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.
