A jury will hear arguments in a wrongful death lawsuit filed by the parents of a 16-year-old German exchange student who fell head first into a pocket of loose snow while skiing at Whitefish Mountain Resort, a federal judge has ruled.
The lawsuit, filed in 2013, also names the host family and the exchange agency, contending gross negligence. The plaintiffs are his mother, Patricia Birkhold-Waschle, his father, Raimund Waschle, and his brother, Philip Waschle.
The lawsuit said Niclas Waschle was skiing alone on the edge of a groomed trail on Dec. 29, 2010, when he fell headfirst into a tree well and suffocated. The family is seeking damages and compensation, plus medical and other expenses.
The suit alleged that the resort provided no warnings about the dangers of tree wells – hollow areas that can form around the base of trees surrounded by deep snow. Whitefish Mountain Resort, owned by Winter Sports Inc., argued that Waschle wasn’t skiing within his abilities and that tree wells are an inherent danger of skiing.
According to the lawsuit, the boy was skiing near the T-bar 2 ski lift when he fell into a hidden tree well, which form around the base of trees and can be difficult to escape. The lawsuit said the tree well was along the edge of the groomed trail close to where skiers dismount from the ski lift.
Two other skiers found Niclas Waschle at about 11 a.m. when they spotted skis sticking out of the snow. Niclas Waschle was unconscious and died three days later after being declared brain dead due to suffocation. His family removed him from life support.
The family contends the area where Niclas Waschle fell wasn’t blocked off or restricted, and had no warning notices about possible dangers. The lawsuit also notes the death of a 29-year-old snowboarder 10 days later in a nearby tree well.
U.S. District Judge Donald Molloy in November ruled against the resort’s request to resolve the suit without a trial. Molloy ruled tree wells are not included in the definition of “inherent dangers and risks” in Montana’s Skier Responsibility statutes that were in effect at the time of the December 2010 accident, the Flathead Beacon reported.
Whether the resort “should have exercised greater care in warning of tree wells or reducing the risk, and whether Niclas should have been aware of the condition that caused his death and exercised greater care to avoid it, are issues for the finder of fact to resolve,” Molloy wrote in court papers.
The lawsuit contends the exchange program and the Vanhorns were negligent “in safeguarding Niclas by exposing Niclas to unnecessary and unreasonably risky behavior such as permitting him to ski in inclement weather alone.” The lawsuit said that Fred Vanhorn, a ski instructor at the resort, should have known about the dangers of skiing alone.
A trial date has not been scheduled because the Waschles are appealing an order that dismissed the boy’s host family from the lawsuit.
The state added tree wells to its Montana Skier Responsibility statutes earlier this year.