Aspen Skiing Co. v. Peer

• Decision Date: 14 January 1991
• Docket Number: No. 89SC548,89SC548
• Citation: 804 P.2d 166
• Parties: ASPEN SKIING COMPANY, Petitioner, v. Leslie PEER, Respondent.
• Court: Colorado Supreme Court

Page 166

804 P.2d 166

ASPEN SKIING COMPANY, Petitioner, v. Leslie PEER, Respondent.

No. 89SC548.

Supreme Court of Colorado En Banc.

Jan. 14, 1991.

Rehearing Denied Feb. 4, 1991.

Arnold & Porter, James E. Scarboro, Tim Atkeson, Barry K. Arrington, Alfred T. McDonnell, Denver, for petitioner.

Goss & Waltz, Douglas K. Goss, Sherman & Howard, Lee Dale, Denver, for respondent.

Justice QUINN delivered the Opinion of the Court.

We granted certiorari to review the unpublished decision of the court of appeals in Peer v. Aspen Skiing Co., No. 88CA0190 (August 10, 1989), which affirmed the trial court's denial of a motion for a new trial filed by the defendant, Aspen Skiing Co. (Aspen Skiing), based on newly discovered evidence in the form of allegedly perjured testimony offered by the plaintiff, Leslie Peer, in the trial of his personal injury claim. The court of appeals did not consider the allegedly perjurious nature of Peer's testimony, but instead held that Aspen Skiing had failed to establish reasonable diligence in discovering the evidence. We agree with the court of appeals' conclusion that Aspen Skiing failed to satisfy the reasonable diligence requirement, and we also hold that Aspen Skiing failed to demonstrate that Peer gave perjured testimony during the trial. We accordingly affirm the judgment of the court of appeals.

I.

A summary of the factual and procedural history of this case will place the issue before us in proper focus. In August 1984 Peer sued Aspen Skiing for serious and totally disabling injuries as a result of a skiing accident on Thanksgiving Day, November 25, 1982, which was the first day of the ski season, on a slope known as "Ruthie's Run" located on Aspen Mountain in the City of Aspen and operated by Aspen Skiing. The accident occurred when Peer skied over a steep depression caused by a service road that traversed Ruthie's Run. As a result of the accident, Peer suffered a broken neck and was rendered a quadriplegic. He alleged in his complaint that Aspen Skiing was negligent in creating and maintaining a sudden and steep transition or depression on the slope and in failing to adequately warn skiers of its presence. Aspen Skiing denied any negligence and alleged that Peer assumed the risk of a known danger and that his injuries were caused by his own negligence.

One week after the accident, on December 2, 1982, Richard LaVigne, who was a close friend of Peer and was skiing with him on the day of the accident, made a statement to an investigator about the manner in which the accident occurred. LaVigne told the investigator that he and Peer had been skiing together and were testing a giant slalom ski, which was designed to be skied at very fast speeds, and then stated:

I think the problem was that it was a little after 2, the sun is very low this time of the year here and the light, the sun had just gone behind a cloud and it was very flat light and he had smoke-colored goggles on, dark-colored goggles I would have to, I'd have to guess that he just didn't see it.

LaVigne acknowledged in his statement that he knew of the presence of the transition in the slope where the accident occurred and told the investigator that Peer "had skied through it two or three times and I'm sure, you know, at one time knew it was there." LaVigne also told the investigator that immediately before the accident he had reduced his speed, then saw that Peer was not slowing down at all but looking beyond the transition, and at that point LaVigne knew that Peer had not seen the transition and was going to have an accident.

After the complaint was filed, Aspen Skiing served Peer with 183 interrogatories. Peer answered these on September 4, 1985. In his answers Peer acknowledged that he was an expert skier and had skied "most if not all of the ski trails on Aspen Mountain" over a period of several years prior to the accident. In another answer Peer stated that he did not know if he had skied Ruthie's Run prior to the accident but he thought he had "skied this trail once each time I skied." Peer acknowledged in his answers that Ruthie's Run was a "more difficult" trail and described the accident as follows:

I was skiing down a slight pitch after the flat of upper Ruthie's Run making turns when I encountered an unexpected irregularity in the slope where there was a sharp drop-off and transition from the slope to the service road. I found myself airborne and weightless. I landed on my head, heard a sharp crack in my neck and became unconscious.

I was traveling downhill in full line preparation to a turn to the left and my speed was comfortable for the conditions and the terrain. I estimate that my speed was approximately 15 to 20 miles per hour at the transition where the accident occurred. In the upper flats I estimate my speed to have been 25 miles per hour. I was generally traveling in a northerly direction.

When asked in the interrogatories to describe any objects or conditions that contributed to the accident, Peer responded:

Failure to post a sign warning of the dangerous condition encountered and permitting this dangerous condition to exist on the slope.

Peer was also asked to identify any witnesses to the accident or witnesses to the events immediately preceding or following the accident. He responded as follows: Richard LaVigne, Post Office Box 7845, Aspen, Colorado, who was skiing with him at the time of the accident; Penny Gage, 3120 Kittrell Court, Boulder, Colorado, and John B. and Jackie Wogan, 1133 Race Street, Denver, Colorado, all of whom were riding the lift and saw the accident; and Michael Teschner, Post Office Box 4638, Aspen, Colorado, who had seen him skiing prior to the accident. Peer also disclosed to Aspen Skiing the following names and addresses of the persons with whom, in addition to LaVigne, he had skied on the date of the accident prior to its occurrence: Carlos Gendron, 512 E. 79th Street, New York City, New York; Jeanie Renchard, Post Office Box 9296, Aspen, Colorado; David Foster, 437 West Smuggler, Post Office Box 8117, Aspen, Colorado; Janet M. Lightfoot, Post Office Box 9456, Aspen, Colorado; and Lefty Brinklman, Aspen, Colorado; and a person by the name of Marty.

In 1985, approximately three years after the accident and two years prior to trial, Aspen Skiing deposed LaVigne and Peer. During LaVigne's deposition, Aspen Skiing asked him to review his statement of December 2, 1982, and to correct or explain any inaccuracies in the statement. LaVigne responded as follows:

There are a couple of things that do not seem accurate. And I know I said these things. I indicated in a couple of different paragraphs that Les [Peer] had skied that run two or three times previous. As I think about it now, I don't think that he had skied that run previously. I had skied it two or three times previously, but I don't believe--I am not positive. He may have skied it on his own. You would have to ask him.

In the course of deposing Peer, Aspen Skiing also confronted him with LaVigne's statement to the investigator. Peer stated that he had not skied Ruthie's Run earlier that day but indicated that he would need a map of Aspen Mountain "to be able to say for sure" what trails he had skied prior to the accident. Peer also testified in his deposition as follows:

Q: Have you by any chance reviewed a statement given by Dick LaVigne?

A: I think I have. Yes.

Q: Do you recall in that statement ... he [LaVigne] at one point in his statement indicated that you and he had skied Ruthie's [Run] two or three times earlier that day[?]

A: I think he's in error in that. I think that was a bit of a traumatized day for [LaVigne] and I think it's possible that--

Q: Do you recall that statement he made, because I'll show it to you[?]

A: No. I've been shown the statement.

Q: So you know the statement to which I'm referring?

A: Yes, I do.

Q: And you think he's in error about that particular aspect of the statement?

A: Yes.

Trial to a jury commenced on September 24, 1987. In opening statement Peer's counsel told the jury that the evidence would show that Peer was skiing Ruthie's Run with LaVigne and was approaching the area where the service road traversed the slope, that LaVigne tried to yell a warning to Peer about the steep transition but was unsuccessful, that Peer hit the transition and fell, and that Aspen Skiing was negligent in permitting an extremely dangerous condition to exist on the slope and in failing to warn skiers of its presence. Aspen Skiing, in its opening statement, told the jury that it would establish that the cause of the accident was the high rate of speed at which Peer was skiing "for this first run of the trail on the first day of the season."

The evidence at trial established that on the day of the accident there were numerous ski trails on Aspen Mountain, each with a different name and some of them intersecting one or more other trails at various points from the top of the mountain to the bottom. There were several chairlifts which carried skiers to various locations on the mountain. One of the chairlifts was located at the bottom of Ruthie's Run and carried skiers directly over Ruthie's Run. A skier could also reach Ruthie's Run by skiing trails commencing at the end of other chairlifts. There were numerous ski trails that angled off of the main trail serviced by the chairlift located at the bottom of Ruthie's Run.

Ruthie's Run was about 300 feet wide at the area where the service road traversed the run. There was a sudden and severe drop at varying degrees at different points along the intersection of the slope and the service road. The transition encountered by Peer consisted of a drop of four or five feet at an angle of approximately 90 degrees.

LaVigne testified at trial and stated that he had not previously skied Ruthie's Run with Peer on the day of the accident, but that he had skied the run by himself two or three times. According to LaVigne's trial testimony, at the...