Tragedy on Trial
Christopher Van Tilburg Snowboard Journal, 2005 The snow came dumping, more than two feet. Wind loaded gullies, chutes and couloirs with fat white flakes. Then next day, the sun appeared and the cool temperatures continued. At 5 a.m. it was 11 degrees, clear, and calm. Like a big swell lining up heavy rollers for that once-a-year surf session, all elements were in place at Mount Bachelor, Oregon, on February 9, 2002. Then catastrophe: Kate Svitek, a 22-year-old off-duty lift operator, possibly caught an edge, or pearled and endoed, or slid out in precisely the wrong place. Whatever the mode, she landed upside down in a tree well, in the remote West Bowls. At 4:45 p.m., Ms. Svitek was reported missing by friends. That launched one of the most labor intensive and expensive searches ever in the state. Ski patrol immediately swept the hill and Deschutes County Sheriff paged volunteers. The all night search eventually lasted three weeks and involved 20 crews from 4 states. The military sent Blackhawks. Search dogs came from California.
Finally, on March 4, a patroller caught sight of a foot once the snowpack melted a bit. Ms. Svitek had died of asphyxiation, most likely immediately after falling nine feet deep. The young collage graduate, who moved out west to ride live the dream, was dead. *** Tree wells form in mid-winter, because the large, low-lying branches of conifers collect snow on their branches and shed it away from the trunks. As winter progresses, the branches droop, take up space, and further keep snow from gathering around the trunks. After a big storm, the snow loaded branches create a second hazard: they dump snow on top of a victim who falls in. But it was neither the tree or Svitek who was blamed by her parents, but Mount Bachelor and Nidecker Snowboards. Mount Bachelor was off the hook because of a release that Ms. Svitek signed for her employee ticket. But Nidecker was on the line for $15 million for manufacturing defective “bear trap” bindings and for negligently failing to make binding that spontaneously release upon a fall. Henri Nidecker started the company in 1887 in Vaud, Switzerland. Originally he built cart wheels, ladders, and wheelbarrows. In 1912, he handcrafted hardwood skis, moved to plywood in 1946, and fiberglass in 1963. In 1984 Nidecker designed snowboards complete with fins. The company is still run by Henri Nidecker, Jr., who declined to offer a settlement. Pride, spirit of sport, and Europe’s alpine culture may have been factors. But whatever the reason, they went to trial. ***
I have laced up my boots and buckled into bindings a thousand times since first riding a Burton Backhill in 1985. But this time, I was riding in Multnomah County, Oregon, Courtroom #729, in front of 12 jurors and a judge. Of the 47 known cases of deep snow and tree well asphyxiation, only 14 have been snowboarders. Skiers with releasable bindings made up the rest. In addition, a study in 1999, in which four snowboarders were buried deep snow, reported that when a ridedr removed the board, a rider’s parka acted like funnel, collecting snow, and driving the rider deeper. Thus, it is highly improbable that not being connected to her board and binding would have allowed her to survive. Impact-release snowboard bindings are not new. Nidecker distributed some invented by Urs Meyer the early 1990s. Miller Ski Company, now Revolution Manufacturing, has marketed them for a least a decade. However, snowboarding injuries are less severe than ski injuries because both feet are fixed on a single board, so impactrelease bindings are usually not necessary. And if they were used and only one binding was to release, the large weight and torsional force could cause catastrophic injury to the leg still attached. Some riders tie a ripcord to the levers of step-in bindings or the toe clip of plates to jettison a board in an avalanche or to unclip when walking. But a rider-actuated release can not be used with the most widely-used binding, the two strap highback. In the end, this was the first snowboard case to go to jury trial. They voted 9 to 2 and 8 to 3 on product liability and negligence, respectively. But at what cost? Snowboard resorts, manufacturers, and shops carry insurance to cover liability and negligence claims. This, in turn, is passed on to consumer. Most search and rescue missions are coordinated
with public safety personnel, ski patrollers, and volunteers, which is again is transferred to taxpayers, lift ticket buyers, and volunteers themselves. Oregon is one of five states that have laws allowing SAR agencies to send a bill for those needing rescue. But Oregon has sent a bill only once, a group of boaters proceeded past “closed” signs then verbally abused their rescuers. Although new technologies will likely snowboarding safer and rescuers will continue to respond, prevention of tree well and deep snow immersion asphyxiation rests primarily with snowboards, skiers and other mountain travelers. Thus responsibility primarily lies with you too. That’s the jury verdict. *** *** ***