Runaway skiers on crash course

If Nathan Hall had been driving a car, he would have been cited for speeding. Instead, he was skiing, barreling down an expert slope, weight back on his skis, arms waving wildly, bouncing in the air from mogul to mogul. The 18-year-old went so fast that warm spring day in 1997 that “he was skiing literally faster than people had ever seen nonracers ski before,” says Brett Heckman, Hall’s attorney.

Unfortunately, Hall, a Chico, Calif., native who spent the ski season working as a lift operator in Vail, Colo., was skiing in a congested area. When he bounced off another bump and over a knoll, he launched into novice skier Allan Cobb, then grazed a second skier, breaking his pole, and stopped 83 feet later. Cobb, 33, died of head injuries.

Previous felony prosecutions for skier-collision deaths in Colorado had ended in plea bargains, but Hall decided to fight it. He seemed to get a break when two lower courts in Colorado ruled prosecutors did not have grounds for a case, but the state Supreme Court ordered Hall to stand trial, ruling that Hall “consciously disregarded a substantial and unjustifiable risk that he might collide with and kill another skier.” Three years later, a jury in a lower court found Hall guilty of criminally negligent homicide.

Runaway skiers are as ever-present as the evergreens that dot the slopes. Lifelong skier Kimberly Gannett, 33, of Boulder, Colo., says she encounters these human cannonballs almost every time she ventures onto the slopes. “That’s why I wear a helmet,” says Gannett, who spent two months in the hospital as a child after veering into a ravine to avoid a out-of-control skier.

About 5% of the estimated 150,000 injuries reported annually are caused by collisions involving skiers and snowboarders, according to data collected by the National Ski Areas Assn. The offenders are typically males ages 18 to 35, a demographic with a “tendency toward aggression and an inflated conception of their own skiing ability,” says Jim Chalat, a personal injury attorney in Denver.

While these runaway schussers have ended up in court more frequently in Colorado in the last decade than they once did, the rate of such collisions has actually held steady or decreased nationwide.

Greater public awareness has reduced collisions on some slopes, including California’s Mammoth Mountain, where accidents have been cut by nearly half in the last five years. Mammoth employs a safety director who trolls the mountain, educating people about the responsibility code, which urges skiers to stay in control, be mindful of others and yield to the downhill skier. Resorts have installed warning signs, fencing and mazes in congested areas and intersections, and employees intercept reckless skiers and snowboarders during busy times.

Despite these measures, prosecutors and juries in Colorado, the nation’s biggest ski state, have begun to conclude that skiers running over other skiers is no longer acceptable even for an inherently risky sport.

“It’s a societal shift,” says Michael Berry, president of the National Ski Areas Assn. “Skiers have been colliding since the second guy took up the sport. But people are far less tolerant of risk today.”

A Colorado prosecutor first brought criminal charges against a runaway skier in 1988, after an 11-year-old child was killed in a skiing collision; the 31-year-old skier served jail time. A Colorado jury first awarded a multimillion-dollar verdict in a skiing-related civil suit in 1994 after a commodities trader crashed into a ballerina at Snowmass, damaging her knee.

Then came the Hall case. “The whole idea of the Hall case is that the ski slope is like anywhere else, the same rules apply,” says Chalat, who represents ski accident victims. “It’s widely accepted now that if you run someone down in Colorado, you’re responsible.”

But not so in California. In 1997, the state Supreme Court held that skier collisions are, except in the most flagrant instances, an inherent risk of the sport, making it almost impossible for injured skiers to collect damages from those who hit them. Unless a runaway skier is guilty of “gross negligence” -- conduct so reckless that it is outside the realm of the sport, which is generally interpreted as skiing while intoxicated -- the person can’t be held responsible, even if the accident causes injury or death.

Because Hall was not intoxicated when he hit Cobb, some attorneys believe the case would never have gone to trial in California. But the Colorado jury found Hall guilty because, as an expert skier, he should have known to control his speed on a crowded slope. Indeed, no one can recall a felony prosecution of a skier collision in California.

“In effect,” says Paul Rudder, a Mammoth Lakes attorney who represents injured skiers in civil cases, “the court has decided [that] while you are bound by the law and the requirements of civilized behavior walking down the street or driving your car, if you are playing a sport, you can act like a Neanderthal, and that’s perfectly OK.”

But taking to the slopes is different from driving a car, says John Fagan, general counsel for the California Ski Areas Assn. “Skiing is a sport, and because it’s a sport, it involves skill, it involves balance, it involves gravity, it involves experience,” he says. “That’s why people choose to go skiing and take on those risks rather than sitting on the couch watching football.”

In addition, it’s not easy to determine fault in skier collisions. States with ski statutes generally hold uphill skiers responsible for avoiding those below them, but “most of the time neither person is at fault,” says Mammoth risk manager Pam Rake. “They were just skiing side by side and both looking the wrong way and came together. A lot of times, friends will run into each other; our ski instructors run into each other.”

This may be why, even though Hall struck Cobb, the jury apparently struggled with the decision, taking three days to reach a verdict. The judge imposed the minimum sentence -- 90 days in jail-- instead of the maximum six years. Hall’s attorney argued in the trial the incident was a “tragic accident,” not a crime.

But accident or no, says attorney Chalat, those who lose control and injure other skiers should expect litigation, especially if they have a homeowner’s policy or assets. And if they ski recklessly and kill someone, they could be incarcerated. “You might not mean to hit somebody else, but you still are responsible for their injuries.”

Which is why Jeff Wittebort, a Denver lawyer who often represents defendants sued by people run over in a collision, is not taking any chances. “I’ve hit four or five people over the years -- fortunately I’ve never injured anybody -- and I’ve been hit,” he says. “After my most recent case, I jacked my [homeowner’s] policy limits up to $2.5 million.”