Restitution and Ski Accidents, by James H. Chalat. After skiing very fast and out of control over a mogul field, Nathan Hall flew over a knoll on the “Riva Ridge” ski run on Vail mountain and collided with Allen Cobb. Mr. Cobb suffered a fractured skull and a fatal brain injury.


IMPLICATIONS OF H.B. 00-1169 ON COLORADO SKI LAW IN LIGHT OF THE HALL DECISION

By James H. Chalat

In April, 2000, the trial of Nathan Hall ended with the first criminal conviction by jury in Colorado for a ski-related death. After skiing very fast and out of control over a mogul field, Nathan Hall flew over a knoll on the “Riva Ridge” ski run on Vail mountain and collided with Allen Cobb. Mr. Cobb suffered a fractured skull and a fatal brain injury.

Felony reckless manslaughter charges were brought against Mr. Hall. The case went to trial after remand from the Colorado Supreme Court. People v. Hall, 999 P.2d 207 (Colo. 2000). The jury found Hall guilty of criminally negligent homicide. The recent criminal conviction in Hall has impacted ski law and other tort litigation in Colorado, specifically with reference to Section 16 of the Colorado Statutes.

Recent amendments to Section 16, Criminal Proceedings, provide that every order of conviction consider restitution to the victims. H.B. 00-1169, which became effective on September 1, 2000, added and amended provisions to the Title concerning Restitution in Criminal actions. C.R.S. 16-18.5-101, et seq. This law provides guidelines and mandates for entry of orders of restitution as to all convictions, including “felony, misdemeanor, petty, or traffic misdemeanor offense(s).” Though well-intentioned, this statutory requirement raises many ethical and technical problems for litigators in ski and other recreational accident cases.

Several Colorado statutes impose a duty of “due care,” which, in its breach, may be the basis of a civil action for negligence. Certain statutes also include a criminal component to the framework, such that the same facts and statute will be the basis for both a civil action and a companion criminal proceeding.

The Ski Safety Act of 1979, C.R.S. 33-44-109(12). Provides that a skier who skis on a closed trail, leaves the scene of an accident, skis while intoxicated or skis off of a ski slope and onto closed and posted adjacent private lands will be “guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars.”

As a result of the Supreme Court decision in People v. Hall, the ethical and practical problems that C.R.S. 16-18.5-101, et seq, raised for the civil litigator in general now apply to the specific area of ski litigation as well. The civil litigator must now be very sensitive to the restitution requirement when representing a party that was severely injured in a ski or other recreational accident. Although the court in Hall stated that in most instances, “skiing too fast for the conditions” does not create enough of a substantial and unjustifiable risk of death to warrant criminal liability, the possibility should at the very least be contemplated by both party’s attorneys. The restitution stage of the companion criminal proceeding may directly impact the proceedings in the civil action specifically relating to pecuniary loss damages. The two categories of non-economic damages, e.g., pain and suffering damages and damages for disability and disfigurement are still left exclusively to the
civil action.

Moreover, certain ethical considerations also arise—notably the involvement of civil litigators in companion criminal proceedings under Colorado Rule of Professional Conduct 4.5, which generally prohibits a lawyer from presenting or threatening to present criminal charges to obtain an advantage in a civil matter. Further ethical considerations also arise with regard to counsel’s determinations on how to best serve the client’s interests. C.R.S. 16-18.5-103(6) states that “Any amount paid to a victim under an order of restitution shall be set off against any amount later received as compensatory damages by such victim in any federal or state civil proceeding,” creating a dilemma for counsel in advising their clients as to the possible recovery of damages.

Pragmatic considerations also exist for the ski accident litigator who is faced with a case where the defendant is facing a possible criminal trial. Questions concerning fees for representation, insurance coverage and bankruptcy are likely to arise. Moreover, if the District Attorney is energetically applying H.B. 1169, then the pecuniary loss evidence and finding may be collateral estoppel on the civil action for damages.