Parents sue Skico over child’s death
August 18, 2002
The parents of a 5-year-old girl who died last winter after hitting a tree at Aspen Highlands intend to file suit today in U.S. District Court in Denver against the Aspen Skiing Co., the Ritz-Carlton Hotel Co., the Ritz-Carlton Club at Highlands Village and Highlands developer Gerald Hines.
Issac and Miriam Arguetty of West Palm Beach, Fla., have retained Miami attorney Samuel Burstyn to seek a jury trial and punitive damages stemming from the death of their daughter, Leonie.
Attorneys at the Ritz-Carlton and Hines could not be reached for comment, and the Skico’s attorney had not yet seen the lawsuit.
Burstyn is taking an unusual approach in the suit, claiming that the Arguettys are victims of fraud because they relied on marketing materials pitching Highlands as a family-friendly resort.
“The representations made by Hines, Ritz-Carlton, and the Skico … were false and fraudulent when made, and were part of an integral and continuing scheme designed by the Defendants to induce families to travel to Aspen Highlands, stay at the Ritz-Carlton, engage Skico as ski instructors and ski equipment lessors, all to the financial advancement and reward of the Defendants, and concealed by dangerous risk to novice, children skiers, especially Leonie,” the suit claims.
The Arguettys are not experienced skiers, Burstyn said, and they did everything the Skico and the Ritz said they should do on their vacation, including renting Leonie skis at Pro Mountain Sports and enrolling her in a ski school class in which they understood there would be two instructors.
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“They were supposed to come back at 3:30 p.m. and pick up their baby,” Burstyn said of the Arguettys. “And their baby died.”
The suit also claims wrongful death and “deceptive trade practice,” specifically against the Skico, for its failure to protect Leonie while in ski school and under the care of an instructor.
The suit contends the Ritz is guilty of “negligent referral,” saying the hotel “owed a duty to the Arguettys and Leonie not to expose her to the risk of the Skico’s negligent instruction.”
According to the suit, the Arguettys were told by the Ritz-Carlton staff that Leonie would be fine in ski school at the Highlands and referred them to the Skico.
Gerald Hines, the developer of Aspen Highlands, is accused of fraud because of his relationship to the ski area and its marketing efforts.
And Burstyn said he believes Hines should bear some responsibility for Leonie’s death because his Highlands Village development reshaped the base of the ski area, made the bottom slopes steeper and faster, and caused the Pee Wee lift to be taken out and the Snow Puppies program for young children to cease operation.
“A message needs to be sent that you don’t put development ahead of safety, especially for little children,” Burstyn said.
However, the base area redevelopment did not change the Golden Barrel or Park Avenue trails where Leonie’s accident occurred, and it is not an uncommon sight to ski young skiers on that section of the mountain.
On Feb. 16 of this year, Leonie was in a ski school class at Highlands when she was skiing down Golden Barrel, an intermediate trail, toward her instructor. She then skied across the Park Avenue path and hit a tree.
“What happened was, she was behind him, he went right, she went left, and by the time he turned around, she was below him,” said Mike Kaplan, the Skico’s senior vice president of mountain operations in an interview earlier this year. “She hit a tree on the left just above the upper part of Lower Stein.”
Leonie was not wearing a helmet and died two days later in Denver of a traumatic brain injury.
Later in the season, another 5-year-old at Highlands, also in ski school, hit a tree. However, Eliot Levmore of Chicago was wearing a helmet and received only a mild concussion.
The two incidents prompted the Skico to become the first ski area in the country to make it mandatory for children under 12 in ski school to wear helmets.
Leonie’s age has previously been reported as both 5 and 6. According to the Pitkin County coroner, her birthday was June 24, 1996, which would have made her 5 at the time of her death.
However, the Skico said Leonie’s mother reported her age as 6 on her ski school lesson form. In any event, there would have been no change in the lesson Leonie was enrolled in based on her being either 5 or 6, according to Kaplan.
He also said that Leonie had been on one other ski trip before and that her skiing ability was checked out at the bottom of the hill. She was asked to walk up a bit and then ski down, and it was determined she was a “solid Level 3” skier.
That may be relevant because it is now the Skico’s policy since the Highlands Village was built that skiers who are not at least Level 3 skiers be taught at Buttermilk, not Highlands.
Burstyn said he is seeking punitive damages in the suit because he wants to go beyond the $250,000 cap that Colorado places on wrongful death judgments.
And he said he has named Hines as an individual in the suit because he knows Hines, as one of the world’s busiest developers, has “deep pockets.”
But according to the suit, “any monies received from the lawsuit are to be donated to Leonie’s Light Foundation, a nonprofit organization whose purpose is to protect against death or injury stemming from concealed or misrepresented safety information.”
Burstyn is a well-known attorney in Miami who recently represented the wife of tennis star Boris Becker in a divorce proceeding. He is not an attorney who regularly handles ski-related lawsuits. In the lawsuit he intends to file today, he makes a reference to the “Veil” ski area.