Summary:

Negligence, reckless skiing, fractured femur of five year old plaintiff: Settlement 11/17/95.

Case Name:

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, Plaintiffs, v. NORM THOMS Defendant.

Court:

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 witnessesuniformly 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:

1 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:

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

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.

Plaintiff's counsel: