Ponce v. Mountaineers, Corp.

• Decision Date: 02 November 2015
• Docket Number: NO. 72415-1-I,72415-1-I
• Court: Washington Court of Appeals
• Parties: DAVID PONCE and KARIM ZAPANA, individually and as Co-Personal Representatives of the Estate of JACOB PONCE, a deceased minor Child, Appellants/Cross-Respondents, v. THE MOUNTAINEERS, a Washington Corporation, Respondents/Cross-Appellants.

DAVID PONCE and KARIM ZAPANA, individually and as Co-Personal Representatives ofthe Estate of JACOB PONCE, a deceased minor Child, Appellants/Cross-Respondents, v. THE MOUNTAINEERS, a Washington Corporation, Respondents/Cross-Appellants.

NO. 72415-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

November 2, 2015

UNPUBLISHED OPINION

LAU, J. — This case involves whether, under the evidence rules, the trial court properly admitted expert industry custom testimony. In this premises liability action, David Ponce and Karim Zapana, individually and as personal representatives of the Estate of Jacob Ponce, sued The Mountaineers after their son died in a sledding accident.¹ Before trial, Ponce moved in limine to preclude The Mountaineers' winter recreation expert from testifying about industry custom, arguing that he lacked sufficient foundation. The trial court denied Ponce's motion and the jury returned a verdict for The Mountaineers. We affirm the judgment on the verdict.

FACTS

In 2011, The Mountaineers owned and operated a recreational facility known as the Snoqualmie Campus located at Snoqualmie Pass, Washington. The Mountaineers offered the campus for a variety of outdoor activities, including public snow sledding during winter weekends.

Customers parked along Washington State Route 906 (SR 906) near an access trail. A Mountaineer greeted customers and instructed them to hike up the access trail to the top of the hill to reach the recreation area. The volunteer also explained that at the top, a volunteer would greet them and provide additional directions. The customers were then asked to sign a release and pay a fee before they could proceed.

To reach the sledding area via the access trail, the customer would hike straight up on packed, groomed snow with a 10 to 20 percent variable grade.

In February 2011, 7-year old Jacob Ponce and his family went to the Snoqualmie Campus to go sledding. After parking along SR 906, a volunteer at the base of the trail directed them to walk to the top of the hill to reach the sledding area. After hiking about 65 feet, Jacob abruptly sat down on the sled his older sister was pulling, causing her to release the sled. The sled traveled down the trail and out into SR 906. A passing vehicle hit the sled and Jacob died a short time later from his injuries.

In May 2012, Jacob's parents, David Ponce and Karim Zapana, filed suit individually and as co-representatives of Jacob's estate against The Mountaineers. The complaint alleged that The Mountaineers failed to exercise ordinary care by not maintaining a barrier at the base of its access path to prevent sledders from entering the roadway.

Before trial, Ponce moved in limine to exclude The Mountaineers' winter recreation expert Chris Stoddard from rendering the following opinions:

1. The Mountaineers' design and setup of its snow-covered pathway met alleged "industry standards" or was similar to that of other sledding operations;

2. Safety measures such as placing a snow berm at the bottom of the pathway would have been dangerous;

3. The warning signs on the pathway were adequate.

Clerk's Papers (CP) at 319. Stoddard was prepared to offer his opinions, among other opinions, on how The Mountaineers' Snoqualmie Campus operation and its access path compared to other winter recreation sledding and tubing areas.

The Mountaineers also moved in limine to exclude Ponce's human factors expert, Richard Gill, based on his lack of relevant knowledge on sledding and snow recreation area operations.² The trial court denied both motions in limine.³

At trial, each side presented a standard of care expert witness. Ponce offered Richard Gill, a human factors expert and a professor of engineering. Gill stated that The Mountaineers should have installed a barrier between the access path and SR 906. He proposed three barrier options: construction of a berm, placement of hay bales, or installation of a plastic fence. According to Gill, by failing to construct a barrier, The Mountaineers created a hazardous condition "functionally hidden to the typical patron." Report of Proceedings (RP) (May 20, 2014) at 68.

The Mountaineers offered testimony from winter recreation expert Chris Stoddard. Stoddard stated that the access path was consistent with "industry best practices," and disagreed with Gill's opinion that the standard of care required The Mountaineers to install a barrier at the base of the path. CP at 456-57.

The jury returned a verdict finding The Mountaineers not negligent.

Ponce filed a motion for a new trial alleging the court erred by allowing Stoddard to testify regarding "industry standards." CP at 934. The trial court denied the motion.

Ponce appeals.

ANALYSIS

Ponce contends that "the trial court abused its discretion by admitting highly prejudicial expert testimony regarding . . . industry standard without sufficient foundational evidence establishing that a relevant industry standard exists." Br. of Appellant at 20.⁴ The Mountaineers offered Stoddard as its expert witness on the standard of care in the operation of a winter recreation facility.

Standard of Review

Appellate courts review a trial court's decision on expert witness testimony for an abuse of discretion. Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 357, 333 P.3d 388 (2014). "If the basis for admission of the evidence is 'fairly debatable,' we will not disturb the trial court's ruling." Matsunaga, 181 Wn.2d at 352 (quoting Grp. Health Coop. of Puget Sound, Inc. v. Dep't of Revenue, 106 Wn.2d 391, 398, 722 P.2d 787 (1986)). A court abuses is discretion if its decision is manifestly unreasonable or basedon untenable grounds or untenable reasons. Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668-69, 230 P.3d 538 (2010). The trial court has "broad discretion in ruling on evidentiary matters and will not be overturned absent manifest abuse of discretion." Cox v. Spangler, 141 Wn.2d 431, 439, 5 P.3d 1265 (2000). A court abuses its discretion if "it takes a view no reasonable person would take, or applies the wrong legal standard to an issue. . . ." Cox, 141 Wn.2d at 439. "[T]he trial judge has great discretion in ruling on the admissibility of expert testimony. Abuse of that discretion is much more likely to be found, however, with respect to the exclusion of expert testimony than when such testimony is admitted." ROBERT H. ARONSON & MAUREEN A. HOWARD, THE LAW OF EVIDENCE IN WASHINGTON § 8.03[4], at 8-15 (5th ed. 2014).

Admissibility of Industry Custom

Washington law is generally in agreement with the Restatement (Second) of Torts' formulation of the rule governing admission of industry custom. Admission of industry custom according to the Restatement (Second) of Torts § 295A (1965) provides:

In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them.

The parties agree that evidence of more than one business is required to establish custom or practice. In Washington, "where negligence is in issue, the usual conduct or general custom of others under similar circumstances is relevant and admissible, [but] such custom may not be established by evidence of conduct of single persons or businesses." Swartley v. Seattle School Dist. No. 1, 70 Wn.2d 17, 21, 421 P.2d 1009 (1966); Miller v. Staton, 58 Wn.2d 879, 885, 365 P.2d 333 (1961).Compliance with custom, although strong evidence of reasonable care, is not dispositive. See Meyers v. Meyers, 81 Wn.2d 533, 538-39, 503 P.2d 59 (1972); Peterson v. Pacific First Federal Sav. And Loan Ass'n, 23 Wn. App. 688, 693 n.3, 598 P.2d 407 (1979); Restatement (Second) of Torts § 295A (1965).⁵

An authoritative Washington evidence treatise warns against the use of a fixed rule to determine admissibility of industry custom or standard in favor of a flexible case-by-case approach:

In situations other than products liability actions, generalizations about the relevance of private, nongovernmental standards are hazardous. Each case must be judged on the basis of its own facts and the underlying substantive law. The evidence must, of course, be relevant to be admissible.

. . . .

To be admissible under this rule, industry standards or customs must be just that—standards or customs. The fact that one business or person (other than a party to the case) follows a certain practice may not rise to the level of a standard or custom, and may not be admissible under the instant rule.

5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 402.18, at 328 (5th ed. 2007).

Comment "a" of the Restatement (Second) of Torts § 295A (1965) states that customs and common practices "may be common to the community in general . . . or . . . limited to the common practices of a relatively small group of persons. . ."

In his sworn declaration and curriculum vitae filed in opposition to the motion in limine, Stoddard summarized his 39 years of extensive experience in winter recreation operations. He stated in relevant part:

2.1 have dedicated the majority of my adult life to the field of risk management in ski areas and related winter recreation. This specifically includes areas designated for sledding and inner-tubing operations.

3. [S]now tubing and sledding are very similar activities and may occur at the same location. Based on my experience and 39-year career in winter recreation, it is appropriate to equate snow tubing and sledding operations for the purposes of my opinions given their close similarities.

4.1 have worked in the ski and snowsports industry as a mountain operations staffer and manager; as an industry technical and educational program manager for the national Ski Areas Association; and as a consultant and author for decades. My work with ski and snowsports facilities is extensive and on-going. For many years, I inspected ski areas across the country for safety. . . . I've conducted 300-400 inspections

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