Facts

On Dec. 20, 2015, plaintiff Edward Kutchma, 78, an expert skier with a certified teaching credential, was skiing at Mammoth Mountain. Plaintiff was coming down the ski run known as "solitude," which is an intermediate run. At approximately 11 a.m., the ski run was very congested with skiers of varying levels of experience. Plaintiff was traversing down the ski run making very controlled short radius turns traveling at approximately 15 mph. Defendant Aiko Oshima was an advanced skier and was coming down the solitude ski run when he failed to see plaintiff and collided with plaintiff.

PLAINTIFF'S CONTENTIONS:
Plaintiff claimed defendant struck plaintiff's left side and back traveling at a speed in excess of 40 mph. A witness to the accident provided a written and recorded statement that he was traveling at a moderate speed and defendant passed him skiing at a substantially faster pace, at a speed that was not safe with that many people on an intermediate trail. The witness stated that when defendant passed him, he tried to follow but defendant was traveling at such a high speed that the witness slowed down. The witness stated that he was an expert skier and that in his opinion defendant was traveling at an impossible speed for that area. The witness also had an app on his phone, which tracks and records the ski activities for the day. Based upon his app records and his opinion, he stated that defendant was traveling at about 42 mph when he impacted plaintiff. The witness also stated that defendant did not break, slow down or attempt to turn prior to the impact with plaintiff.

Plaintiff contended that defendant was traveling at an unsafe speed in conscious disregard for the safety of others. Defendant was traveling at a high rate of speed making racing style turns on an intermediate run congested with skiers of varying levels of experience. The solitude ski run was approximately 100 yards wide at the point where the accident occurred. Plaintiff contended that there was no obstacle that could have interfered with defendant seeing plaintiff prior to the collision, that defendant made no attempt to slow down or change his direction to avoid colliding with plaintiff.

Furthermore, plaintiff contended that defendant failed to exercise due care and substantially increased the risk of injury to other skiers over and above those risks normally associated with the sport of skiing. Plaintiff contended that defendant, as an advanced skier, had the ability and skill to have avoided the collision.

DEFENDANT'S CONTENTIONS:
Defendant contended that the sport of skiing is an inherently dangerous activity and that defendant owed no duty to plaintiff. Defendant argued that plaintiff assumed the risk of being injured, and that risk included a collision caused by another skier.

Specials in Evidence

$200,000

Injuries

Plaintiff's injuries included dislodged vertebrae at C-4 thru C-7, surgery involving a C-4 to C-7 laminectomy, multiple bruising on the left side of the body, four fractured ribs, contusion of the lung, bleeding of the lung and concussion and post-concussion syndrome. Following the accident, plaintiff was hospitalized at Mammoth Hospital for three days. Upon returning to Ventura County, plaintiff was admitted to the Ojai Hospital and was subsequently admitted to the Santa Barbara Cottage Hospital for a cervical surgery on Feb. 9, 2016. Following the surgery, plaintiff was admitted to a convalescent care facility for rehabilitation treatment for approximately 10 days. Thereafter, plaintiff underwent physical therapy and rehabilitation for approximately six months.

Result

Plaintiff made a written offer to settle within policy limits under defendant's homeowner's insurance policy with Traveler's Insurance Co., providing liability coverage of $400,000 plus $2,000 of medical expense coverage. Following the written offer to settle within policy limits plaintiff served a CCP 998 offer to compromise. Defendant accepted the policy limits settlement and paid the sum of $402,000.

Other Information

FILING DATE: Feb. 28, 2016.