A federal judge has ordered that a civil lawsuit involving a 16-year-old German exchange student’s 2010 death in a tree well at Whitefish Mountain Resort should be determined at a jury trial, and not through summary judgment.
In an order last month, U.S. District Judge Donald Molloy denied the resort’s request for judgment in the wrongful death case, but postponed a jury trial originally scheduled for Nov. 30 while two separate portions of the case are hashed out in the U.S. Ninth Circuit Court of Appeals.
The wrongful death lawsuit was filed in U.S. District Court in 2013, and continues to make its way through the legal channels nearly five years after Niclas Waschle fell head first into a tree well and suffocated while skiing alone near the T-bar 2 ski lift on Big Mountain. His mother, Patricia Birkhold-Waschle, father Raimund Waschle and brother Philip Waschle are listed as plaintiffs in the lawsuit, which seeks punitive damages and compensation for their loss.
The federal complaint lists as defendants Winter Sports Inc., doing business as Whitefish Mountain Resort; World Experience, doing business as World Experience Teenage Student Exchange; and Fred and Lynne Vanhorn, the host family. Molloy dismissed the Vanhorns as defendants in the lawsuit, a decision that is being challenged in the U.S. Ninth Circuit Court of Appeals.
According to the lawsuit, on Dec. 29, 2010, Waschle was skiing when he fell head first into a hidden tree well, a large concealed pocket of loose, unpacked snow that forms around the base of a tree, along the edge of the groomed trail near where skiers dismount from T-bar 2.
He was found at 11 a.m. when two other skiers noticed skis protruding from the snow. He was unconscious and died three days later, when doctors in Kalispell declared him brain dead due to the effects of suffocation and his family removed him from life support.
The family alleges that the area in which Waschle was skiing was not restricted or blocked off in any way, nor were any warning notices posted regarding the dangers of tree wells on or adjacent to the trail.
The resort counters that Waschle wasn’t skiing within his abilities and that tree wells are an inherent danger of skiing.
Molloy ruled that tree wells did not fall under the definition of “inherent dangers and risks of skiing” as outlined in Montana’s Skier Responsibility statutes in effect at the time of the accident. The statute was amended in 2015 to specifically reference the inclusion of snow accumulation around or near trees, but was not in effect at the time.
“Whether [Whitefish Mountain 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 the opinion and order.
Enough evidence has been presented by Waschle’s attorneys to warrant their claim for punitive damages against the resort, Molloy wrote.
“A reasonable juror could find actual malice,” according to the order.