On March 6, 2002, plaintiff Roger Affa, age 62 was skiing down Emperor’s Choice, a groomed intermediate run in the China bowl at Vail Mountain, Colorado. Affa was involved in a high speed collision with the defendant Jamie Nejezchleb. Affa was skiing in control, making medium radius turns. Witness testimony established that the defendant was sitting back on his skis, skiing straight down the fall line at a high rate of speed and collided into Affa from above. Patti Stoppi, from Reading, Pennsylvania, witnessed the accident from the nearby Teacup Express chairlift. Stoppi testified in a video preservation deposition that she worked as a volunteer National Ski Patroller at the Blue Marsh ski area, a 250′ vertical drop ski area located in eastern Pennsylvania, in the Poconos Mountains. Ms Stoppi gave an admissible lay opinion that Affa was the downhill skier, and that the defendant’s high speed, failure to lookout, and failure to avoid the downhill skier were the causes of the accident.

In developing the case we obtained the lift profile, matched that against the USFS Site Permit map, to establish points of impact and points of rest. Affa’s equipment, showed substantial scarring left by defendant’s skis crossing over his at about a 75 angle. Motions for production and subpoena produced photos taken by defendant and his skiing companions which showed a bottle of bourbon on the breakfast table probably on the morning of the accident.

Colorado law provides that the meaning of the "primary duty" is to establish a rebuttable presumption of negligence against the uphill skier. Typically, our district court judges instruct our juries in skier collision cases that if they find by a preponderance of the evidence that the plaintiff was downhill of defendant then the law presumes (absent a preponderance of rebutting evidence) that defendant was negligent because he breached the primary duty to avoid the collision. CJI_Civ. 4TH 3:5A.

The application of the rebuttable presumption against the uphill skier in a civil case for damages was just reaffirmed by our Colorado Supreme Court in People v. Hall, 999 P.2d 207 (Colo. 2000). [T]he General Assembly imposed upon a skier the duty to avoid collisions with any person or object below him. See, § 33_44_109(2). (Footnotes omitted) Although this statute may not form the basis of criminal liability, it establishes the minimum standard of care for uphill skiers and, for the purposes of civil negligence suits, creates a rebuttable presumption that the skier is at fault whenever he collides with skiers on the slope below him. (citations omitted). A violation of a skier’s duty in an extreme fashion, such as here, may be evidence of conduct that constitutes a "gross deviation" from the standard of care imposed by statute for civil negligence. People v. Hall, 999 P.2d 207, 223 (Colo. 2000) (emphasis added)

Colorado law explicitly provides that a skier/skier collision is not a risk assumed while skiing and that general standards of negligence apply on the ski slope, Affa does not need to prove malice, intent or reckless disregard; notwithstanding that, Colo. Rev. Stat. § 33_44_109(1) provides as follows:

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 expressly accepts and assumes the risk of and all legal responsibility for any injury to person or property resulting from any of the inherent dangers and risks of skiing; except that a skier is not precluded under this article from suing another skier for any injury to person or property resulting from such other skier’s acts or omissions. Notwithstanding any provision of law or statute to the contrary, 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. (emphasis supplied).

Defendant countersued Affa. State Farm, acting under Affa’s homeowner’s insurance picked up the defense, and plaintiff’s counsel worked cooperatively and shared costs with counsel retained by State Farm.

Affa, had volunteered as a uniformed mountain host at Vail for five seasons prior to the accident. He was considered an expert recreational skier. Prior to the accident, he had undergone surgery for a left shoulder rotator cuff tear, a right shoulder rotator cuff tear, and four arthroscopic procedures to his right knee.

In the accident, Affa sustained a mild traumatic brain injury, new tears to both the right and the left rotator cuffs, and injury of the right knee. He underwent repeated orthopedic procedures as a result. Affa incurred $119,044.01 in medical expenses. The treating physicians opined that as a result of the accident, Affa had 75% normal range of motion in his right shoulder, 30% normal range of motion in his left shoulder, and faced accelerated deterioration of his right knee.

The Complaint alleged negligence per se under the Colorado Ski Safety Act, that defendant was skiing too fast, failed to maintain a lookout, and that defendant had the primary duty, as the overtaking and uphill skier to avoid the collision. C.R.S. § 33_44_109.

The defendant moved to limit evidence of medical billings to the amounts paid by Affa’s PPO, rather than the amounts paid. We contended that C.R.S. § 13_21_111.6, the Colorado collateral source rule, forbids the evidence at trial of any health insurance payments of medical bills and that the fair and reasonable medical expenses were established by the face amount of the billings.

The defendant contended that Affa was in fact the uphill skier, and was descending to a separate run to the west of the accident.

The case settled at a JAG conference chaired by Steve Briggs.

Principal expert witnesses:
Plaintiffs’:
Forensic Engineering/accident analysis: Olof Jacobson, Littleton, CO
Orthopedics: J. Richard Steadman, M.D.; Richard Hawkins, M.D.; both of Vail, CO
Head Injury: Douglas E. Harrington, Ph.D., Newport Beach, CA

Defendant’s:
Accident reconstruction: Seth Bayer, P.E., Louisville, CO
Orthopedics: John P. Douthit, M.D., Denver, CO

Result: Defendant’s homeowners insurer paid plaintiffs $350,000.00 in settlement of the case.

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