Harry DeWOLF, Personal Representative of the Estate of Taylur DeWolf, Plaintiff-Respondent,
MT. HOOD SKI BOWL, LLC, Defendant-Appellant.
and submitted August 26, 2015
County Circuit Court 121114815 David F. Rees, Judge.
Kimberley Hanks McGair argued the cause for appellant. With
her on the briefs were Brad C. Stanford and Farleigh Wada
T. Hunt argued the cause for respondent. With her on the
brief was Law Offce of Lisa T. Hunt, LLC.
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
ARMSTRONG, P. J.
Harry DeWolf, brought a wrongful death action against
defendant following the death of plaintiff's daughter,
Taylur DeWolf, while she was snowboarding at defendant's
ski resort. The jury found in favor of defendant, determining
that defendant was not negligent. However, after entering a
judgment on the jury's verdict, the trial court granted a
motion by plaintiff under ORCP 64 B for a new trial.
Defendant appeals the trial court's order granting a new
trial. We conclude that the trial court did not abuse its
discretion in ordering a new trial and, accordingly, affirm.
begin with the relevant facts. Taylur was snow-boarding at
night at Mt. Hood Ski Bowl when she lost control while on the
Dog Leg run, causing her to leave the run and collide with a
tree. She died at the scene from her injuries. Plaintiff, as
the personal representative of Taylur's estate, brought a
wrongful death action against defendant, the operator of Ski
Bowl. Plaintiff's complaint alleged that defendant
breached its duty of care to Taylur by (1) failing to warn of
the degree of difficulty of the Dog Leg run; (2) failing to
warn of the degree of difficulty or dangerous nature of a
feature on the Dog Leg run (a reverse grade) that caused
Taylur to lose control; (3) maintaining a dangerous feature
on the Dog Leg run that was not reasonably obvious or
apparent; (4) failing to eliminate or reduce the unreasonable
risk of harm from that dangerous feature by routing
non-experts away from it, eliminating the dangerous feature,
warning customers about the feature, or guarding against the
dangerous feature; and (5) failing to discover the dangerous
feature on the Dog Leg run.
discovery, plaintiff requested, among other things, that
defendant produce documents regarding injuries at Ski Bowl
over 10 ski seasons, inclusive of the 2011-2012 ski
season-the season in which Taylur died. Defendant refused to
produce documents, and plaintiff brought a motion to compel.
In April 2013, the trial court granted plaintiff's motion
in part, ordering defendant to produce documents of injuries
on the Dog Leg run during the two years before the day that
November 2013, plaintiff brought two motions in
limine related to the discovery order. First, plaintiff
sought to exclude "Ski Bowl's claims of 40 years of
safety" because, before 2002, the claimed dangerous
feature on the Dog Leg run was covered by trees. Second,
plaintiff sought to exclude "Ski Bowl statements or data
that there have not been other 'similar' injuries or
deaths on Dog Leg run because defendant has not produced the
injury data." Plaintiff argued that, because the court
had ruled that injury data more than two years before
Taylur's death was not within the scope of discovery, it
would be fundamentally unfair to permit defendant to refer at
trial to any data outside that date range.
November, about one and one-half weeks before the start of
trial, the court held a single hearing on all of the motions
in limine brought by plaintiff and defendant. With
respect to plaintiff's two in limine motions
described above, the court and the parties engaged in a
lengthy colloquy. Because it is important to our analysis, we
relate that colloquy at some length.
regard to plaintiff's motion to exclude defendant's
claims of "40 years of safety, " the court granted
it in part, "in that we're not going to talk about
the record of safety in areas outside the accident area,
" and denied it with respect to the accident area.
court then took up plaintiffs motion to preclude defendant
from discussing the absence of injuries or similar incidents
on the Dog Leg run for time periods for which defendant had
not produced documents. On that issue, the court began by
explaining that its April 2013 discovery ruling was based on
what the court believed the issues at trial were going to be,
which at that time did not include defendant's defense of
40 years of safety. The court then explained that it would
order an expanded scope of discovery in light of
plaintiff's motion in limine:
"I suppose if at the time I understood that you were
going to claim 10 or 40 years of safety, I might have ordered
you to produce evidence of any accidents on the Dog Leg run
dating back as far as you say there haven't been. So that
they can vet that.
"* * * I'll deny the motion on the condition
that the defendants produce any documents supporting that
there have been no accidents on the Dog Leg run for the
period of time that they claim there haven't been.
"So if you're going to say 40 years, you're
going to have to produce any documents that you have in your
possession, custody, or control of any accidents on the Dog
Leg run for the last 40 years. And, again, we're just
talking about the Dog Leg run.
"[PLAINTIFF]: You Honor, just so I'm clear, so they
need to-basically they've produced a certain type and set
of documents. They need to produce those for ten years?
"THE COURT: Well it depends on what statement- again, I
don't know what statements they're going to make at
trial. If they stand up and say: There have not been any
accidents on the Dog Leg run for the last 40 years, then-if
that's what your intention is, then you ought to produce
records-any records and documents in your custody or control
regarding any accidents that occurred on the Dog Leg run for
the last 40 years. Because you're-you're injecting it
into the case. You're injecting the relevance of 40 years
into the case. So they're entitled to that
responded that it would not assert at trial that there had
been no accidents on the Dog Leg run- because there had been
accidents-but it would assert that there had been no
accidents like Taylur's accident, specifically, an
accident with an "unexpected jump, fall line into the
trees that launches people into the trees." Plaintiff
objected to defendant being the arbiter of what constitutes
an accident that is "similar, " such that
defendant's obligation to produce documents would be
triggered. To that argument, the court ruled:
"But I suppose what [plaintiff's] valid concern is
it relies on you making the determination of what it means to
be 'like this.' And so to the extent that you are
construing 'like this' to mean someone had to die or
somebody had to run into a tree, I don't think that's
fair. If somebody has been-lost control after encountering
the reverse grade, that, to me, is enough 'like this'
to be discoverable. ******
"So what I'm-what I'm saying is if you're
going to make that claim, 'No accident has occurred like
this for the last ten years, ' they should get records
going back ten years on any accidents.
" [PLAINTIFF]: On the Dog Leg run. "THE COURT: On
the Dog Leg run relating to somebody encountering a reverse
asked the court to broaden the order because defendant's
accident documentation was not that specific. Defendant
objected to that because of the volume of records involved.
To that exchange, the court explained:
"First of all, it wasn't necessarily made clear to
me when I ruled on [the motion to compel discovery]. *** I
don't think I was operating under the assumption that you
were going to come into court and say: We've got a record
of ten years of safety with this particular terrain. Because
if I knew you were going to say that, I'd say: Well,
you've just injected relevance of ten years of records of
accidents on- in that area.
"* * *-if you do intend to go back that far, I think
they're entitled to records that go back that far. I
mean, nobody's going to make you say: We've got ten
years of no accidents on-on that-that terrain that was
exposed by the widening of the slope.
"What-I think they're entitled to records. If you
are going to make that argument-and you don't have to
make the argument-but if you are going to make the argument
that nobody ever before complained of this reverse grade and
unexpectedly catching air on this reverse grade, then you
have the obligation to produce documents that support that
"And it's too bad that it's close-this close to
trial. Maybe-maybe in your opposition to the motion to compel
it should have been more clear to me that you intended to
make that argument. It's not fair to the plaintiffs
for you to-for the Court to basically say: You get
to decide what's similar or not similar.
"[DEFENDANT]: Let me understand the ruling, then.
You're talking about any accident on Dog Leg wherever it
"THE COURT: As far back as you're going to go
with your argument. "[DEFENDANT]: Any accident
on Dog Leg? "THE COURT: No. "[DEFENDANT]: Way