Client suffered disabling brain damage in a skiing accident on a ski trail maintained at a ski area near Harrisonburg, Virginia by Massanutten Ski Resort.

His brain injuries were totally disabling, requiring full time institutionalization. He suffers permanent and profound physical, mental and psychological deficits. He is confined to a wheelchair and suffers uncontrollable bouts of frustration and anger. His intellectual capacity is severely limited. He communicates with simple notes, and he can manage no more than a game of BINGO.

Massanutten Mountain forms a ridge east of the Shenandoah Mountains. Massanutten Ski Resort has a peak elevation of about 2900 ft. above sea level. It has 11 slopes, 8 lighted, a quad chairlift, and over 1,110 feet of vertical drop. Slopes are typically open from mid-December until mid-March, with 100% snow-making capacity. Its longest two runs are both man-made, the 3,400-foot Diamond Jim and the 4,100-foot ParaDice. Using the cut-and-fill construction method, both of these were completed by Massanutten in late 1991. Client’s accident occurred on Diamond Jim, just two days after it had opened to the public.

In a motion for judgment alleging negligence on the part of Massanutten, Client’s wife sought recovery of damages for his injuries. A jury returned a verdict in the Client’s favor in the amount of $6,170,563.00. The jury found no contributory negligence and no assumption of risk. Upon the motion of Massanutten, the trial court set the verdict aside and entered judgment in favor of Massanutten.

The trial judge determined that there was insufficient evidence to support the verdict, giving credence to defendant’s contention that the result was merely a “sympathy verdict.” We filed a petition for writ of certiorari to the Supreme Court of Virginia. The writ was granted. The Supreme Court reversed the judgment and reinstated the verdict.

Past results are no guarantee of future results.

A 17 year-old skier was night skiing down Eagle’s Swoop, an open intermediate slope at Wintergreen ski resort in Nelson County, Virginia. On the night of the accident, a snow groomer emerged from the tree line on skier’s left of Eagle’s Swoop, pivoted uphill, and then began driving about 300′ straight uphill close to the tree line and against the direction of skier traffic, while the ski run was open to the skiing public. Client came over the crest of the pitch, up which the snow groomer was ascending. She avoided the escorting snowmobile, lost control, fell and slid at high speed about 90 feet into the blade of the groomer. She sustained a comminuted fracture to her left humerus, a fracture of her left elbow and a non-displaced pelvic fracture. She also sustained a severe right frontal skull fracture. She went into respiratory arrest at the scene and was resuscitated by the patroller who had been riding the snowmobile. She was evacuated by helicopter to the trauma center. Her orthopedic injuries healed, but her skull fracture resulted in a permanent brain injury with extensive loss of function.

Plaintiff contended that the policy of bringing the groomer out into the slope, through a break in the tree line, pivoting uphill, and then driving the groomer uphill against skier traffic was unreasonably dangerous. Moreover, there was a blind area where the groomer was moving: from uphill, as she descended, a skier’s visibility of the run on which the groomer was moving was either obscured or partially obscured. The ski area operator specifically approved the policy of moving groomers on open slopes with an escorting snow mobile but prohibiting actual grooming on open ski slopes. The case was tried in Circuit Court for the County of Albemarle, Virginia.

The jury awarded $8.3 million. The Supreme Court of Virginia dismissed the Defendant’s Petition of Appeal on July 7, 2005. Jim Chalat co-counseled the case with Bryan Slaughter of Michie Hamlett Lowry Rasmussen & Tweel, of Charlottesville, Virginia.

Johnny Kotun, age 28, was an expert recreational skier. On March 25, 2007 at 4:00 PM, Kotun was traversing along a lower cat walk across the “Wilbere cutoff” and was headed toward one of the lower parking lots at Snowbird Ski Resort. Defendant, a 16-year-old off-duty junior ski instructor, was descending the cutoff, directly under the Wilbere chair lift. Defendant took a jump off of a transition, and performed a 360. He landed, carved two wide arc turns and collided at high speed into Kotun. Kotun was seen and heard waving his arms and shouting at defendant to avoid him in the moments before the collision. At impact, Kotun was ejected from his skis and thrown into a nearby tree. Defendant also went airborne into the tree. About 25′ from the point of impact was a large, orange SLOW banner. The testimony from witnesses (including chairlift passengers who reported to the scene) and the defendant formed a basis for our expert to establish a minimum speed at point of impact > 42 mph.

Defendant sustained a non-displaced pelvic fracture, a concussion (no helmet) and bruising to his kidneys and spleen. He recovered without any impairment.

Kotun sustained mandibular and maxillary fractures. Although he was wearing a helmet, Kotun also sustained an intra cerebral and frontal lobe hemorrhage, and a severe shear injury.

He recovered from the facial fractures but is now hemi-plegic on his left side, and has significant cognitive and speech impairments. His ability to live independently and earn an independent living has been lost.

The parties settled for the policy limits of $1.5 Million. A significant portion of the settlement payment was structured. The case was filed in Salt Lake County District Court and local counsel on the case were Craig Adamson and Craig Hoggan of Dart Adamson and Donovan of Salt Lake City, Utah.

Our client was hit from behind near the base of Breckenridge in a slow zone by a teenage skier. The teen’s skis went between our client’s skis, and the teen then snowplowed and fell forward onto our client, tearing both of our client’s ACLs. Partner Evan Banker secured a $795,000 settlement on her behalf.

Quick overview: Our client was descending See Me at Steamboat when he was t-boned on the right side by the defendant. The collision resulted in a fractured hip. This is the first skier/skier collision case tried to verdict in the United States since the Gwyneth Paltrow case. Partner Evan Banker and Russell Hatten represented our clients in this matter. The jury awarded damages of $435,000, With interest and costs the total judgment is expected to exceed $500,000. Foster v. M.B., 2022CV 30020 (Routt County District Court).

Foster v M.B., Routt County District Court, Case No. 2022CV030020 (June 15, 2023).

In this skier v skier case tried by Russell Hatten and Evan Banker, a Routt County jury found 100% liability against the minor defendant who was age 16 at the time of the accident and is referred therefore by his initials “M.B.” 

The jury evaluated the evidence and awarded $173,134.72 for pain and suffering, plus $131,400.00 for economic damages (primarily medical billings) and an equivalent amount, $131,400.00, for physical impairment and/or disfigurement.  Total $435,934.72. Following entry of judgment, the insurer for M.B. paid approximately $525,000 to settle the judgment plus costs and interest, closing the case.

Moral of the story… this was the first full trial of a skier collision case since the highly publicized case of Sanders v Paltrow tried in Summit County, Utah.  Avoiding all of the nonsense, Russell and Evan focused on the facts as set out in the contemporaneous accident reports, the forensic evidence, the medical evidence and imaging showing the fractures and complexity of the care. The weight of the evidence established that M.B. was the uphill skier with plenty of time and space to avoid the collision.  The jury returned a verdict for the plaintiff notwithstanding some belief that the Paltrow case had reduced skier collision cases to daytime cable-t.v., soap opera comedy. 

Facts:

On December 27, 2021, both Mr. Foster (age 67) and M.B., were skiing at Steamboat on “See Me.” Foster was a former a NCAA Alpine Skiing Champion, who had skied on the varsity ski team at the University of Colorado. Foster was skiing down the skier’s far right side making short, tight slalom turns at a skiing speed of 10- to 12-miles per hour.

“See Me,” is a “Most difficult,”/Black Diamond trail. It was 50 yards wide with a 17° inclination at the point of the incident. Based upon Steamboat Ski Patrol photographs, GPS measurements, video and aerial photography, our ski safety engineer, Mr. Patrick Kelley, determined that there was more than 200-yards of open visibility on See Me above the area of the collision.

Foster testified that M.B. hit him from uphill at a high rate of speed. M.B. reported to the Steamboat Ski Patrol that he and Mr. Foster, “were both skiing down the mountain taking turns and I was kind of mapping out his turns and I hit a patch of ice right as he made a little bit longer turn than I expected and I just couldn’t get out of the way.”

In the collision, Foster took the brunt of the of the force on his uphill leg – at his right hop. Foster sustained a right proximal femur fracture. He was evacuated from the scene by tobaggon.  M.B. was uninjured.

Mr. Foster was taken to Yampa Valley hospital in Steamboat where an orthopedist repaired his fracture with an intramedullary nail and two fixator screws.  Although the fracture seemed to be healing, in June 2022 Mr. Foster experienced a refracture of the injury.  A second surgery was done with the placement of a more robust plate, screws, and fixation.  There was no claim and no evidence that the Steamboat doctor’s treatment was below standard.  The severity of the fracture, was significant.  A re-fracture was a risk to be expected.  No evidence was presented that Foster failed to follow advice or did anything to cause the re-fracture. 

Foster’s doctor testified that Foster now walks with a limp, he has not returned to skiing, and is limited in his activity. For a former college ski racer, his life was changed. The risk of yet another re-injury limits him.  He has not returned to hiking, riding outdoors, or other activities to which he looked forward during retirement. 

Legal issues: The Court instructed the jury under the Colorado Ski Safety Act:

At the time of the occurrence in question in this case the Colorado Ski Safety Act was in effect.  The Colorado Ski Safety Act states:

Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope or trail and to ski within the limits of such ability… the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another.”  Colo. Rev. Stat. § 33-44-109(1).

Each skier has the duty to maintain control of his speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, the primary duty shall be on the person skiing downhill to avoid collision with any person or objects below him.” Colo. Rev. Stat. § 33-44-109(2). 

A violation of these statutes constitutes negligence. If you find such a violation, you may only consider it if you also find that it was a cause of the claimed injuries, damages, and losses.

Each skier solely has the responsibility for knowing the range of his own ability to negotiate any ski slope or trail and to ski within the limits of such ability

Each skier has the duty to maintain control of his speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects.

the primary duty shall be on the person skiing downhill to avoid collision with any person or objects below him.

A violation of these statutes constitutes negligence

Settlement Offer:
On April 4, 2023 Defendant made a statutory offer of settlement in the amount of $350,000. Foster turned down the offer.

Expert witnesses:

               Medicine:

Orthopedics – Dr. Michael Shingles, D.O., of Lansing Michigan for Plaintiff. Dr. Shingles testified by video preservation deposition. He testified as to the anatomy, severity, and treatment for the acute injury, the after care, subsequent re-fracture in June 2022 which Dr. Shingles treated, the reasonableness of the care and medical billings, the cause and repair of the re-fracture, and the impairment, pain and suffering, future prognoses, of Foster.  The evidence given by Dr. Shingles was unrebutted.

On Liability:

Patrick Kelley, P.E.  Patrick is one of the most well-respected accident reconstruction and ski safety experts in the United States.  He testified as to the location and terrain of the accident scene, the forces and vectors of the parties.

Long-time defense expert Seth Bayer, P.E. testified for defendant, but admitted on cross examination that defendant was probably the uphill skier based upon the evidence in the case.