand that Judge
Melonakis view the scene before ruling on summary judgment; (2) viewing the scene will be a

13

safety hazard for the jury; and (3) the parties can rely on photos and videos taken during the
investigation of the avalanche, and on Vails expert witnesss photos and videos taken after the
incident, to alleviate the need for a site visit. Response at 9. None of these arguments has merit.
First, and to be clear, Vail is not requesting a determination as to whether a site visit
should or should not be allowed at this time or through this Motion. Given Plaintiffs apparent
opposition to letting the fact-finder see Prima Cornice first-hand, this is a key issue warranting a
separate and independent set of briefs. Moreover, as Plaintiffs Response makes clear, this issue
is not yet ripe. Some of Plaintiffs arguments against a site visit (for example that the trial may
take place in the summer), Response at 9, are mere hypotheticals that will be resolved before any
site visit is scheduled. Vail will introduce evidence and argument to the Court supporting Vails
request for a site visit at the appropriate time. And Plaintiffs will have a full opportunity, at that
time, to respond.
That said, now is the appropriate time to change venues. The necessary transition to a
new judge in this casein Broomfield or Eaglepresents a unique opportunity to move the case
without generating even the normal loss of judicial efficiency associated with changing the
location of a trial. Again, Plaintiff does not contest this point. Because now is the best time to
change venues, it is also necessarily the time to consider the significance of a potential site visit,
if one should occur. And it is undisputed that, if and when the Court determines a site visit is
appropriate, that visit will be far less burdensome on a finder of fact in Eagle County than one in
Broomfield County.
Further, Judge Melonakis position in deciding the parties motions for summary
judgment is fundamentally different from the position the fact-finder will take in the trial in this

14

case. The summary judgment motions were, like all appropriately styled summary judgment
motions, based on facts that were not genuinely in dispute. The fact-finder at trial, in contrast,
under the standard set by Judge Melonakiss ruling, will need to determine any disputed facts
regarding the reasonableness of Taft Conlins actions and Vail Ski Patrols ability to foresee
those actions. As explained in Vails Motion, a site visit will significantly assist the fact-finder
in determining these facts and judging the credibility of the relevant witnesses. See Motion at 45. Accordingly, Vail did not insist that Judge Melonakis visit the site because a visit was not
critical at that stage of the proceedings.
Second, the argument that a site visit will be a safety hazard is an unsubstantiated and
premature red herring. Vail Mountain is open to the public and has both winter and summer
visitors tallying in the millions each year. The parties and the Court can determine any safety
precautions that might be necessary based on the conditions that exist at the time of the visit.
Third, Plaintiffs argue that the fact-finder should not visit the site because it will
necessarily look different from how it looked when Taft Conlin hiked up and skied down Upper
Prima Cornice. Response at 7.8 But the site does not have to appear identical for a site visit to
aid the finder of fact. See, e.g., Schnabel v. Waters, 549 P.2d 795 (Colo. App. 1976) (rejecting
defendants challenge to trial courts decision to allow jury to view a truck similar to the one
involved in the collision in a negligence action). And indeed, most things about the site will

Indeed, Plaintiffs argument that photos taken during the post-incident investigation, and photos and videos
taken by Vails expert after the date of the avalanche, are adequate to describe the scene and render a visit
unnecessary (Response at 9) proves too much. It may be true that the site could in some ways look different
during a site visit, but it is equally true, according to Plaintiffs logic, that the scene would have looked different
after the avalanche when the investigators took their photographs. Indeed, the scene may have looked different
when Vails expert photographed and videoed it. In the end, the scene may always look different in some ways
than it did at the exact time Conlin made his decision to ski in the closed, upper terrain. But this fact alone does
not decrease the evidentiary value of the site visit. See Ex. D (Affidavit of W. Mattison), 9-14.

15

remain essentially the same regardless of the timing of a visit, including the numerous items
cited in Vails Motion. See Ex. D to Reply (Affidavit of W. Mattison), 10-13. The fact-finder
will be able to see, for example, where and how the Upper Prima Cornice entrance was closed,
where and how Upper Prima Cornice was roped off, the steepness and extreme terrain of the
Prima Cornice Trails and how cliffs and other permanent natural obstacles shape the topography,
and where and how a skier would have to climb to access the closed Upper Prima Cornice trail
from the Lower Prima Cornice gate, among other things. Id. These facts, and others, are best
conveyed first-hand, will significantly aid the finder of fact, and exist regardless of the
conditions at the time of the visit. Id. at 10-14.
Accordingly, a site visit is likely warranted in this case and moving the trial to Eagle will
indisputably serve the interests of justice by facilitating that visit if and when a request for one is
granted.
CONCLUSION
Plaintiffs Response confirms that this case should be transferred to Eagle County for
trial. Vail has made the requisite showing that witness convenience dictates the change, and
Plaintiffs offer no evidence whatsoeveras they mustto balance that showing. All or nearly
all relevant witnesses reside in or near Eagle County, more than one hundred miles from
Broomfield County, rendering an Eagle County trial much more convenient. Moreover, an Eagle
County trial will serve the interests of justice by facilitating a visit to Vail Mountain, a crucial
piece of evidence in this case. Finally, given the current status of the casea new judge, no trial
date, and an overall pause in activity pending Colorado Supreme Court review of Fleury v

16

Intrawest Winter Park Operations, Corp., 2014 COA 13now is the most opportune time to
transfer the case without prejudice to any party.

Dated: January 30, 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

17

CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of January, 2015, I caused a copy of the foregoing
REPLY IN SUPPORT OF MOTION TO TRANSFER CASE TO EAGLE COUNTY DISTRICT
COURT to be served upon the following via ICCES.
James G. Heckbert, Esq.
Peter Burg, Esq.
Seth Katz, Esq.
Burg Simpson Eldredge Hersh & Jardine, P.C.
40 Inverness Drive East
Englewood, CO 80112
Telephone (303) 7925505
jheckbcrt@burgsimpson.com
pburg@burgsimpson.com
skatz@burgsimpson.com

Erin Alcock
Erin Alcock

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