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

A DEFENSE ATTORNEY'S PERSPECTIVE

by John E. Fagan

I was in the Reading Room at the University of Michigan Law Library in Ann Arbor when I first learned about the avalanche at Alpine Meadows. I recall reading the news in the newspaper since I had turned down a chance to work for Hancock, Rothert & Bunshoft, the law firm that undoubtedly would handle the lawsuits that arose after the avalanche. Two years later I accepted a job offer from Barry Bunshoft to work on the avalanche case. Little did I know what I was in for. The case was emotionally charged and bitterly contested. Contrary to popular belief, lawyers do have a heart, a soul and a conscience. The emotional ups-and-downs still linger with me to this day, particularly when I think about those who perished in the avalanche and the ones they left behind.

THE EXPERTS

My first task was to get to know Bob Blair and Jim Plehn, the ski patrol director and the avalanche hazard forecaster at the time the avalanche occurred. Both individuals had left the employment of the ski area after a dispute with management. While both of them initially were a bit hesitant to open up to me, I eventually developed a close working relationship with them, particularly with Jim Plehn. It was their responsibility to educate me, not only about the event but about avalanches in general and the history of avalanches and weather at Alpine Meadows. In turn, it was my responsibility to educate them about being witnesses.

My other main task was to retain experts for the defense. We had retained Norm Wilson, the former mountain manager and ski patrol director at Alpine Meadows, as an expert shortly after the avalanche. Norm provided considerable guidance in helping me select various experts for our defense team and in developing an overall strategy regarding what expert testimony we needed to present and how best to refute the anticipated testimony of the plaintiffs' experts. Since the plaintiffs had retained Ed LaChapelle, Art Mears, Freddy Schliess and Ron Perla, I needed to retain some heavyweights. Based primarily upon the recommendations of Wilson, Plehn and Blair, I contacted Peter Schaerer and David McClung from Vancouver, Chris Stethem from Whistler, Liam Fitzgerald from Snowbird, and Andre Roch formerly of the Swiss Research Institute in Davos, Switzerland. It was a little like putting together an allstar jazz band; everyone brought a different focus to our presentation of the case.

*****
The plaintiffs' strategy to try to trip up Plehn on avalanche forecasting and control, an area in which he had 14 years of experience, fell short of the mark.
*****

While all this was happening, discovery was ongoing. Prior to trial over fifty witnesses were deposed. Eventually experts were disclosed and their depositions also were taken. The trial was set to commence on June 26, 1985, but fortunately it was continued, allowing me to proceed with my plans to get married in July.

TRIAL

Trial began on August 6, 1985. Jury selection took three weeks. To complicate matters, the trial was held in Auburn, California, the county seat for Placer County, and I spent the first four months of my marriage living there with my boss, Barry Bunshoft. The most severe hardship, however, came when my mother died of a brain tumor on September 1. I know now why they are called trials.

1. TESTIMONY OF JIM PLEHN
During the course of trial, Jim Plehn was on the stand for over a week. Plaintiffs' attorneys were attempting to prove that he was negligent in the way that he forecast the hazard and the way he interpreted the results of explosive testing on the three slopes that eventually avalanched. While he had forecast the hazards on the particular slopes as being "High" to "Extreme" on the day of the avalanche, the explosive testing conducted with a seventy-five millimeter Howitzer yielded "no visible results." As a consequence, given the history of the paths and the results, Plehn concluded the snow on those slopes was stable and that the parking lot and buildings below were not in imminent danger of an avalanche. He then went on to control the more dangerous and historically active paths on KT-22 that affect the road. Plehn held up well under some very strict cross-examination by both sets of plaintiffs' attorneys. He was the person on the firing line, both on March 31 and during trial. With Bernie Kingery gone, he was the key person left for plaintiffs to attack. He also was the key to our defense. The plaintiffs' strategy to try to trip up Plehn on avalanche forecasting and control, an area in which he had 14 years of experience, fell short of the mark. To this day I am convinced that the jury focused more on Plehn's testimony than on the testimony of the various experts in the case.

2. THE ATWATER MEMO
Throughout the trial, the plaintiffs' attorneys attempted to introduce into evidence a memo allegedly prepared by Monty Atwater. The unsigned and undated draft memo was found in the files of the U.S. Forest Service in Nevada City. Clearly Atwater had typed this memo. It indicated that there was a known avalanche path that threatened "the Loop Road." The Loop Road eventually became part of the parking lot.

Because the plaintiffs' attorneys could not properly authenticate that the document had been prepared by Atwater, and because it was not a final document, the court did not allow it into evidence. Nevertheless, we acknowledged that the path known as the "Buttress" slide path could run into the parking lot but instead we focused upon the fact that the avalanche that killed LeRoy Nelson and his daughter and David Hahn emanated from a short path (500 vertical feet) known as "the Pond." We went on to prove that we did not reasonably anticipate that an avalanche from the Pond slope could run into the parking lot as far or as large as it eventually did on that tragic day in March.

3. THE EXPERTS' TESTIMONY
During the plaintiffs' case-in-chief, Ed LaChapelle and Art Mears testified on behalf of the plaintiffs. Mears testified that, based on historical photo analysis of the slopes in question and the slopes in the surrounding areas, the experts at the ski area, including the now-deceased Bernie Kingery, should have known that the Pond and Buttress slopes were likely to have run-out distances as great or greater than were seen on March 31, 1982. Additionally, based upon the historical records, and the weather and snowpack data, he testified the storm was the second largest to be experienced at the ski area. The heavy snowfall and high water content, combined with the very strong winds, led him to believe the avalanche hazard forecaster should have known that a severe avalanche with an extremely long run-out was likely to occur. He also testified that under the circumstances the ski area should have closed off the parking lot despite the fact that there was no history of avalanches running from the Pond slope into the parking lot.

*****
Fitzgerald testified that the goal of most avalanche control programs is to test a hazard forecast, not to produce avalanches. If avalanches occur, then the emphasis of avalanche control shifts from testing the forecast to producing avalanches. If no avalanches occur, it is reasonable to assume that the snow is stable and to begin testing elsewhere.
*****

Ed LaChapelle testified that the ski area's recordkeeping and avalanche forecasting methods were satisfactory; however, he felt the ski area made an error in interpreting the results of the avalanche control work performed in the morning of March 31. In essence, he believed that Jim Plehn incorrectly assumed that the Pond slope was stable because there were no visible results after shooting it with the Howitzer that day. He believed that, because the storm was continuing, the ski area could not safely assume that the slope would continue to remain stable, since the avalanche control was not conducted at the "critical moment." Had they done so, the control would have yielded results. LaChapelle also testified that the main purpose of explosive control is to create avalanches rather than to test for stability. He concurred with Mears in that he believed the ski area should have closed the parking lot until the storm was over.

We were able to cross-examine LaChapelle based upon a passage he authored in 1961 in the Snow Avalanche Manual indicating that one could assume that a slope was stable if explosive testing yielded no results. We then produced a classic sequence of photographs of LaChapelle setting off a slide while skiing at Alta. He downplayed the slide as minor but admitted that it could have been fatal. We used the photos to prove that everyone is an "avalanche expert" with the advantage of hindsight.

During defendants' case-in-chief, Liam Fitzgerald, Chris Stethem and Andre Roch testified on behalf of Alpine Meadows. Chris Stethem analyzed the weather and avalanche control records from the ski area for a period of almost twenty years. He concluded that while the storm admittedly was a large storm, it was not the largest storm in terms of precipitation or wind. He believed that it was a "precedented storm with unprecedented results." He pointed out that there was a small amount of debris noted at the base of the Pond slope which indicated the slope may have purged, at least a little. Due to the fact that the ski area was closed and that the slope in question was not subject to any artificial triggers, he believed that it was reasonable to assume that the slope would not avalanche. Even if the Pond Slope avalanched, it was reasonable, given the history of the slope, to assume it would not reach the parking lot.

Stethem underwent some intense crossexamination and he held up very well. Then he went into diabetic shock. After our objections to continued crossexamination, the judge finally intervened and recessed court for the day. Nevertheless, Stethem's testimony was significant and I believe the momentum had shifted in our favor. The plaintiffs' attorneys were getting nervous and had been fighting between themselves.

Liam Fitzgerald testified about avalanche hazard forecasting and control procedures. He believed that the forecast and control procedures were appropriate and he agreed with Plehn's evaluation that the Pond slope was stable after explosive testing that morning. Fitzgerald testified that the goal of most avalanche control programs is to test a hazard forecast, not to produce avalanches. If avalanches occur, then the emphasis of avalanche control shifts from testing the forecast to producing avalanches. If no avalanches occur, it is reasonable to assume that the snow is stable and to begin testing elsewhere. He also emphasized the importance of intuition and experience with local weather and snow conditions.

At one point during some particularly heated cross-examination, Fitzgerald testified that the risk of avalanches after testing is "an acceptable risk to the industry." The plaintiffs' attorneys attempted to use that statement to prove that the risk of avalanches must be home by "the industry."

Finally, Andre Roch, a pre-eminent avalanche expert and world-renowned mountaineer, testified concerning the mechanics of avalanches. He was brilliant. It was not so much what he said but how he said it. He believed that the slope was extremely stable at the time it was tested on the morning of March 31. Using an equation he had developed while studying at Davos, he rated the stability factor as a 3 on a scale of 1 to 3. He believed that the reason the avalanche was so large was that the snow was extremely stable and, in fact, the Buttress, Pond, and Poma Rocks paths behaved as one massive highly stable avalanche path. He concluded that the avalanche was caused by snow creep that originated in the area at the base of the rock face on the Buttress and that, once the avalanche started on the Buttress, it propagated down to the Pond slope and back up to the Poma Rocks. On cross-examination Roch truly was magnificent. In fact, at one point, one of the plaintiffs' attorney's voice turned so shrill a juror put her fingers in her ears.

4. STRICT LIABILITY RULING
There are numerous aspects of the trial that are worth discussing. One notable decision rendered by Judge James D. Garbolino was that avalanche control is not subject to strict liability. The ruling is published in its entirety in the proceedings from the International Snow Science Workshop (1986) at pp. 183-188.

5. THE VERDICT
During closing arguments, the plaintiffs' attorneys asked the jury to return a verdict in their favor for $14 million. On December 23, 1985, the jury, after over two weeks of deliberations, returned a verdict in favor of the defense. They found that Alpine Meadows, Bernie Kingery, Jim Plehn and others had acted reasonably in the way they forecast and tried to fight avalanches on March 31.

CONCLUSION

What did we learn from the trial? What did it accomplish? Seven wonderful people are still gone. The deceased fathers and husbands are missed but still loved. Laura Nelson had her life cut short. It doesn't seem fair or right.

Trials are emotional. This one may have been due to greed on the part of the plaintiffs' attorneys who may have overstated the case to their clients. With the benefit of hindsight, I can say that now. Had the jury returned a verdict in favor of the plaintiffs, I probably would have been subject to "second guessing" by professionals in my field for the way I handled the case. I learned one thing from the trial: we are all infinitely wise with the aid of hindsight.

John E. Fagan was one of the defense attorneys for- Alpine Meadows Ski Corporation during the Alpine Meadows trial. He is a partner in the law firm of Hancock, Rothert & Bunshoft in the firm's Tahoe City, California office.