Criminal verdict in skier case could help plaintiffs in civil suits.

A Colorado jury recently convicted a skier of criminally negligent homicide for slamming into and killing a fellow skier on the slopes at the Vail ski resort. (State of Colorado v. Hall, No. 97-CR-167 (Colo., Eagle County Dist. Ct. Nov. 16, 2000).)

The verdict marks the first time a jury has convicted a skier of homicide for fatally colliding with another skier, and some experts say it is likely to affect the outcome of some civil cases as well.

"I think the case fortifies the notion that if you ski and you're injured by a reckless skier, you're entitled to damages," said Denver lawyer Jim Chalat. "It's a step toward protecting victims' rights in the civil arena."

The fatal collision occurred in 1997 when defendant Nathan Hall, an 18-year-old ski-lift operator at the time, was leaving work on the last run of the last day of the ski season. Witnesses said he was speeding straight down the mountain, leaning back on his skis, and holding his arms out to the sides for balance.

Toward the bottom of the slope, Hall reportedly hit a ridge, became airborne, and crashed into Alan Cobb, 33, who was skiing across the slope in Hall's path. One of Hall's skis penetrated Cobb's skull, causing massive brain injury. Cobb died a few hours later.

A charge of reckless manslaughter against Hall was initially dismissed by a trial judge who determined that the defendant's conduct did not rise to the level of dangerousness required for a manslaughter charge. On appeal, that decision was affirmed on the ground that no reasonable jury could find that skiing at excessive speed would likely cause another's death. For conduct to be reckless, the court found, it must have been "more likely than not" that death would result.

But last year, the Colorado Supreme Court reversed and remanded the case for trial. "For the purpose of determining whether a person acted recklessly, a particular result does not have to be more likely than not to occur for the risk to be substantial and unjustifiable," the court (State of Colorado v. Hall, 999 P.2d 207 (Colo. 2000).)

At the trial, Hall's defense counsel, Vail attorney Brett Heckman, argued that his client could not be held criminally responsible because he could not have foreseen the slushy conditions that created the ridges where the collision happened.

Evidence included an audiotape of Hall as he was being treated for injuries after the collision. Apparently unaware of what had happened, Hall told a sheriff's deputy, "I tried to slow down. I was trying to get control. I went off a knoll. I was off my feet. I'm an expert skier. I can stay in control all the time. I just hope I didn't injure another person."

After deliberating for more than 17 hours, the jury convicted Hall of the lesser charge of negligent homicide. Hall was awaiting sentencing at the time TRIAL went to press.

Shortly after the verdict was rendered, Colorado Attorney General Ken Salazar issued a statement "reminding those who would endanger the health or safety of fellow skiers that their conduct may have personal consequences."

Attorney Chalat, who filed an amicus brief in the case when it was before the state supreme court, said the verdict shows the tide is slowly turning against defendants in ski injury cases.

"The first skier-skier collision case was almost 40 years ago. People have been filing for damages for a long time when they've been run down by some nut on the slopes," he said. "But there's been prejudice in the jury box against plaintiffs. A lot of people think that if you go skiing and you get hurt, well, that's just too bad. It's taken a while to overcome the prejudice that every injury sustained is a result of a risk assumed, even if it is sustained as a result of someone's negligence."

Chalat added that courts in other states will likely follow the Colorado Supreme Court's lead in allowing skiers and snowboarders to face criminal penalties for blatantly reckless conduct.

"Colorado leads the nation in this area. Skiing is a vital part of the Colorado economy. Our state supreme court takes these cases very seriously and is nationally recognized as a leader in these cases. Other courts will look to its decision as precedent. Given the supreme court opinion, and now the verdict, it is more likely that there will be charges filed in cases with aggravated circumstances," Chalat said.