Evidence of Cloud Nine alcohol consumption at center of skier suit over Aspen Highlands collision

Rick Carroll
Aspen Times
Liftie Ben Pilger helps a family onto the Thunder Bowl Lift at Aspen Highlands on Nov. 26, 2020.
Kelsey Brunner/The Aspen Times

ASPEN — A legal battle over the admission of evidence indicating a man drank alcohol before he collided with another skier is playing out in a lawsuit that casts the spotlight on skiing after partying at Cloud Nine Bistro at Aspen Highlands.

Following 90 minutes of oral arguments among lawyers on Thursday, Pitkin County District Judge Chris Seldin delivered three rulings in Daniel Leahy’s civil lawsuit that alleges Dean Katamanin’s inebriation led to a violent skier collision nearly three years ago. Both men are from Illinois but did not know of each other until after the crash.

A jury trial is scheduled to run Oct. 9-19. The jury panel would comprise six members and two alternates, according to court documents.

This week’s rulings pertaining to evidence and procedure were the latest developments in a lawsuit stemming from a two-skier collision on Feb. 13, 2020. The crash happened on a catwalk at the bottom of the intermediate Upper Jerome run, which is near the base of Highlands. 

The lawsuit alleges Katamanin was drinking at the on-mountain party hub Cloud Nine before the crash. He left Cloud Nine around 4 p.m. then skied excessively fast down Highlands before crashing into Leahy, the downhill skier, and fled the scene without exchanging his contact information with Leahy, who broke his humerus and suffered other injuries. As the uphill skier, Katamanin also was required to yield under the Colorado Ski Safety Act, the suit said. 

Leahy learned of Katamanin’s identity the day after the crash, Feb. 14, according to the suit. That’s when he saw social-media photos and videos of Katamanin spraying Champagne at the reservations-only Cloud Nine — roughly one hour before the catwalk collision. 

Katamanin has denied the allegations that came out in Leahy’s lawsuit filed May 8, 2020. Filings from Katamanin’s lawyers also allege Leahy caused the crash, and he, too, had been drinking before the incident. 

“While Plaintiff (Leahy) points to Dean (Katamanin) ‘spraying champagne inside the restaurant,’ he fails to disclose he also sprayed champagne. In fact, his table ordered 35 bottles of spray champagne, compared to only 15 for Dean’s table. Indeed, when Dean approached Plaintiff after the collision, Dean determined that Plaintiff smelled of alcohol,” said a November filing from Katamanin’s lawyers.

Leading up to this week’s hearing, Katamanin’s legal team filed a motion, asking Seldin to rule in their favor on summary judgment on the grounds that Leahy’s lawsuit had failed to provide “specific evidence to show a genuine, material issue exists for determination at trial.”

The motion argued the plaintiff’s evidence couldn’t prove Katamanin was legally drunk or that his alleged intoxication was the direct cause of the collision. The suit also wrongfully accused Katamanin of fleeing the scene, the motion said.

“After the ski patrol arrived and began attending to Plaintiff (Leahy), ski patrol advised Defendant (Katamanin) and his group they would take it from there. There is no evidence that anyone, including ski patrol or Plaintiff, ever asked Defendant for his identifying information,” the motion said. 

Seldin has not ruled on that motion, which seeks summary judgment in Katamanin’s favor on four negligence per se claims and one claim for exemplary damages.

Seldin also has not decided on Leahy’s motion for partial summary judgment, which was filed Nov. 4. Since then, there had been 63 filings in the suit (that does not include exhibits) as of Friday. 

Leahy’s motion for partial summary offers a different version of what happened. The filing asks Seldin to rule favorably on Leahy’s claim that Katamanin was liable for skiing while impaired by alcohol and liable for fleeing the vicinity of the ski collision without identifying himself to ski patrol or another ski area employee.

“It is undisputed, as a matter of law, that Defendant Katamanin violated the Skier Safety Act when he skied into Plaintiff Leahy impaired by alcohol,” said the motion. 

The motion also noted that, at deposition, Katamanin said “that he consumed two beverages, one of which was a mixed-liquor drink with cranberry and sipped beer and champagne.”

“Defendant Katamanin doesn’t deny drinking, but at the same time, how could he?” the motion said. “His table spent over $2,653 on alcohol for 11 people in a one hour and forty-two-minute period.”

Seldin has not ruled on that motion for partial summary judgment, but, on Thursday, he ruled against Leahy’s attempt to strike Katamanin’s response to the motion. The response said an alcohol tab isn’t indicting evidence against Katamanin.

“This does not in any way prove Dean was impaired at the time of the collision,” the response said. “What alcohol was ordered by 11 people at a table does not establish what was drank by those persons, including Dean, at the table. The evidence is also undisputed that those at the table at which Dean was seated sprayed the champagne. Plaintiff also has no evidence when Dean drank alcohol, how much alcohol was drank, what type of alcohol was drank, what time it was drank, or what, if any, level of alcohol Dean had in his system at the time of the collision, which occurred long after the drinking took place at the restaurant.”

Katamanin did not flee the scene and was given permission from ski patrol to leave, according to the response.

“There is no evidence that anyone, including ski patrol or Plaintiff, ever asked Defendant for his identifying information,” the response said. 

Another filing from Katamanin’s legal team — a motion to exclude the evidence of alcohol use by Katamanin before the crash — said “evidence of impairment consists solely of Dean’s deposition testimony where Dean testified that he drank one drink with cranberry juice mixed with some type of alcohol, one sip of champagne and might have had one sip of beer with a meal hours before the collision, but prior to the collision was completely sober, had all of this faculties, and was able to safely ski.”

Evidence that Katamanin had been drinking “should also be barred because it is more prejudicial than probative,” the motion said.

Katamanin’s defense team is made up of Chicago lawyers James Borcia and Jamie Gende. Aspen lawyer Michael Fox is representing Leahy.

“The motions filed and yesterday’s hearing generally discussed what evidence may come into our trial. These are normal steps in litigation,” Fox said in a statement Friday. “Moving towards trial, we look forward to getting justice for our client. It’s just not OK to ski drunk, collide into a skier, and then ski away without giving your information to ski patrol.”

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