Citing a Colorado court decision regarding a wrongful death case where alcohol was a contributing factor, a judge has ruled the victim of an alleged hit-and-run ski crash may pursue punitive damages in his lawsuit against a skier accused of crashing into him while under the influence.
Judge Chris Seldin’s one-paragraph order came Wednesday after plaintiff’s attorneys for an Illinois man filed a motion seeking the court’s permission to amend the lawsuit to include a claim for punitive damages, which are separate from actual losses and also can serve to punish a defendant.
In this case, the defendant is Chicago resident Daniel Katamanin, who is being sued for negligence in Pitkin County District Court over a Feb. 13, 2020, skiing collision on the catwalk at the bottom of Upper Jerome, an intermediate run on Aspen Highlands.
The accuser suffered a broken humerus and other injuries as a result of the crash, claimed the lawsuit, which was filed in May 2020. Civil accusations faced by Katamanin include violating Colorado’s Ski Safety Act by being under the influence at the time of the crash and not exchanging contact information with the skier after the collision. Katamanin also was the uphill skier and didn’t yield before the crash, the suit alleged.
The original complaint is seeking compensation for medical expenses, pain and suffering, past and future wage losses, emotional distress and permanent disability, as well as emotional anxiety, disability and embarrassment, and past and future loss of normal life.
Seldin’s order said the punitive claim may be added to the suit because Colorado law allows exemplary damages if there is circumstantial evidence of intoxication.
As part of the evidence-exchanging process known as discovery, Katamanin affirmed he had been drinking the day of the crash, noted the ruling. The lawsuit, which was filed by the Aspen firm Kalamaya | Goscha, also cited images and videos on social media that showed Katamanin spraying Champagne at Cloud Nine Bistro approximately an hour before the incident. Cloud Nine is an on-mountain, reservations-only, party-focused restaurant located around the midpoint of Aspen Highlands.
“Defendant admits in his interrogatory responses that he consumed alcohol before the accident,” the judge’s order said. “Photographic evidence substantiates this.”
The order also referenced a court decision from 2016 where the family of a deceased victim of a traffic crash sued a driver for wrongful death.
After a Denver jury in 2014 awarded $2.25 million to the mother of Abdul Alhilo, defendant Daniel Kliem appealed the verdict, in part because of his attorneys’ contention that the evidence didn’t suffice to allow punitive damages.
Kliem drove away from the 2011 crash and abandoned his Jeep, where authorities found marijuana and open beer bottles. He turned himself two days later, so authorities couldn’t test what his blood-alcohol level was at the time of the crash. Yet plaintiff’s attorneys were allowed to introduce the circumstantial evidence of alcohol-consumption found in his vehicle, as well as his prior driving history that included two alcohol-related convictions.
“However, the alcohol containers found in Kliem’s vehicle, and the facts that he failed to immediately seek medical attention for his severe injuries, fled the accident scene, and failed to immediately turn himself in to police constitute sufficient circumstantial evidence to support the exemplary damages award,” according to a summary of the case on the Colorado Bar Association’s website.
The Colorado Court of Appeals upheld the verdict, which also found Kliem to be 55% at fault, and Alhilo 45%.
In the Cloud Nine case, each side also says the other side is to blame.
Defense attorneys in pleadings have alleged the plaintiff was intoxicated when the accident happened, and that circumstantial evidence — which in addition to the social-media postings includes a receipt for $4,704 from the on-mountain restaurant — doesn’t prove Katamanin was the at-fault party.
Even so, Seldin’s order said circumstantial evidence can be used in the pursuit of a punitive award.
“Colorado law permits an award of exemplary damages upon circumstantial evidence of intoxication,” Seldin’s order noted.
As well, a jury “could draw inferences” that Katamanin had been drinking, “as in Alhilo,” the judge’s order said, “from the fact that he left the accident scene before ski patrol arrived.”
While the defense sees what happened differently, it will be up to a jury to conclude who’s to blame, the judge’s order said.
“Defendant argues a contrary version of the facts, but this simply presents a jury question,” the order said.
Attorneys with both Kalamaya | Goscha and the Denver firm Hall & Evans, which is representing Katamanin in his defense, did not respond to requests seeking comment.