Kenneth Salvini v. Ski Lifts Inc.
Appeal of Record Verdict in Ski Accident Case*
Not reported Cite as: 2008 WL 4616708 (Wash.App.Div.1)
Facts
While attempting a terrain park ski jump at Snoqualmie ski area, Kenneth Salvini was severely injured. Salvini and his parents brought a negligence claim against the owner-operator of Snoqualmie, Ski Lifts, Inc. At the conclusion of the trial, the jury found Salvini 55 percent at fault and Ski Lifts 45 percent at fault. The jury also found that Salvini had suffered approximately $30 million in damages, resulting in a judgment against Ski Lifts of approximately $14 million making it the largest jury verdict in an U.S. ski case. The trial court denied Ski Lifts' motion for a new trial.
Ski Lifts appealed, arguing that the trial court improperly instructed the jury on duty, inherent risk, and signage, and that it admitted prejudicial and irrelevant evidence of prior accidents.
Analysis
Evidence of Prior Accidents
On appeal, Ski Lifts argued that the trial court abused its discretion in admitting evidence and testimony regarding 15 prior incidents of overshooting the same jump at which Salvini was injured. The trial court ruled that these incident reports were not admissible "as substantive evidence of the existence of a dangerous condition," but that they were sufficiently similar "to put Ski Lifts on notice of a potential defect to warrant further inquiry into the design of the jump, or the reasonableness of the signage in light of the multiple injuries caused as a result of overshooting the landing of the jump in question." The ruling was consistent with previous case law where it was held that evidence of prior accidents which occurred under substantially similar circumstances is admissible for the purpose of demonstrating a dangerous condition or notice of a defect.
Ski Lifts then moved the court for a limiting instruction on the admission of prior incident reports and the trial court granted Ski Lifts' motion. In the appeal, Ski Lifts argued that any probative value was out-weighed by the extreme prejudicial effect, because Salvini's counsel and expert witnesses referenced the incident reports not just to demonstrate notice, but also to show that the jump was improperly designed and unreasonably dangerous. But although Ski Lifts lodged "a continuing objection regarding the accident reports," it never objected to Salvini's closing argument or trial testimony that allegedly went beyond the limited purpose of notice. The trial court ruled that Salvini would be allowed to present evidence of prior incidents for the limited issue of notice, but Ski Lifts was still required to object when Salvini's counsel elicited improper testimony in violation of the motion in limine so that the court could attempt to cure any resulting prejudice.
The issue was raised for the first time Ski Lifts' motion for a new trial. To challenge a trial court's admission of evidence on appeal, a party must raise a timely and specific objection at trial. By failing to do so, Ski Lifts waived review of the issue, the appellate court finding Ski Lifts' nonspecific continuing objection insufficient to preserve the issue for appellate review. Because Ski Lifts did not timely object to the improper argument and testimony, the court of appeal found that Ski Lifts waived any challenge to it on appeal.
Jury Instruction on Inherent Risk
On appeal, Ski Lifts argued that the trial court erred in refusing to give a proposed jury instruction which stated: "An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport." Washington state has a ski safety statute which sets forth the responsibilities of skiers and ski area operators. The statute provides that "[b]ecause of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety."RCW 79A.45.030(6). Case law has established that a defendant does not have a duty to protect a sports participant from dangers which are an inherent and normal part of a sport, but although the statute imposes both primary and secondary duties on skiers, it does not purport to relieve ski operators from all liability for their own negligence. Specifically, risks caused by negligent provision of dangerous facilities are not "inherent" in a sport. Nothing in the statute specifically addresses terrain park ski jumping.
Washington's ski statute does not define "inherent risk." The language of Ski Lifts' proposed instruction is drawn from an intermediate California appellate court decision, Vine v. Bear Valley Ski Co., 118 Cal.App. 4th 577, 13 Cal.Rptr.3d 370 (2004). In Vine, a snowboarder who was seriously injured on a terrain park ski jump brought a negligence action against the ski area. On appeal, the California court found error by the trial court failing to instruct on inherent risk.
Ski Lifts argued that under the reasoning of Vine, the trial court's failure to give Ski Lifts' proposed jury instruction defining the inherent risks of terrain park jumping deprived it of the ability to argue that the risks that caused Salvini's accident were inherent in the sport and that he was responsible for his own injury. Salvini contended that the jury instructions given by the trial court were an accurate statement of the law and that Ski Lifts' proposed additional instruction was unnecessary for Ski Lifts to argue its theory of the case. . In fact, Ski Lifts did define the inherent and normal risks very broadly in crafting its argument to the jury. The appellate court found Ski Lifts' additional instruction defining "inherent risk" was unnecessary and superfluous, pointing out that the jury attributed 55 percent of the fault for the accident to inherent risk and Salvini's own negligence. Thus, the trial court did not abuse its discretion in refusing to give a proposed instruction derived from California common law that was unnecessary to allow Ski Lifts to fully argue its theory of the case.
Jury Instruction on Failure to Warn
Ski Lifts argued that Salvini offered no evidence of proximate cause to support his claim that Ski Lifts was liable on a failure to warn theory. Both parties presented evidence at trial regarding the reasonableness and adequacy of the warning signs. Expert witnesses for Salvini testified extensively regarding the inadequacy of Ski Lifts' warning signs. Salvini testified that he did not see the whiteboard sign. Salvini's skiing companion and Salvini's father, as well as several Ski Lifts employees, also testified that they did not see the sign. Expert witnesses testified that Ski Lifts should have designated a starting point for the jump to prevent skiers from gaining too much speed and overshooting the jump. Salvini argued in closing that the jump was not reasonably safe and that the signage failed to warn of the specific hazard known to Ski Lifts. He did not contend that Ski Lifts was additionally liable on a separate failure-to-warn theory.
Ski Lifts further contended that it had no duty to warn Salvini because he had used the jump before and was fully aware of its condition. This argument is not persuasive. Salvini's previous use of the jump would not necessarily put him on notice that its design could increase the risk of severe injury from overshooting. Whether the jump's deficiencies were "known and obvious" and whether Salvini should have anticipated the harm was properly a question of fact for the jury. The court of appeals found that the jury instructions properly allowed Ski Lifts to argue that the alleged defect was known or obvious, while also allowing Salvini to argue that it was not.
Jury Instruction on Duty to Discover Dangerous Conditions
Ski Lifts argued that instruction 15 misstated the duty owed by a ski area operator regarding the discovery and elimination of dangers, thereby erroneously holding Ski Lifts to an improperly broad duty to protect Salvini. Specifically, Ski Lifts objected to the final sentence: The operator of a ski area owes a duty to its customers to discover dangerous conditions through reasonable inspection, and repair that condition or warn the skier unless it is known or obvious.
The court of appeal disagreed with Ski Lifts and held that instruction 15 accurately summarized the well-established duty of care owed by ski area operators to skiers.
Conclusion
The Washington Court of Appeals found we that the jury instructions accurately stated the law, were not misleading, allowed Ski Lifts to argue its theory of the case, and were supported by substantial evidence. Further, it concluded that the prior incident reports were properly admitted.
