Carrion v. Mountain Creek Resort, Inc.
| Decision Date | 10 September 2020 |
| Docket Number | DOCKET NO. A-1731-18T3 |
| Parties | DIANE CARRION and JOHN CARRION, Plaintiffs-Appellants, v. MOUNTAIN CREEK RESORT, INC., Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Accurso, Gilson, and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0315-14.
John J. Scura, III, argued the cause for appellants (Scura, Wigfield, Heyer, Stevens & Cammarota, LLP, attorneys; John J. Scura, III, of counsel and on the briefs; Guillermo J. Gonzalez, on the briefs).
Samuel J. McNulty argued the cause for respondent (Hueston McNulty, PC, attorneys; Samuel J. McNulty and John Francis Gaffney, on the brief).
Plaintiff Diane Carrion and her husband John, who sued per quod, appeal from the denial of their new trial motion following a no-cause verdict after a fourteen-day jury trial. Finding no error, we affirm.
Plaintiff was severely injured in a ski accident at defendant Mountain Creek Resort, Inc. in February 2013. Plaintiff, then fifty-five, a self-described expert skier, had been skiing since she was seven- or eight-years-old. Although she had learned to ski at Mountain Creek and had skied there for years, she had never skied the resort's Pipe Line trail, an "expert only," double black diamond trail, the resort's steepest and most difficult.
On the day of her accident, the Pipe Line trail was deemed by ski patrollers too icy to open early in the morning. The parties disputed when ski patrol opened it. Defendant claimed it opened Pipe Line at 11:00 a.m. Plaintiff claimed it didn't open until after 1:00 p.m., and that she and her friend were the first skiers down. Plaintiff admitted seeing the sign at the top of the trail, which read:
The Pipe Line trail started out relatively flat for a short distance and then dropped off very steeply from a breakover or headwall. Besides being steep, the trail was relatively narrow. Off-trail to the skier's right were rocks, while off-trail to the left were trees, light poles and snow-making equipment, including water and air pipes, hydrants and several poles or mounting pipes for snow-making guns. Bamboo markers topped with orange disks, called lollipops, marked the left edge of the trail for at least some of its length.
Plaintiff testified she was still on the flat section of the trail, about ten feet from the drop off when she tried to stop, but could not because the surface was like a sheet of ice. She went down on her right side, in what she described as a defensive maneuver, while trying to unsuccessfully dig her skis in to catch an edge. Plaintiff's companion testified she was five to six feet behind plaintiff, pausing to scope out the trail, when plaintiff "took right off" skiing over the headwall without stopping. According to a report prepared by the ski patrol shortly after the accident, plaintiff slid from right below the headwall in the middle of the trail diagonally to her left, leaving the trail and continuing for twenty-five feet, and then slid another 120 feet downhill, striking a four-and-a-half-inch diameter mounting pipe for a snowmaking gun, located ten feet off the trail and 350 feet from the top.
The mounting pipe was damaged the month before plaintiff's accident when a winch cable attached to a trail grooming machine hit it, causing it to lean over. While defendant removed the snowmaking gun from the damaged mounting pipe, and secured it nearby, it did not remove the damaged pipe. Defendant's risk manager testified the pipe could not be removed during the winter because defendant could not get the necessary machinery to do the job on the steep, snow-covered slope. Defendant claimed it didn't want to cut it down for fear the pipe could become a hazard as the level of snow decreased later in the season. The resort was also interested in preserving the hole for the mounting pipe, so it could replace the pipe and restore the gun to the same position for next ski season.
Plaintiff's theory was that defendant violated the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -11, requiring ski resort operators, "to the extent practicable," to "[r]emove as soon as practicable obvious, man-made hazards." N.J.S.A. 5:13-3(a)(3). She claimed defendant should have either removed the pipe or reinstalled the "Gilman padding" on the brackets provided on the mounting pipe, and that either would have prevented her injuries. Plaintiff claimed the damaged pipe was no longer "snow-making equipment" but instead was a rusty, bent pipe with mangled bracketing abandoned on the trailand not visible to her at the icy headwall. Plaintiff also contended defendant was negligent in opening the Pipe Line trail, which she contended was too icy to ski safely.
Defendant maintained that the damaged mounting pipe was both ten feet off the trail and clearly visible to skiers from above, making it not a "hazard" under the ski statute. The resort claimed that Gilman padding was primarily a warning device to make an obstacle visible to skiers, as it offered protection to skiers in only low-speed impacts as might occur on beginner slopes. Defendant claimed it did not use Gilman padding on Pipe Line, a fact vigorously disputed by plaintiff. The resort claimed its ski patrol skied the Pipe Line trail both before deciding it was too icy to open when the resort opened for the day, and later before deciding the sun had warmed the slope to soften the surface enough for expert skiers to traverse. Defendant argued the accident resulted from plaintiff skiing a slope beyond her abilities, and, based on the testimony of its biomechanical expert, that Gilman padding would have made no difference in her injuries given her twenty-two miles per hour speed at impact in an uncontrolled fall.
After hearing the testimony of eleven fact witnesses and eleven experts, the jury unanimously voted that plaintiff had not proved that defendant hadviolated the Ski Statute. Plaintiff filed a timely motion for new trial on three grounds, the same issues she raises on appeal: 1) that she was entitled to a spoliation charge based on defendant's disposal of the mounting pipe and bracketing; 2) that the court erred in permitting defendant to argue that the damaged mounting pipe was an "obstacle" instead of a "hazard" as defined in the Ski Statute; and 3) erred in allowing defendant to present testimony that the condition of the surface of the Pipe Line trail after its delayed opening did not prevent other skiers from successfully skiing the slope.
The facts on the spoliation issue are not disputed. Very shortly after the accident, plaintiff's counsel sent a letter to Mountain Creek to preserve evidence and make the Pipe Line trail available for inspection. Suit was filed in January 2014, eleven months after the accident. Plaintiff's ski area operations and risk management expert inspected the damaged pipe and bracketing in place in September 2014. They were joined by a professional photographer, who took pictures and a video. Defendant's maintenance staff thereafter removed the damaged pipe and disposed of it in anticipation of the 2014-2015 ski season.
Six months later, plaintiff filed a motion to extend discovery. In a certification in support of the motion, plaintiff's counsel stated he might need asecond site inspection of the area where plaintiff was injured. Thereafter, defendant revealed it had cut down the pipe after the site inspection and scrapped it, the maintenance staff not having been instructed it needed to be retained.
Plaintiff's biomechanical expert, who conceded he would not have been able to do any testing of the pipe on the slope due to its steepness, conducted exemplar testing demonstrating that had Gilman padding been in place on the brackets attached to the damaged pipe, that plaintiff would have suffered only minor injuries. Defendant's motion to block the expert's third report detailing that testing and any trial testimony about it was denied. Plaintiff's cross-motion for a spoliation charge was denied without prejudice, with the motion judge specifically providing it could be renewed before the trial judge on an in limine motion.
Plaintiff renewed her motion for a spoliation charge in limine, which the trial judge denied. The judge applied the four-factor test for determining the existence of a duty to preserve evidence independent of a court order we endorsed in Aetna Life & Casualty Co. v. Imet Mason Contractors, that is: "(1) pending or probable litigation involving the defendants; (2) knowledge by the plaintiff of the existence or likelihood of litigation; (3) foreseeability of harmto the defendants, or in other words, discarding the evidence would be prejudicial to defendants; and (4) evidence relevant to the litigation." 309 N.J. Super. 358, 366 (App. Div. 1998) (quoting Hirsch v. Gen. Motors Corp., 266 N.J. Super. 222, 250 (Law Div. 1993)). The judge had no hesitation finding factors one, two, and four. He could not, however, find any prejudice to plaintiff flowing from defendant's destruction of the pipe after plaintiff's site inspection under factor three.
To continue reading
Request your trial