TRUCKEE, Calif. – Until official investigations conclude, much about the avalanche near Castle Peak that killed nine people remains unknown. Many looking back at the event are asking the same questions: Why was a guided group of skiers traveling during such a powerful storm? What factors shaped that decision? And could anyone be held legally responsible?

To better understand the legal framework surrounding the incident, the Tahoe Tribune spoke with trial lawyer Mark Ellis, founding partner of Ellis Law Group.

“Guides and the company that employs the guides have a legal responsibility to not increase a risk that already exists whenever you go into the backcountry,” Ellis said.

If they do, that could be classified as negligence.

“Negligence involves conduct which we say is below the standard of care of what a reasonably careful person would do to protect themselves and or others,” Ellis said.

In court, determining negligence typically revolves around four key questions: Did someone owe a duty of care? Who did they owe that duty to? Was that duty breached? Did that breach cause damages?

“Hiking or skiing in the backcountry is dangerous, and it was particularly dangerous on the weekend that these folks were at Castle Peak,” Ellis said.

The Sierra Sun had begun tracking the forecasted storm cycle on Feb. 12, when OpenSnow identified it as California’s first significant system since the holidays. At the time, forecasts predicted 3 to 5 feet of snow across Tahoe ski areas and the western slopes of the Sierra, with the storm expected between Feb. 16 and Feb. 19. The storm ended up being one of the snowiest storms on record for the region.

Officials said the group was concluding a three-day guided backcountry trip to the Frog Lake huts. The trip was operated by Blackbird Mountain Guides, one of several companies offering guided backcountry ski and splitboard excursions in the region. The guided group departed on Feb. 15 and was attempting their return on Feb. 17, when the fatal avalanche occurred.

Ultimately, a court would need to determine whether the guides or guide company acted improperly or whether the group encountered risks inherent to traveling in the backcountry.

Factors investigators and courts may examine

“I’m not saying there is a case and I’m not saying there’s not a case,” Ellis said. “But these are some factors that you would look at.”

Those factors include:

• The experience level of the guides.
• The experience level of the participants.
• What participants understood about the risks involved.
• The judgment exercised by the guides and whether it was appropriate under the circumstances.
• Whether economic incentives may have influenced a decision not to cancel despite dangerous conditions.

One question, Ellis said, stands out and may eventually be examined.

“Why did they decide to leave the cabins or huts and hike out?” he said. “I don’t know the answer to that, but it will be important.”

Ultimately, courts would examine whether the decisions made at the time were reasonable given the conditions.

He cautioned against evaluating those decisions based on what is known now. People often critique decisions using information that only became clear after the outcome was known — a perspective that is not necessarily relevant in court.

“Hindsight is golden and 20/20 after catastrophic situations like this,” Ellis said.

How recreation companies protect themselves

If an accident occurs, outdoor recreation companies often rely on two major legal protections.

The first is the liability waiver participants are typically required to sign before activities such as guided ski trips, whitewater rafting excursions or even purchasing a ski resort pass.

“The efficacy of the release really depends upon the language,” Ellis said. “Some are drafted very well and some are not drafted as well and don’t give seamless coverage.”

The second protection is the legal doctrine known as assumption of risk.

“That is the concept that you’re going to undertake a risky recreational activity, and you assume the risk of getting hurt,” Ellis explained. “In many cases you often get a motion to dismiss the claim right out of the box based upon these two defenses.”

A tragedy of unusual scale

Outdoor recreation accidents — and the lawsuits that sometimes follow — are not uncommon, Ellis said.

“Accidents happen all the time. Lawsuits happen all the time,” he said.

What makes the Castle Peak avalanche distinct, however, is the scale of the tragedy and the experience level of those involved, he said.

According to the victims’ families, the group was made up of seasoned backcountry skiers. Blackbird Mountain Guides said all of the trip’s guides were trained or certified by the American Mountain Guides Association in backcountry skiing. Each guide was also an instructor with the American Institute for Avalanche Research and Education — the industry standard for avalanche education — and certified to teach.

For now, many questions surrounding the avalanche remain unanswered. Authorities say the investigation is ongoing, and determining whether negligence played a role may ultimately depend on details that have yet to be made public.