Fans sue Red Rocks over rockfall injuries
Neon lights cut through the darkness that filled Red Rocks Amphitheatre just before 1 a.m. on September 11, 2011. On stage, Sound Tribe Sector 9 started to play the final song of its encore, a meandering track called "Baraka" that starts out like a trippy lullaby punctuated by throbbing bass notes and then rises and falls in waves of cymbals, bongos and frantic electric guitar. The sold-out crowd whistled and cheered, hands in the air, as they bobbed along with the beat.
Forrest Hudspeth, then 24, was sitting in the tenth row, just in front of his girlfriend and her friend, enjoying the last bit of the show. Aware that the parking lot would soon be packed with people trying to leave, though, he turned toward them.
"Are you ready to go?" he asked, rising from his seat.
As he stood, something hit him on the top of his head — hard. Hudspeth blacked out and tumbled forward. When he came to, he was facedown on the concrete in row 7. He couldn't see, and he didn't understand how badly he'd been hurt. People were yelling at him to stay down, but in his confusion, he tried to stand up. Hudspeth passed out again, and when he woke up a second time, concert-goers were trying to stanch the blood that flowed from the gash in his head with shirts and other clothing.
A few rows down, Adam Kinnard was dancing to "Baraka" when a large rock struck him in the back of his right calf. Kinnard, then 23, had flown to Colorado from California for the band's three-night run, of which this was the last night. He'd seen STS9, a five-piece collective known for its unique brand of instrumental and computer-generated sound, dozens of times and counted himself among the band's followers — who range from noodle-dancing jam-band aficionados to glow-stick-twirling fans of electronic dance music.
At first, Kinnard wondered what had hit him. But then he saw it: a rock more than a foot long, about eight inches wide and four inches thick, lying in the row in front of him. It was the same reddish-brown color as the two iconic rock formations that flank the amphitheater and give Red Rocks its name.
Meanwhile, Jennifer Ackerman was standing with her cousin on the steps next to row 20. They'd just returned from the restroom and decided to listen to the rest of the show from the stairs rather than squeeze back to their seats. Ackerman's eyes were on the stage when something struck her in the head with such force that she fell on her face, unconscious. When she came to, the Denver mother of two, then 34, found that there was blood covering her face and soaking her hair. Nausea overcame her and she was sick to her stomach.
At around the same time — and thirty rows higher — David Scheuermann was sitting on the handrail of the stairs with his arm around his girlfriend. The couple had been heading toward the exit at the top of the amphitheater when they stopped to listen to the encore. Scheuermann, of Silverthorne, had just turned 23 a few days before, and the STS9 show was part of his birthday celebration. He remembers hearing a loud bang, like that of a firecracker or a gunshot, and then tipping forward off the handrail and landing on his chin. His first thought was that somebody had attacked him. He tried to get up to confront the aggressor, but he blacked out. The next thing he recalls, he was sitting against a stone wall.
"My girlfriend is crying like crazy, and I'm bleeding like crazy," Scheuermann tells Westword. "I sat against that stone wall, watching blood come into my hands, and that's when I was like, 'Shit, something is wrong here.'"
In all, medics at Red Rocks treated seven people who were hit by falling rocks that night, four of whom were transported to the hospital, according to incident reports. Hudspeth, Kinnard, Ackerman and Scheuermann were among those seven and are now suing the City of Denver, which owns Red Rocks Amphitheatre.
One of the big questions in the case is why the rocks fell. Could vibrations from the thumping music have knocked them free? Did people illegally climbing on the big rocks kick or throw them over the edge? Or had they simply been loosened by natural forces?
Regardless of the cause, the plaintiffs believe the city was lax in its efforts to prevent such an incident. Even though the engineers hired by Red Rocks repeatedly recommended that the venue be inspected and maintained every year, city officials decided to do that every three years instead — and 2011 was not one of those years.
The amphitheater at Red Rocks was formed hundreds of millions of years ago by water, wind and ice that eroded the ancestral Rocky Mountains, according to local historian Tom Noel's written history of the venue, Sacred Stones. What was left behind were two 300-foot sandstone monoliths. The monolith on the north side is known today as Creation Rock, the one on the south as Ship Rock. Together with Stage Rock to the east, they create what's considered to be the world's only naturally occurring, acoustically perfect amphitheater.
In 1864, a stonemason named George Morrison established a quarry near Red Rocks; ten years later, he mapped out the nearby town of Morrison. By then, Red Rocks had become an unofficial park that drew tourists from all over. In 1870, a local judge dubbed it the "Garden of the Angels." Thirty-five years later, entrepreneur J.B. Walker bought Red Rocks with an eye toward turning it into a profitable amusement. He and his son renamed it the "Garden of the Titans" and built a stage between the two monoliths, which was the site of the first Red Rocks concert in 1906.
Walker had long pushed the City of Denver to create a mountain parks system with Red Rocks as one of the main attractions, and three years before his death, he got his wish. In 1928, the city purchased 640 acres of land that included the amphitheater. Today the city owns 46 mountain parks. Red Rocks Park is the closest one to Denver and comprises 868 acres of hiking trails and vistas. It's overseen by Denver Parks and Recreation, while Red Rocks Amphitheatre is under the direction of Denver Arts and Venues, the city agency in charge of municipally owned theaters and arenas.
In 1936, city officials got approval to use the young men of the Civilian Conservation Corps to level the area between Ship Rock and Creation Rock and build the long benches that comprise the venue's 9,525 seats. The grand opening took place on June 15, 1941, with a wide-ranging performance that included "Home on the Range" and "Ol' Man River" and was capped with a selection from the Italian opera La Traviata.
By the early 1960s, the tenor of the shows at Red Rocks had changed from opera and symphony to rock and roll. Over the years, Red Rocks has hosted the Beatles, Bob Dylan, Johnny Cash, the Grateful Dead, Bruce Springsteen and Phish. U2's rendition of "Sunday Bloody Sunday" during a rainy show in 1983 has become rock legend, and the entire set was memorialized in the concert film U2 Live at Red Rocks: Under a Blood Red Sky.
Red Rocks has also been the site of tragedy. Back when Walker owned the park, he allowed visitors to walk on the rocks and even installed ladders and rope railings to help them. When Denver bought the land, it outlawed climbing — but warning signs and threats of hefty fines haven't stopped people from doing it. The first death noted in Noel's book happened in 1938, when a nineteen-year-old University of Colorado student fell while trying to leap over a chasm on Creation Rock. In the past decade, at least three people have died after falling from great heights at Red Rocks.
Less common are reports of falling rocks. But it has happened.
In February 2007, rocks that were described by Red Rocks facility superintendent Joe Davis as "grapefruit to watermelon size" fell while construction workers were building a new concession stand close to the stage on the Creation Rock side of the amphitheater. According to an e-mail made public as part of the lawsuit, the president of the construction company wrote to city officials that "it is necessary to do additional rock stabilization at Red Rocks to protect both my crews and the public.
"I should note that it appears to have been some time since any work has been done on Creation Rock," he continued. "It is vital that the City inspect this area at least annually to determine the condition both of the measures already in place and to look for new risks that have appeared over the previous months."
Davis also admitted in court that he's seen evidence of at least one other rockfall. About fourteen years ago, he said, he saw an "orange to grapefruit"-sized rock lying on the stairs next to Creation Rock. At the time, he said, officials didn't do anything about it. "Our basic plan at that point [was] to have everybody be more vigilant," he testified.
But vigilance wasn't enough.
In 2012, Hudspeth, Kinnard, Ackerman and Scheuermann, who had all been sitting or standing close to Creation Rock when they were struck, filed suit in Jefferson County District Court (Red Rocks is located in Jeffco) against the City of Denver; Live Nation Worldwide, Inc., which booked the show; and Argus Event Staffing LLC, which provides security for Red Rocks.
Their lawyers argue that Denver knew, or should have known, that rocks could fall — and they say the city failed to adequately protect people against that danger.
The city's attorneys countered that Denver shouldn't be held liable because it's protected under a law known as the Colorado Governmental Immunity Act, which was designed to shield cities and towns from gratuitous personal-injury lawsuits, and asked a judge to dismiss the case.
But there are exceptions to those protections. For instance, a city can be found at fault if it knew about a dangerous condition at a public facility and didn't fix it. Denver's lawyers say that's not the case with Red Rocks. For one, they argue that Creation Rock is not a "public facility." Furthermore, they say, before this incident, not a single person in recent history had been injured by falling rocks, so there was no reason to think it could happen in 2011. And they argue that Denver was indeed being proactive in its maintenance.
For thirty years, the city has hired Yenter Companies, a rockfall mitigation company out of Arvada, to periodically inspect the rocks and remove loose ones or stabilize them with bolts, cables, fences, mesh or a spray-on concrete known as shotcrete. Experts agree that the main reason that rocks become loose is the weather: When rain or snow gets in the cracks of the rocks, it freezes in the winter and then thaws in the spring. That freeze-thaw cycle can cause the cracks to widen and the rocks to shift.
When the concert-goers' lawyers received Yenter's work reports as part of the discovery in the case, however, they noticed a pattern: Even though each report ends with a recommendation by Yenter that the city have the rocks inspected at least once a year, Red Rocks officials didn't follow that advice.
Davis, the facility superintendent, admitted as much at a three-day court hearing held in the summer of 2013. The purpose of the hearing was for Jefferson County judge Christopher Zenisek to decide whether to dismiss the lawsuit. Asked why yearly inspections weren't ordered, Davis said that he and his supervisor "decided that every three years was adequate." He explained that "there had been no incidents to make us think that there was any reason to accelerate" that schedule.
"It was not a purposeful, 'We are not going to follow it,'" Davis said of the recommendation. "It's just that, based on our history, we chose not to do it the next year."
City records back up Davis's testimony. They show that Yenter produced in-depth reports complete with photographs and descriptions of rock-stabilization work performed at Red Rocks in 2007, 2010 and 2013. (The 2007 report was done after the rocks fell during the concession-stand construction.) However, both Davis and Yenter president Bill Roberts said that Yenter employees would sometimes check on issues that cropped up between inspections. For example, Davis said, Yenter came out to Red Rocks after a lightning strike in the spring of 2007.
But a geologist hired by the plaintiffs testified that, in his opinion, that wasn't enough. Brendan Shine, of Palmer Engineering in Castle Rock, inspected parts of Creation Rock and reviewed Yenter's reports. At the hearing, he testified that although extensive rock removal and stabilization were completed in the years that Yenter was hired, hiring the company every three years wasn't adequate. If Yenter had been able to maintain the rocks every year, Shine said, "the rockfall, within a reasonable degree of scientific certainty, would have been prevented."
Shine also developed a theory as to where the rocks fell from. Judging by the downward slope of Creation Rock and where the rocks landed, Shine concluded that the rockfall originated from the top of Creation Rock above row 40. (The amphitheater has seventy rows, with row 70 being farthest from the stage.) In his opinion, the rock or rocks that initially fell probably hit at least one ledge on the way down and shattered into smaller pieces — which would explain how seven people in several different locations were hit.
That's a different theory than the one originally floated by the concert-goers' lawyers. When they first filed the lawsuit, they argued that the rockfall was caused by people illegally climbing on Creation Rock in the vicinity of "the cave," a crevice high above row 62 from which it's possible to see the stage. Kinnard, who was standing within the first ten rows, testified that he saw flashlight beams near the cave during the concert. In addition, a security radio log from that night notes that two people were "seen in the cave on Creation Rock" just before 9 p.m.
But after inspecting parts of the cave, Shine said that wouldn't have been possible. From looking at photographs of a rock that came to rest in row 8 (the actual rocks weren't preserved), he estimated that it weighed about a hundred pounds. A person couldn't throw or kick a rock of that size that far, he said.
The city thinks differently. It hired its own experts, Richard Andrew and Ben Arndt of Yeh and Associates in Denver. In a report, Andrew and Arndt wrote that Shine and his colleagues were unqualified to offer opinions on rockfall mitigation, that their methods were flawed, and that their conclusions were wrong. Instead, Andrew and Arndt said, it's "very plausible" that animals or people climbing on Creation Rock caused multiple rocks to rain down on concert-goers that night. The rocks, they wrote, "appeared to be small enough that they could be carried to a launch point."
At the hearing, the two men testified that the Red Rocks mitigation program was adequate, and Andrew even suggested that Yenter's recommendation that the company inspect the rocks every year was "self-serving," because the company would make more money that way.
Even if Red Rocks had done that, it might not have prevented the rocks from falling, he testified. "It is a risk inherent. It's a...facility that was constructed within, in essence, a geologic hazard zone, and so there's potential for any kind of natural rockfall to occur."
The four plaintiffs also spoke at the hearing, describing to Judge Zenisek where they were sitting or standing when they were hit and the extent of their injuries.
"It was a very large gash," said Hudspeth, a Denver native who was hit on the head so hard that he somehow landed three rows down from where he was sitting. "I had to get ten staples, eight sutures." Now 27, Hudspeth has a jagged four-inch scar of raised white flesh on the top of his head that he often covers with a baseball hat.
In August 2013, Judge Zenisek issued his ruling, siding with the plaintiffs.
Red Rocks is a "public facility," he wrote, and Creation Rock is an integral part of that facility. Although the law says that governments are immune from liability when injuries are caused by the "natural condition" of a property, Creation Rock is no longer natural due to the rock removal and rock bolting that's taken place over the years, he determined.
The rockfall, he continued, was "caused by Denver's failure to reasonably maintain the public facility." In the years that Yenter was hired, no rockfalls were reported. In the years that they weren't, including 2011, rocks fell. As such, Zenisek concluded, Denver knew about the "dangerous condition" and should have addressed it.
The city is now appealing his ruling to the Colorado Court of Appeals.
So is Red Rocks safe now?
City officials declined to speak on the record for this story. But documents obtained through an open-records request show that Denver has paid Yenter $59,562 to do rockfall mitigation work at Red Rocks since September 11, 2011, when the rocks fell. That's more than the total amount of money — $57,784 — that the city paid Yenter between 2005 and 2010, according to records made public as part of the lawsuit.
A large chunk of that $59,562 was spent in the three months following the rockfall. Documents show that in the days following the incident, Yenter did a walk-through of the amphitheater. An e-mail exchange between Yenter's chief estimator and Denver Arts and Venues staff reveals that Yenter employees saw no signs of ongoing rockfall danger, nor did they see areas where the rocks were a different color, which would indicate "recent natural rockfall."
But the e-mail goes on to say that Yenter's inspectors "are not willing to make the leap to a conclusion that the falling rocks were human related."
The e-mail also mentions the possibility of installing a fence "to keep people out of that area that we all discussed on Monday." The area isn't specified, but recent photos show that a chain-link gate and fence now cover the entrance to the cave. A city invoice from December 2011 reveals that Denver paid Yenter $19,671 for fence installation.
Other invoices show that Denver hired Yenter to do some inspection and maintenance of the rocks in late 2011 and 2012, though there are scant details about what was done. The invoices mention that Yenter performed some "scaling," meaning that workers used harnesses and ropes to climb the rock faces and remove loose rock.
In 2013, however, Yenter produced another in-depth report complete with photos and descriptions of its work, like the ones it created in 2007 and 2010. The report documents problem areas and notes that a few need more work, including a part of Creation Rock known as "the fin." "The ledges and 'fin' appear to be eroding [at] what seems a steady pace," the report says. "There were a few small flakes that Yenter crews removed by hand. There are a few larger remaining flakes that require removal by mechanical assistance."
There's no indication that "the fin" has been addressed, but a memo from last month shows that the city contracted with Yenter to stabilize a section of rock within the cave known as "the flake" that was identified in the 2010 report as needing monitoring. The stabilization efforts, which were recently completed, included installing rock anchors, welded wire fabric and shotcrete, and cost an estimated $10,000.
In October 2013, the city also hired Yeh and Associates to produce a wide-ranging report about the current condition of the rocks at Red Rocks and to make recommendations for the future. The project proposal, obtained through the open-records request, indicates that it will cost a total of $57,720 and include a review of previous mitigation work performed at Red Rocks, a scan and map of the rock features, an evaluation of "other...potential rockfall prone areas not previously identified" and a final report that includes both "recommendations for future rock slope and rockfall mitigation sites" and recommendations for the frequency with which rocks should be inspected.
As part of the report, the city has also asked Yeh and Associates to review the "influence of acoustic vibrations on rockslope stability and provide comment." (See story, page 14.) The project is to be completed by June 30 of this year.
It will take much longer for the courts to decide who, if anyone, is to blame. Appeals such as the one filed by the city can take months to resolve, and if either side is unhappy with the outcome, attorneys can ask the state Supreme Court to review it. If the case survives the appeal, the sides could settle, or they could proceed with a jury trial.
And even if a jury sides with Hudspeth, Kinnard, Ackerman and Scheuermann, it won't mean a financial windfall for any of them. Under the Colorado Governmental Immunity Act, the most money they could collect from the city would be $150,000 each.
But they say that's not the point — or not the whole point, anyway. They want Denver to take responsibility for what happened and ensure that it doesn't happen again. It's lucky that no one was killed, they say, but there's no guarantee that such luck will continue.
Three different lawyers are representing the plaintiffs. Adrienne Tranel, who represents Hudspeth and Kinnard, was reluctant to allow her clients to speak freely about how their injuries have affected them. But Dan Gerash and Sam Ventola, who represent Scheuermann and Ackerman, were more willing to let their clients express themselves.
In an interview for which Gerash was present, Scheuermann, now 25, described the dent on the top of his head, where an older man's bald spot might be. He calls it his birdbath. It's his way of making light of an injury that needed seventeen staples to seal up, aches in the cold and caused him to be out of work for a month. He spent most of that time in a bedroom, drugged up on painkillers, feeling weak and confused. "It was such a dark period of my life," he says.
The injury has had lasting effects, as well. Scheuermann says his memory is not as good as it once was, and he's taken to writing things down lest he forget them. An avid snowboarder and skateboarder who loved riding rails and taking risks, he's also become more cautious. He doesn't want to suffer another head injury. "I'm really scared I'll hit that spot and get bone shards in my brain," Scheuermann says.
Ackerman, now 36, has also changed the way she lives her life. She, too, needed staples to close the wound in her head — fourteen of them, along with two stitches. In the hospital, she was told that there was bleeding in her brain and she was fortunate that she didn't need surgery. She still sees a neurologist for headaches, concentration problems and anxiety. A onetime hiker, cyclist and snowboarder, Ackerman no longer participates in any of those activities. And although she used to picnic at Red Rocks with her daughters, they haven't been back since 2011.
"The city should be held accountable," Ackerman says.
Scheuermann agrees. "There is a risk there, and people should definitely know about it," he says. "I have a hole in my head, and it's a daily reminder of what that night was like."
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