This is a skier collision case. Nancy Morgan was a strong intermediate skier, comfortable on challenging blue slopes and the "black diamond" or most difficult runs. She had skied for many years and was a regular skier at Breckenridge and Vail.
Defendant Steve Haynes was 49 years old on the day of the accident. He refers to himself as an "intermediate skier." He has had four ski lessons in his life. Haynes was skiing with his wife, Mary Jo Alton, and two friends, the Tudangers.
The Tudangers split their time between homes in Atlanta and in Vail. Ed Tudanger rates himself as a "Level 8" skier based on classes he takes at Vail. He testified that Mrs. Tudanger was a Level 7 skier. By using the Professional Ski Instructors of America skier level scale Tudanger was referring to a scale from 1 (never ever skier) to a level 9 (a skier who can ski bumps with short or long-radius turns, ski deep powder, ski steeps, run gates; use the carved turn as the principal turning method . . . racer, race official, instructor, or patroller). A level 8 skier is able to ski on black slopes and possibly double-black (extreme) slopes. A level 7 skier is able to ski advanced intermediate terrain, some black slopes, and into powder and bumps and ungroomed snow, link short-radius turns. isolate the skills of turning by pivoting the skis versus turning by tilting them, run gates, ski advanced terrain. Mr. Tundanger testified in his deposition that Mr. Haynes was the least skilled skier in their group.
The Eagle County Sheriff’s reports contain a statement attributed to Haynes himself that he is a low intermediate skier. This all becomes important because the collision occurred at the base of the Blue Sky Basin, an area which is all black diamond or EX terrain (except for two runs, "Cloud 9" and "In the Wuides" which are considered to be intermediate runs). However, both of the so-called intermediate runs are very challenging. The issue gains importance because Haynes was so far behind his skiing companions that his wife came out of the lift line and was waiting for him on the ski lift side of the bridge.
The collision occurred on March 16, 2006. The dispatch log puts the call to ski patrol at 12:55 p.m. There was a lapse of approximately five minutes after the collision and before the call was made. The collision happened on a man-made skier bridge leading to the lift loading area for two chairlifts at the base of the Blue Sky Basin. The Morgans were crossing the Twin Elks skier bridge located in the lower reaches of the China Bowl at Vail Mountain near the base of the Blue Sky Basin. Mrs. Morgan was 30′ ahead of Tim, her husband.
The bridge is fed by a long, shallow road known to skiers as the Silk Road, although ski patrollers refer to it as "Kelly’s Toll Road". No matter the name, it leads to the Two Elks Creek bridge. Skiers must cross the bridge to cross the gully and get to the two chair lifts servicing the area. Chair 37 goes up to Belle’s Camp. Chair 36, known as the "Tea Cup Express," goes up to the Two Elk lodge. The Morgans were headed to Chair 37. Haynes, trying to catch up with his group, came from behind the Morgans headed to Chair 37.
The bridge is 60′ long, 33′ wide. The rails are 6′ above the bridge roadbed. A large yellow "SLOW" banner was in place at the entry to the bridge, and other SLOW signs were uphill on the Silk Road leading to the bridge
The bridge was busy. It has been described in reports and testimony as "extremely" busy, and "heavy." Defendant reports however that there was "a lot of room" between him and the nearest other skier, estimating "ten to fifteen feet" of space in front of him.
Tim Morgan recalled that Haynes was skiing "much faster" than him, and passed him on his right. Haynes then collided into Mrs. Morgan from behind. Dr. Morgan’s report to the Eagle County Sheriff indicated that Haynes "then put on his skis and skied off," and that a ski instructor caught defendant, who then waited for ski patrol.
The defendant has testified that he got up onto some "choppy ungroomed snow" on the far right hand side of the bridge, next to the right hand rail, as he tried to pass Mrs. Morgan Morgan.
Haynes was well behind his skiing companions. Mary Jo Alton testified that she walked back down to the bridge and gave up a place in the lift line to wait for Haynes. She then was joined by Mrs. Tudanger.
Yet Alton and Tudanger, both waiting and looking for Haynes, at the end of the bridge, claim they did not see the collision happen in front of them. What the jury will likely find is that while Alton and Mrs. Tudanger left the line, Ed Tudanger held the place in the line. When Haynes got himself unscrambled from the wreck, he, Alton and Mrs. Tudanger re-joined Ed Tudanger back in the line to leave the scene. The Tudangers also testify that although they were experienced skiers (and local Vail residents), they, nevertheless, had never before known that when a skier is involved in an injury incident/collision that he/she needs to remain on the scene to give information.
Dr. Morgan’s testimony is that Haynes then got into the line to progress to the Teacup chairlift to leave the area. Ski instructor (and disbarred lawyer) David Yost will testify that he found Haynes in an area just outside of the lift line. Ski patroller LaBelle will testify that Haynes was in the lift line talking to Yost. Haynes testified that he had his skis off and was not in the lift line. Haynes’s wife, Mary Jo Alton, testified that when instructor Yost approached him, that Haynes and Alton were both in their skis, and "back towards the line."
The ski patrol report signed by Nancy Morgan states: "Rapid skier passed on her right and wiped her out. . . Other skier too fast x 10." S/ Nancy Morgan.
Mary Jo Alton, indicates in her report that "The bridge was very crowded and traffic was slow. The Qube (read: queue) from the lift was backed up to the bridge. I was waiting and saw my husband on the ground and the other lady leaning backwards. They were not on top of one another but next to each other. She looked like she had sat backwards on her skis. Then I saw some guy try to lift up Steve & move him & he was yelling & screaming." Defendant Steve Haynes: "The bridge was very crowded with the lift line backed up toward bridge, I felt people all around me and may have been bumped. We then collided. Someone tried to throw me off of the other person and was swearing at me." C.R.S. § 33-44-109(2) provides:"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." Haynes lost control in the cutup and ungroomed snow at the far right side of the bridge. He does not attribute his fall to Nancy Morgan. He didn’t catch a tip on the bridge, and he did not fall because of Mrs. Morgan; in fact he testified that he didn’t contact Mrs. Morgan until after he began falling. This is a classic case of losing control, because he was in conditions beyond his ability. "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." C.R.S. § 33-44-109(1) On the second element of 109(2) that each skier must maintain a lookout, the Tenth Circuit has held that: "Given the commonly accepted and understood meaning of the words in this subsection, "each skier" has the duty to keep a "proper lookout," which is defined in context alone as looking "to avoid other skiers or objects." Each skier also has a duty to ski in control–maintaining a safe speed and course trajectory to facilitate a proper lookout. Ulissey v. Shvartsman, 61 F.3d 805, 809 (10th Circ. 1995).
There was no dispute that Haynes crashed into Nancy Morgan from behind. The National Ski Areas Association Skier Responsibility Code has been referred to repeatedly in Colorado skier collision cases. The code states that "People ahead of you have the right of way. It is your responsibility to avoid them." The code is ubiquitous, and is seen on maps, napkins, signs and lift tickets. Haynes acknowledged it’s authority, and noted in deposition that the Code is on the trail map. The Responsibility Code had it’s origins in the National Skier’s Courtesy Code which stated that "when skiing downhill and overtaking another skier, the overtaking skier shall avoid the skier below him." Otto Werlin, general manager of Loveland Ski Area, was permitted to testify as to the elements of the code in LaVine v. Clear Creek Skiing Corp., 557 F.2d 730, 733 (10th Circ. 1977).
Mrs. Morgan sustained severe injuries to both knees in the accident:
1. Right lateral comminuted tibial plateau fracture requiring open reduction internal fixation and artificial graft/bone restoration;
2. Right lateral meniscus tear to the requiring arthroscopic repair;
3. Left anterior cruciate ligament tear and patellar condromalacia requiring ligament reconstruction with cadaver graft and debridement; and
4. Left medial collateral ligament rupture.
Nancy was evacuated out of the back bowls by a ski patroller. It is a long, painful and frightening process. First Nancy had to be splinted and loaded into a sled, which required a second wave of patrollers to bring another splint and a toboggan. Once Nancy was immobilized, splinted, and packaged into the toboggan, the rig was loaded onto the Teacup Express chairlift, using a "Jake Table." A Jake Table is an iron frame which is secured to the chair and makes a platform on which the toboggan rests. The patroller sits in the chair next to the patient.
The rig was then advanced up the line. The patient is lying above the chair, head forward, 60 – 100′ above the ground. It is not a pleasant ride. At the Two Elks area, where the toboggan was unmounted from the chair. Jake Table, and the litter with Mrs. Morgan in it then was placed in a Toboggan. Patroller LaBelle then rigged the sled for travel down the mountain. He had to place the handles into the sled (or unfold them depending on the model) and set the chain brake, and the belay rope. The rig, with Nancy immobilized but still conscious was then skied down from the summit of Vail Mountain all the way down to the base. From their, Nancy was transported in the back of a Suburban to the Vail Valley Medical Center.
At the hospital, she was seen, evaluated, taken to the Radiology suite, her bilateral injuries were diagnosed, and she was considered sufficiently urgent to require surgery that evening. The treating orthopedic surgeon testified that Mrs. Morgan will be permanently impaired, with a "mild" impairment on the left, and a "moderate" impairment on the right. The surgeon opined under the AMA guidelines that on the more-badly injured right knee, a 10 percent permanent impairment and loss of physical function, and a 4 percent whole person. On the left knee, a 5 percent permanent and a 2 percent whole person impairment. She cannot squat, or engage in any impact activities. She is at risk for arthritis in her left knee, and will probably suffer arthritis in her right knee. The face value of her medical expenses totaled $77,000.
The case settled in July 2007 for $225,000.
Past results are no guarantee of future results.