Ms. Ulissey did not see Mr. Shvartsman when he collided with her. Mr. Shvartsman also stated he did not see Ms. Ulissey. However, if he is the uphill skier, as the district court found, he had to see her before the collision. None of the individuals on the slope that day who saw either party before or after the accident, actually saw the collision itself. The record, thus, discloses a dispute over a material fact which affects the outcome of the action and, under Colorado law, is the first step toward determining liability.
None has a formulaic answer, but each reminds that material issues of fact remain unresolved.
So, while the application of principles of physics may be helpful to order the facts once they are established, the axiom relied upon by the district court has no fundament. Indeed, it is even conceivable that a skier traversing the fall line could do so faster than one traveling in the direction of the fall line. Counsel stated the axiom was based on the rate of descent, not the speed of travel. That surmise reveals the underlying evidentiary conflict that granting the motion for summary judgment simply whited out. This disposition necessarily abates our consideration of Mr. Shvartsman's second issue on appeal related to the award of damages.