NICOLE MAE HANDLEY, a minor, by and through her natural parents and guardians, LYNDA M. FRATIS-HANDLEY and THOMAS P. HANDLEY; and LYNDA M. FRATIS-HANDLEY and THOMAS P. HANDLEY individually v. NORM THOMS

$200,000 Settlement for Child's Fractured Femur

Facts

This was a violent, high speed skier/skier collision which occurred on 1/1/95 in a plainly marked Slow Skiing zone. Minor plaintiff (d.o.b. 6/28/89) was enrolled in a ski school class led by an Aspen Ski Company employee. The children were traversing in a line from the unloading area of Lift 18, and were headed toward the loading area of Lift 19 at Snowmass Ski Area near Aspen, Colorado. Defendant was skiing fast down a ski run immediately above the two lifts. He lost control and collided into the minor plaintiff. At his deposition, the defendant admitted responsibility for the accident, but claimed that his knee had given out. The minor plaintiff, suffered a proximal diaphyseal fracture of her right femur. Medical expenses were about $23,500.00.

Plaintiffs advanced an exemplary damages claim, alleging that the reckless skiing complained of was done heedlessly and recklessly, without regard to the consequences upon, or of the rights and safety of others, particularly the plaintiff Nicole Handley. The accident was witnessed by five people who gave written statements. The disinterested witnesses uniformly expressed outrage at the defendant's conduct. Two witnesses testified that the speed and size of the defendant, relative to the five year old plaintiff, caused a collision so violent that they thought the minor plaintiff had been decapitated. One of the witnesses testified that she was nearly hit by the defendant as he came into the Slow Skiing zone.

Witness Larraine Shaw testified:
Depo. of Shaw - Page 6
1 And as we were discussing which way to go,
2 my husband screamed at me, "Watch out." And as I turned
3 to my left, as he was looking that way, pulling back,
4 this person came barreling down a million miles an hour,
5 clipped my skis. If I hadn't pulled back, he would have
6 hit me. And I was very angry. And within the speed of
7 light, he passed by me and smashed into a little girl.
8 And we were all horrified. Everybody was screaming.
9 Everybody was extremely upset at watching that.

Depo. of Shaw, cont. - Page 9
15 A. Nicole was—Nicole was standing at the
16 top of the lift unloading area. She looked as though she
17 had gotten off the lift and was looking somewhat up the
18 mountain or was looking around. She was just standing
19 there. And, again, this was very brief, because my
20 attention was on the skier. I was so mad at him for
21 hitting me and so grateful that he didn't hurt me. And I
22 saw him hit Nicole head-on, and he hit her so hard that
23 her hat went flying and my husband thought it was her
24 head. We thought she was dead. I've never seen anybody
25 hit that hard ever. And we were—we were—everybody

Depo. of Shaw, cont. - Page 10 I was screaming. Everybody was horrified. Kent Nethery, Ms. Shaw's husband, testified by affidavit that defendant stated "I can't stop" and further that Nethery thought Nicole had been "decapitated" and that it was the "scariest thing I had seen."

The accident was witnessed by Don Birnkrant, an Aspen Ski School Instructor with 23 years of service. Mr. Birnkrant holds a Level 3 certification with the Professional Ski Instructors of America. He testified:

Depo. of Birnkrant - Page 9
2 As I cleared the unloading area of 18 moving above it
3 —in other words, moving east, basically what I saw
4 was a blue flash which nearly hit me.
5 And then I heard a loud collision and
6 immediately looked and saw Nicole Handley and
7 Norm Thoms kind of tumbling in a pile.

Mr. Birnkrant further testified that Nicole was either stopped, or barely moving. The accident was witnessed by Dr. Carlos Treviño Cañmar of Monterey, Mexico, and his daughter Señorita Ana Isabel Treviño. Dr. Treviño is a dentist. Both the doctor and his daughter speak English fluently. Dr. Treviño furnished an affidavit which states:

Affidavit of Dr. Carlos Treviño Cañamar - Page 2
5) I remember the accident quite well. I first saw Mr. Thoms when he passed me with too much speed. He was going downhill with a lot of speed and uncontrolled. After he passed us, I watched him. Mr. Thoms skied straight down the hill, for a distance of 150 feet. He then almost hit an adult person. From where we were, I could see the school line as it was moving across the hill. After Mr. Thoms nearly hit the adult 150 feet below us, he did not slow down, turn or say anything. He skied straight for about 15 feet more before he hit Nicole Handley who was in the school line.
6) As we watched him, before he hit Nicole, I told my daughter that man is going to cause an accident.

7) During the time I watched Mr. Thoms, he did nothing that I saw, to try to stop. He was not waving his arms. He did not shout or say anything. He was quiet. He skied straight as an arrow from the first moment I saw him to the time he hit Nicole.

8) We stopped. We identified ourselves to ski patrol. We filled out the reports.

Damages:

This was a horrifying accident which could have killed Nicole, hurt her terribly, and forced her to suffer for a long period of time. We argued that to minimize her pain and suffering is to say that the suffering of a child is valueless. J.C.Owen, the veteran ski patroller who evacuated Nicole, began crying when he recounted his examination of Nicole, on the mountain. Her pain was intense. She suffered profound discomfort in the body cast, was ridiculed by her classmates, and was profoundly depressed by her inactivity.

The treating physician stated that Nicole will probably have a complete recovery after one - two years post accident. He acknowledged the literature which demonstrates a statistical likelihood of muscle weakness secondary to the injury. Following traction, casting and rehabilitation, the treating orthopedist stated to a reasonable degree of probability that the minor plaintiff will have no significant disability, disfigurement or further complications. Experts: Orthopedics - Mark Purnell, M.D., Aspen, Colorado. Note, that the accident was witnessed by a number of people, including the Aspen Ski Company instructor whose "lay opinions" were endorsed.

Legal Note: Legal Analysis—Ski Act

Under the Ski Act, skiers have the duty to maintain a lookout so as to avoid collisions, to ski in control, and to refrain from acting in a manner which may cause or contribute to injury of the skier or others. C.R.S. 33-44-109(1), (2) & (5). The "uphill skier yields to the downhill skier" pursuant to the statutory provision that "the primary duty is on the person skiing downhill to avoid collision with any person below him." C.R.S. 33-44-109(2). The rules all have a common purpose, to avoid collisions between skiers, and to enforce the common sense proposition that the uphill skier has the better opportunity to see and avoid skiers below. This is especially true in high traffic areas where each skier needs to be cautious of the ones below, and needs to rely on the skier behind him or her to avoid.

In 1990, amendments to the Ski Act abolished the defense that the risk of being hit by an unobservant skier is a risk inherent in the sport. C.R.S. 33-44-109(1) as amended provides: "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." 33-44-109(1) C.R.S. As Amended by Laws 1990, S.B. 90-80, 6, effective 7/1/90.

The duties established under the Ski Act are enforceable in civil actions for negligence pursuant to C.R.S. 33-44-104(1) which provides that the breach of an enumerated duty shall, to the extent that such breach causes injury, constitute negligence. Skiers are, therefore, liable in tort for the damages caused to others by a violation of any duties set out in the Ski Act, C.R.S. 33-44-104(1). See, Wong v. Sharp, 734 F. Supp. 943 (D. Colo. 1990); Rimkus v. Northwest Ski Corp., 706 F.2d 1060 (10th Cir. 1983); Pizza v. Wolf Creek Ski Dev. Corp., 711 P.2d 671 (Colo. 1985). Skiing is not a contact sport. The participant does not assume the risk of the negligence of another skier. Novak v. Virene, 586 N.E. 2d 578, 580 (Ill. App. 1991). No claim was advanced at any time, against the ski area operator.

Legal Analysis—Exemplary Claim

The purpose of punitive damages is punishment for wrongful conduct. The amount awarded should be adequate to call defendant's attention to that wrongful conduct. Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 408 F.Supp. 1219, 189 U.S.P.Q. 17, remanded 561 F.2d 1365, 195 U.S.P.Q. 417, certiorari dismissed 98 S.Ct. 905, 434 U.S. 1052, 54 L.Ed.2d 805 (1976).

The statute provides: "As used in this section, 'willful and wanton conduct' means conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff." C.R.S. 13-21-102(1)(b).

This definition has been interpreted to include conduct that "creates a substantial risk of harm to another and is purposefully performed with an awareness of the risk in disregard of the consequences." Messler v. Phillips, 867 P.2d 128 (Colo.App. 1993). We believed that we could show, beyond a reasonable doubt, that the act causing the injury was done with an evil intent and with the purpose of injuring the plaintiff, or with such a wanton and reckless disregard of the plaintiff's rights as to demonstrate a wrongful motive. Miller v. Solaglas California, Inc., 870 P.2d 559 (Colo.App. 1993).

Settlement:

The parties settled for $200,000.00. Payment was made by the defendant's insurer in the amount of $180,000.00 and the defendant personally paid $20,000.00. The probate court approved the settlement.