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DeWolf v. Mt. Hood Ski Bowl, LLC

Court of Appeals of Oregon

March 22, 2017

Harry DeWOLF, Personal Representative of the Estate of Taylur DeWolf, Plaintiff-Respondent,
MT. HOOD SKI BOWL, LLC, Defendant-Appellant.

          Argued and submitted August 26, 2015

         Multnomah 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 Witt.

          Lisa T. Hunt argued the cause for respondent. With her on the brief was Law Offce of Lisa T. Hunt, LLC.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.


          ARMSTRONG, P. J.

         Plaintiff, 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.

         We 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.

         During 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 Taylur died.

         In 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.

         In late 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.

         With 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.

         The 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 discovery."

(Emphasis added.)

         Defendant 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 grade."

         Plaintiff 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 assertion.
"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 is?
"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 ...

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