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Damages denied in collision on ski slope

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Everyone knows that if you crash into the person in front of you, you're probably at fault. But what if you're on skis?

The Utah Court of Appeals grappled with that unusual question in a case involving a collision between skiers Gary Ricci and Dr. Charles Schoultz at Snowbird in April 1994.Both men were skiing a well-groomed, "easy run" on a sunny morning. It wasn't crowded. Schoultz, who was taking ski lessons, was making a number of controlled turns as he descended Anderson Hill. Ricci closed to within a few feet of Schoultz as the latter approached a small crest.

Suddenly, Schoultz lost control and fell to the left and into the path of Ricci, who couldn't avoid hitting him. The two skiers slid into a tree well. Ricci hit the tree with some force and was seriously injured. Schoultz was only bruised.

Ricci sued for damages, arguing that since Schoultz's fall took place on one of the easiest runs at Snowbird under near perfect conditions, there was no reason for him to fall except for his own negligence.

A 3rd District Court jury agreed with Ricci and found Schoultz negligent. However, Judge Homer F. Wilkinson granted Schoultz's motion for a "judgment notwithstanding the verdict" on grounds there was insufficient evidence that Schoultz had breached any duty he owed Ricci. Ricci appealed.

In a 2-1 decision released Thursday, the Utah Court of Appeals affirmed Wilkinson's ruling, saying, "Some collisions between skiers are an inherent risk of skiing and may occur absent negligence, as in this case."

Writing for the majority, Judge Judith M. Billings said the court found no legal precedent in Utah case law but turned to other state and federal courts that have dealt with similar ski collision cases.

Cases that have supported a finding of negligence have required proof of some negligent conduct before the collision, she said. For example, in one California case, a skier was found negligent because he had consumed a large quantity of alcohol.

The California court held that while the skier didn't have a duty to avoid an inadvertent collision, he did have a duty to avoid increasing the risk of such a collision. By consuming alcohol prior to and while skiing, the defendant in that case had breached his duty "not to increase the risks to participant over and above those inherent in the sport."

A skier has a duty to other skiers to ski "reasonably and within control," Billings said. "However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty."

She noted that Ricci himself had testified that up to one second before the collision, Schoultz was skiing in control.

"Ricci's evidence, including all reasonable inferences drawn from it, is simply insufficient for a jury to have concluded that Schoultz skied negligently," Billings said. Judge Russell W. Bench concurred.

In a strong dissent, Judge Gregory K. Orme, said the question was not whether Ricci's testimony supported the verdict but rather whether any evidence from whatever source supported it.

Orme said the jury "might well have inferred that the only way the accident could have occurred was if (Schoultz), fully in control, carelessly and precipitously turned sharply to the left, hitting the unsuspecting plaintiff, who had every reason to assume defendant was going to continue with his pattern of tight turns as plaintiff passed uneventfully on the left."

While conceding that Ricci hadn't developed that theory at the trial, "it is a scenario that emerges quite readily if one reviews all the evidence and all reasonable inferences that could be drawn therefrom in the light most favorable to the jury's verdict."

And if that's what the jury concluded, "then the accident was caused by (Schoultz') negligence, not an inadvertent fall," and Wilkinson should have let the verdict stand, Orme said.