The accident occurred at Vail Ski Resort on January 9, 2007 with a skier/skier collision. Barry Dutton skied at very high speed over a roller (drop in terrain) and crashed into Ms. Volinn who was skiing from skier’s right to left, slowly and in control, below.
Mr. Dutton completed and then signed a Collision Report Form at the scene describing the collision as follows: "Came over top of steep step on Gandy Dancer & collided with skier crossing slope just below step not visible from above."
The Colorado Ski Safety & Liability Act (C.R.S. 33-44-109 Duties of skiers-penalties) requires a skier to maintain control of his speed so as to be able to avoid other skiers. Also, the uphill skier (Mr. Dutton) has the primary duty to avoid colliding into any skier below. Mr. Dutton breached both of these duties.
Mr. Dutton made another statement against interest following the collision when he hand-wrote a note to Ms. Volinn apologizing for his actions and included a gift certificate to replace her goggles that were badly broken on impact. I have attached a copy of that statement. Mr. Dutton wrote:
"I want to again express my regrets over our brief encounter on Gandy Dancer today. Please use the enclosed to replace your goggles. This was my first such accident in 35 years of skiing and I learned something about caution I will take forward. I hope you recover soon…"
Ms. Volinn was skiing with her brother-in-law, William Blaze, at the time of the incident. Mr. Blaze was uphill about 50 yards and did not actually see the impact because of the terrain change, but does recall being passed "by an extremely fast male skier". Mr. Blaze distinctly recalls thinking that the male skier was skiing far too fast for the conditions and was going to hurt someone. Mr. Blaze crested the roller about five seconds later and his fears had come true- he saw Ms. Volinn "sprawled out on the snow with her skis, poles and goggles scattered around her" and people coming to help her. Mr. Blaze saw the "extremely fast male skier" [Barry Dutton] down on the snow with his equipment scattered about 20 yards downhill from Ms. Volinn.
Ms. Volinn lost consciousness for one to three minutes and, thereafter, was disoriented for about three or four minutes. She sought emergency medical treatment at Vail Valley Medical Center at the base of the mountain.
An internal medicine specialist examined Ms. Volinn on January 16, 2007 and noted: (1) headaches had increased during the second and third days following the collision, and had now become constant; (2) nausea; (3) diplopia; (4) pain at the back of her left eye; (5) bruised ribs; (6) left shoulder pain; and (7) left hand tingling. She was referred to a neurologist. The neurologist found the following: (1) concussion, grade 3, with loss of consciousness for three minutes and prolonged confusion for approximately 12 hours; (2) neurological symptoms including transient diplopia, persistent left hemi-cranial and retro-orbital headaches; (3) question of left optic nerve swelling.
Ms. Volinn incurred medical expenses in excess of $17,000.00. Her claims against Mr. Dutton were settled without the filing of a lawsuit for $90,000.00 on June 5, 2007.
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