PATRICIA HOAR, Guardian of Thomas Hoar v. GREAT EASTERN RESORT CORPORATION and GREAT EASTERN RESORT MANAGEMENT INC.

Record Verdict in Ski Case

Size did not matter to a unanimous Virginia Supreme Court. It ruled that the largest jury verdict ever entered in a ski accident case, must be reinstated. The Court found that there was sufficient evidence to support the jury's verdict. Moreover, the court held that expert testimony was not required to prove the case. The effect of the ruling was to enter final judgment on the jury's verdict of $6,170,563.00, in favor of the skier and against the corporate owner of the Massanutten Ski Resort.

Patricia Stone Hoar, is the wife and is presently the guardian of Thomas Hoar. Thomas, was 35 years old when he was injured while skiing at Massanutten on January 19, 1992.

Hoar had been a professional fireman, and was well known and liked in his community.

His brain injuries are totally disabling, requiring full time institutionalization. Hoar suffers permanent and profound physical, mental and psychological deficits. He is confined to a wheelchair, and suffers uncontrollable bouts of frustration and anger. His intellectual capacity is severely limited. He communicates with simple notes, and he can manage no more than a game of BINGO.

Massanutten Mountain forms a ridge, east of the Shenandoah Mountains. For the history buff, the southern foot of Massanutten Mountain is better known as the scene of one of Stonewall Jackson's classic demonstrations of manuever warfare when he defeated two converging Union columns under Fremont and Sheilds.

Massanutten Ski Resort has a peak elevation of about 2900 ft., msl. It has 11 slopes, 8 lighted, a quad chairlift, and over 1,110 feet of vertical drop. Slopes are typically open from mid-December until mid-March, with 100% snow-making capacity. Its longest two runs are both man-made, the 3,400-foot Diamond Jim and the 4,100-foot ParaDice. Using the cut and fill construction method, both of these were completed by Massanutten in late 1991. Hoar's accident occurred on Diamond Jim, just two days after it had opened to the public.

Following the accident, Mrs. Hoar, on Thomas's behalf, hired Patrick Regan and Jonathan Halperin, of Washington D.C.'s Regan, Halperin and Long. Regan promptly engaged Bruce Rasmussen, of Charlottesville, Virginia's Michie, Hamlett, Lowry, Rasmussen & Tweel, P.C. Jennifer Jones, formerly an associate of the Rasmussen firm, assisted with the drafting of briefs, motions, and pleadings in the case.

Massanutten's defense was championed by Christopher Spencer, who is a member of Virginia's most powerful law firm: Mcguire, Woods, Battle & Boothe, L.L.P Spencer was assisted at the Virginia Supreme Court by the former attorney general of Virginia, William G. Broadus. The defense was directed by experienced insurance adjusters and advisers, from Colorado, who have had extensive experience in ski accident cases.

The case was brought and tried in Charlottesville, Virginia, county seat of Albermarle County. Charlottesville is the home the University of Virginia, Monticello, and was the starting point for the Lewis and Clark expedition. Including Monticello, Charlottesville boasts several public buildings designed by Thomas Jefferson. Charlottesville's historic courthouse, was designed by Thomas Jefferson, and positions the jury directly in front of the judge's bench, so that the jurors cannot see the presiding judge, either to be influenced from his facial expressions, or to catch him in a nap.

The Hoar jury was composed of five women and two men. The jury heard that in July 1989, Massanutten began a $4 million expansion project to nearly double its skiable terrain. Two new runs were planned, Diamond Jim, and Para Dice, along with a high capacity chair to serve the new terrain. The topography of the mountain required that the slopes be constructed using the cut and fill method of excavation. This required that soil is cut from the side of the mountain, and then is deposited on the other side of the run in order to increase the run's width. An embankment on the downhill side of the excavation resulted.

The drop-off in issue in the case was approximately 30 feet deep. The slope engineer had written a letter, early in the construction, that fencing of the "high visibility, portable type will need to be installed at various locations to direct the flow of traffic and to indicated possible hazards." In fact, Massanutten had purchased bright orange warning or barrier fencing that it had intended to install along the edge over which Hoar fell.

On January 19, 1992, Tommy Hoar fell and slid over the embankment, adjacent to the Diamond Jim ski run, and which had been formed by the cut and fill process. He was found among fallen trees and rocks at the bottom of the dropoff. Both sides argued, and presented numerous witnesses on the question of whether the dropoff at the edge of the trail should have been marked, or fenced.

At the trial, the judge allowed plaintiff's expert, Richard Penniman, of Truckee, California, to testify as to the habit and practice of ski area operators in the marking of hazards. Penniman had testified that the custom and practice of the ski areas was to mark a dangerous areas such as that presented on Diamond Jim, in order to inform skiers not to go there. However, the Court refused to allow Penniman to testify that the standard of care required such a marking.

Massanutten presented the testimony of Jim Heywood, that Massanutten met the standard of care, in order to bolster its contention that Massanutten did nothing to contribute to Hoar's injuries.

The jury heard substantial evidence that the cause of the accident was Massanutten's failure to mark the edge of Diamond Jim, and that such failure was the sole cause of Hoar's injuries. The jury heard four witnesses, who were experienced skiers and who were startled by the steepness and depth of the drop-off adjacent to the left side of Diamond Jim. The jury also heard disinterested witnesses testify that Hoar was not skiing too fast or recklessly, rather that he caught an edge and lost his balance, and then slid over the edge. The slope designer admitted that he instructed Massanutten to install warning fencing on the new slopes, and that Massanutten actually erected posts on which to hand the fencing, prior to opening the slope, but that the "high visibility" warning barrier was not installed at the time that the slope was opened to the public. The jury heard evidence that it was Massanutten's policy to warn skiers away from other hazardous areas, and the beginner's ski area, with the high visibility orange net fencing. From all of this evidence the jury reasonably concluded that Massanutten was negligent in failing to warn Hoar of the hidden drop-off, and that such failure was the cause of Hoar's injuries. The amount of the verdict precisely equaled the evidence presented of the economic damages suffered by the Hoar family, including his medical expenses and future medical treatment, and his lost income.

Following the verdict, the trial judge set aside the verdict and entered judgment in favor of the defendant, notwithstanding the verdict. The trial judge found that the jury properly could reach the issues of contributory negligence and assumption of risk in favor of the plaintiff, but that expert testimony was required to prove the standard of care to which the ski area's conduct was compared, and further that Hoar had failed to prove that his injuries were caused by the negligence of the defendant. Hoar filed a Petition for Certiorari to the Virginia Supreme Court, which was granted. The full court heard argument in September 1998.

At the outset, in its ruling, the Virginia Supreme Court determined that even though the trial court had set the verdict aside, that the Court must state the facts and reasonable inferences to be drawn therefrom in the light most favorable to the party who prevailed before the jury; if there is any credible evidence in the record that supported the verdict, the Court determined that it must reinstate that verdict and enter judgment thereon.

Stated in the light most favorable to the Guardian, the evidence shows that on January 17, 1992, two days before Thomas's accident, Massanutten opened to the public a new, more advanced ski trail, known as "Diamond Jim." This trail was built in a heavily wooded area by a "cut and fill" process, which is used when a ski run does not follow the natural "fall line" of a hill or mountain. According to an expert witness [Penniman] called by the Guardian, "[t]he fall line of a hill or a slope is the direction a ball would roll if you were to let it go and it rolled slowly [or] the direction water would flow if left to itself."

In the cut and fill process, the side of a hill or mountain is cut away to form one side of a ski run and the excavated soil is used to fill in the opposite side to make the run even and to double its width. In the area of Diamond Jim where Thomas was injured, the cut and fill process created a "drop-off," having a vertical drop of some thirty feet, on the left side of the downhill ski run. The bottom of the drop-off contained rocks and logs. The drop-off also had a double fall line, meaning that the hypothetical ball "wouldn't go straight down the middle of [the ski] run [but] would taper off [to the bottom of the drop-off]." The cut and fill process also left a gap between the left edge of the ski run and the tree line, which bordered the remainder of the run on both sides, eliminating a "visual cue to the skier that this is the edge of the trail, don't go over here."

The groomed area of the ski run had a snow depth of two feet. The snow surface was "very hard packed" and the ground was "extremely hard." A "berm" of snow, one foot higher than the groomed area, ran along the left edge of the run and the snow tapered off to a depth of only a few inches at the bottom of the drop-off.

Prior to Thomas's accident, Massanutten had ordered and received a shipment of bright orange "warning barrier fencing" for use on Diamond Jim. At the time of the accident, Massanutten had installed fence posts in the area where Thomas was injured, but had not yet attached the bright orange fencing; the fencing was installed "a couple days later."

As a result of his brain injury, Thomas is incompetent and was unable to testify. A friend, George Archer Marston (Marston), a civil engineer who accompanied Thomas to the Massanutten ski resort on the occasion in question, testified as a witness for the Guardian. According to Marston's testimony, he and Thomas, both experienced skiers, purchased lift tickets and began skiing about 9:00 a.m. on January 19, 1992. After warming up on some of the easier slopes, they took a chair lift to Diamond Jim. At the time, Diamond Jim had been groomed to its left edge, permitting skiers to ski all the way to that edge. In addition, snowmaking machinery was blowing snow across the ski run, blinding skiers using the right side of the run. Also, there were "moguls" in the center of the ski run, but none on the edges.

Thomas and Marston skied down the left side of Diamond Jim without incident. They then took the chair lift for a second trip down Diamond Jim. After skiing about halfway down the run, they stopped at a sign marked "slow," below which the slope steepen, and talked for a couple of minutes. Thomas decided to ski down the left side of the run and, not "going fast," skied to the left laterally across the slope, with Marston following.

Marston stated that shortly before Thomas reached the edge of the slope, he "caught an edge and lost his balance,[] bent at the knees and kind of sat down on the back of his skis and then slid off the edge of the slope out of . . . sight." Marston skied "right up to the edge expecting to find [Thomas] adjacent to the slope, maybe six to eight feet below the edge of the slope," but instead "found this very steep, large vertical drop." Thomas was lying between two logs at the bottom of the drop, "probably laterally a hundred feet away from [Marston and] over 30 feet vertically below [him]." Thomas was unconscious and bleeding from his nose, mouth, and one ear.

Marston also testified that on his first trip down Diamond Jim on the morning of January 19, he did not see the steep drop-off. Marston stated further that, when he went to see what had happened when Thomas slid out of sight, he had to ski "right up to the edge[,] . . . probably three to five feet from the edge," before he realized the extent of the drop-off.

Dr. James Broderson (Dr. Broderson), a dentist who had skied at the Massanutten resort many times, was called as a witness by Massanutten. He skied down Diamond Jim on the morning of January 19, 1992, just ahead of Thomas. Dr. Broderson stopped approximately twenty feet downhill from the "slow" sign to make sure the course was clear before he "head[ed] on down." He observed Thomas skiing toward the left side of the slope, then trying "to initiate a turn to the right" but either catching an edge or crossing his skis, and falling forward "[o]ut of control."

After Thomas was carried away, Dr. Broderson went to the bottom of the drop-off where Thomas had been lying to look "for some evidence of how it was that [Thomas] got hurt." There, Dr. Broderson found what appeared to be "an impact zone with a log." There was "[e]ither skin" or "maybe a little fiber something . . . that looked like he had . . . hit . . . there."

Dr. Broderson had seen "numerous tumbles like [Thomas's where] no one had been hurt, so [he] didn't think [Thomas] would be hurt from what [he] saw." Dr. Broderson explained, however, that he had "never been over to that edge and looked over." He thought that the ski "slope possibly continued out" and was approximately "level," that "you could probably ski around [the left side] like you did on the right side," where there was "a little easier way to go down the slope." He "didn't realize there was an embankment"; he "knew there was a little drop-off, but . . . had no idea it was like what it was there."

Dr. Gregory O'Shanick, a specialist in brain injuries, began treating Thomas in June of 1994. Dr. O'Shanick testified that the object which produced the injuries suffered by Thomas "would have to be something that was hard, something that was firm, that was not yielding." - Hoar v. Great Eastern, pp. 1- 3, Record No. 972334, (Slip op. 11/ 6/98)

The case has achieved notoriety and publicity due to the size of the verdict. But its significance lies not in the size of the verdict, which was proportionate to the injuries sustained by the Hoar family. Its significance lies in the holding that expert testimony is not necessary in a ski accident case such as this. Typically, ski resort defendants have a monopoly on expert testimony, and have even threatened independent experts with blacklisting if they testify for plaintiffs notwithstanding the merits of the case.

However, the issues in these cases are typically quite straightforward, and are unusually appropriate for a jury's determination. Line of sight, fair warning, visibility, these are the typical key issues for jurors in a downhill skiing accident case, whether there is a controlling Ski Act, or not. "Hired gun expert" testimony shouldn't be necessary to make or defeat such a claim, which sounds principally in common sense and the ordinary experiences of juror. In Hoar, the Virginia Supreme Court treated the question directly.

Next, Massanutten argues that "the introduction of expert testimony concerning the standard of care with respect to ski slope operators' duty to warn was appropriate and, indeed, required in this case." We disagree. . . . [e]xpert testimony is inadmissible regarding "matters of common knowledge" or subjects "such that [persons] of ordinary intelligence are capable of comprehending them, forming an intelligent opinion about them, and drawing their own conclusions therefrom." Thus, when the question presented can be resolved by determining what precautions a reasonably prudent person would have taken under like circumstances, no expert testimony is required or permitted.

Further, expert testimony is admissible only when specialized skill and knowledge are required to evaluate the merits of a claim. Issues of this type generally arise in cases involving the practice of professions requiring advanced, specialized education, such as engineering, medicine, and law, or those involving trades that focus upon scientific matters, such as electricity and blasting, which a jury cannot understand without expert assistance. (citations omitted).

Here, the issue, as framed by one of the instructions granted below, was whether Massanutten, in the exercise of ordinary care, was obligated to warn skiers of an unsafe condition that was not open and obvious. This was not a complicated or technical issue, and its resolution did not require specialized skill or knowledge. Rather, it concerned matters of common knowledge that jurors, with the application of a reasonable amount of common sense, are as competent of understanding and deciding as the expert witness. Indeed, as Kenneth Hess (Hess), Massanutten's assistant ski area manager, put it in his testimony: "Common sense tells you that you ought to tell people that there's a problem on a ski slope that's not easily identifiable."

The Court concluded by determining that the inherent risk arguments, advanced by NSAA in a last minute amicus brief, were irrelevant to the case as no theory of inherent risk had been argued before the trial court, nor any instructions submitted thereon. In fact, Virginia is a pure contributory negligence state, and has a traditional, and separate doctrine of assumption of risk. Both contributory negligence and assumption of risk were put before the jury, and ably argued by defense counsel. The jury found against defendant on both counts. Thus the inherent risk doctrine was squarely before the jury just as if the case had been tried in Colorado, Utah or any number of other states in which the question of whether a risk or hazard is inherent or not, is left to the jury.

With the proceeds, Mrs. Hoar will be able to move Thomas from the Medicaid facility to a slightly more progressive full care facility, where Thomas will receive better care and therapy. The amounts involved, given the extent of the damages, will hardly amount to "lottery-type" damages, for either the Hoar family, or counsel, as is bitterly argued in some circles. As the years go by, the attention of the legal commentators will quickly pass. However, Mrs. Hoar, and her devoted son will continue to visit Thomas in a room in a medical facility, which is as much of the world as this once proud firefighter shall ever know.