61 F.3d 805 (10th Cir. 1995), 94-1283, Ulissey v. Shvartsman

Docket Nº:94-1283, 94-1382 and 94-1418.
Citation:61 F.3d 805
Party Name:Catherine ULISSEY, Plaintiff-Appellee/Cross Appellant, v. Alexander SHVARTSMAN, Defendant-Appellant/Cross Appellee.
Case Date:August 01, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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61 F.3d 805 (10th Cir. 1995)

Catherine ULISSEY, Plaintiff-Appellee/Cross Appellant,

v.

Alexander SHVARTSMAN, Defendant-Appellant/Cross Appellee.

Nos. 94-1283, 94-1382 and 94-1418.

United States Court of Appeals, Tenth Circuit

August 1, 1995

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James H. Chalat, Chalat & Co., P.C., Denver, CO, for plaintiff-appellee/cross appellant.

William H. ReMine, III, Montgomery Little & McGrew, P.C., Englewood, CO, for defendant-appellant/cross appellee.

Before MOORE, Circuit Judge, LOGAN, Senior Circuit Judge, and DAUGHERTY, Senior District Judge. [*]

JOHN P. MOORE, Circuit Judge.

This appeal questions whether the district court properly granted summary judgment. Concluding there are material facts in controversy, we reverse.

I.

Invoking diversity jurisdiction, plaintiff Catherine Ulissey sued Alexander Shvartsman, alleging he negligently collided with her while they were skiing on Snowmass Mountain at Aspen, Colorado. Ms. Ulissey claimed, as the uphill skier, Mr. Shvartsman failed to maintain a proper lookout, breaching statutory duties imposed by the Colorado Ski Safety Act, Colo.Rev.Stat. Secs. 33-44-101 to 33-44-111 (1979) (the Ski Act). She alleged Mr. Shvartsman's negligence resulted in a severe injury to her right knee, a torn anterior cruciate ligament, for which she incurred surgical, medical, and rehabilitative expenses. A professional dancer, Ms. Ulissey also claimed the injury caused substantial economic damage to her career. Upon

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these allegations, Ms. Ulissey moved for summary judgment on Mr. Shvartsman's liability for negligence, contending the undisputed material facts established the following as a matter of law.

On January 19, 1993, Ms. Ulissey was skiing on "Funnel," a beginner run, making slow, snow-plow turns on one side of the slope, traversing the open space, and then snow-plow turning on the other side. Mr. Shvartsman entered Funnel from "Slider," which along with "No Name," both intermediate slopes, spilled into Funnel below the base terminal of Lift # 15. Above her and skiing fast, straight down the fall line, Mr. Shvartsman collided with Ms. Ulissey, causing her to fall backwards and horizontally as he, landing on his back, slid about fifteen feet downhill.

In her deposition, Ms. Ulissey stated she first saw Mr. Shvartsman at some point above her moving straight down the hill. Only when she felt some contact with her upper body pulling her backwards and twisting her knee did she realize a collision occurred, although she did not then identify Mr. Shvartsman as the other skier. She screamed, and a ski instructor just above the collision site offered his help. On an accident report taken by a Snowmass accident investigator, Ms. Ulissey wrote, "I was skiing down and someone ran over the back of my skis."

Ms. Ulissey supplemented her motion with depositions of Mr. Shvartsman, his wife, Raya, and their skiing companion, Ms. Bella Belinkov, the ski instructor, and ski patrollers who responded to the accident, reconstructions of the accident site, maps, and photographs. The undisputed fact Mr. Shvartsman approached from uphill, she averred, placed the duty upon him to keep a proper lookout. His unswerving admission in his deposition he did not see Ms. Ulissey before the accident inescapably established he breached his primary duty to maintain a proper lookout, she contended. Under the Ski Act, Sec. 33-44-109(2), 1 Ms. Ulissey urged that breach amounted to negligence per se.

Resisting summary judgment, Mr. Shvartsman responded Ms. Ulissey's diagonal traverse of the slope and backward fall substantiate his version of the facts. He stated, as he skied down the left side of Funnel, Ms. Ulissey skied in a diagonal direction from the middle of the slope to the left-hand side. Their paths crossed when Ms. Ulissey skied over the back of his skis without any body contact. This version, Mr. Shvartsman insisted, was supported by the physical evidence of the direction of the two skiers' falls. Under this premise, if the downhill skier actually struck plaintiff in the back and from the rear, both she and defendant would have fallen forward from the same place. Moreover, this version supports his truthful deposition statement, Mr. Shvartsman maintains, that he...

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