SNOW GROOMER PLOWS INTO NIGHT-TIME SKIER

JESSICA GRIGG, by MILTON GRIGG conservator v. WINTERGREEN PARTNERS, INC., BRETT HENYON and JEFFREY EIMUTUS

Counsel for Plaintiffs:
M. Bryan Slaughter (ATLA member)
Michie Hamlet Lawry Rasmussen and Tweel, P.C.
James H. Chalat (ATLA Sustaining member)
Chalat Hatten Law Offices, P.C., Denver, CO

Court:Case # CL03-9452
Virginia: In the Circuit Court for the County of Albemarle
Date of Verdict July 16, 2004, Appeal denied July 7, 2005

FACTS
On January 20, 2003, at 7:00 p.m., plaintiff Jessica Grigg, age 17, was skiing down Eagle's Swoop, an open intermediate slope at Wintergreen ski resort in Nelson County, Virginia.

The ski area operator also operated two tubing parks at the resort, one of which was situated adjacent to Eagle's Swoop. Both tubing parks required regular grooming when guests were tubing, and the ski area operator employed a specialized snow groomer for their maintenance. The groomer was a model 270 Pisten Bully, a large diesel powered track vehicle, equipped with a specialized nine foot blade in front and a grooming tiller in the rear.

On the night of the accident, the groomer was being moved. At the signal of a ski patroller riding an escorting snow mobile, the groomer was driven out of the lower tubing park. It emerged from the tree line on skier's left of Eagle's Swoop, pivoted uphill, and then began driving about 300' straight uphill close to the tree line, and against the direction of skier traffic, while the ski run was open to the skiing public. The only protection or warning given to skiers descending Eagle's Swoop was the snow mobile, driven by a ski patroller who was blowing a whistle and which was about 60' ahead of the groomer. The escorting snowmobile had a working headlight and flag. The snow groomer had headlights, and a working strobe light on top.

Grigg came over the crest of the pitch up which the snow groomer was ascending. She avoided the escorting snowmobile, lost control, fell and slid at high speed about 90' into the blade of the groomer. She sustained a comminuted fractures to her left humerus, her left elbow, and a non-displaced pelvic fracture. She also sustained a severe right frontal skull fracture. She went into respiratory arrest at the scene, was resuscitated by the patroller who had been riding the snow mobile. She was evacuated by helicopter to the trauma center. Her orthopedic injuries resolved, but her skull fracture resulted in a permanent brain injury with extensive loss of function in Grigg's right frontal cortex.

Plaintiff contended that the policy of bringing the groomer out into the slope, through a break in the tree line, pivoting uphill, and then driving the groomer uphill against skier traffic was unreasonably dangerous. Further, that there were reasonably simple and safe alternatives, including: closing temporarily the slope or a portion of the slope, placing warning signs at the top of the ski slope, or having personnel at the top of the run verbally warn skiers of the upcoming groomer. Moreover, there was a blind area where the groomer was moving; from uphill, as she descended, Grigg's visibility of the run on which the groomer was moving was either obscured or partially obscured. The ski area operator specifically approved the policy of moving groomers open slopes with an escorting snow mobile but prohibiting actual grooming on open ski slopes.

From her frontal lobe brain injury, Grigg suffers severe personality disorders, including inappropriate social behavior, difficulty in controlling aggression and modulating mood, and in performing complex or simultaneous tasks. She requires daily anti-depressant and psychiatric medications, and will require counseling, therapy, job and life coaching for the rest of her life.

Grigg received special accommodations at her public high school and received her diploma, Grigg had previously stated ambitions to go into nursing. Post injury, however, the vocational rehabilitation expert opined that Ms. Grigg sustained a permanent earnings impairment, that she would be less employable, and would be less likely to keep employment as a result of her brain injury. Her past medical billings totaled $271,617.23, and the additional projected cost of her life care plan was $827,172.96.

The jury awarded $8.3 million. This is the largest verdict ever obtained in a ski case in the United States. The Supreme Court of Virginia dismissed the Defendant's Petition of Appeal on July 7, 2005.

Plaintiffs' Principal expert witnesses:
Ski Safety: Jim Isham, Taos, NM
Vocational Rehabilitation: Peter Melberg, Charlottesville, VA
Life Care Plan: Sharon Reavis, R.N., Charlottesville, VA
PETScan: Monte S. Buchsbaum, M.D., New York, NY
Adolescent Neuropsychology: Peter Patrick, Ph.D., Charlottesville, VA
Neuropsychiatry: Gregory J. O'Shanick, M.D., Midlothian, VA Defendant's:

Defendant's expert witnesses:
Ski Area Safety: Robin Smith, Englewood, CO
Neuropsychology: Mary Elizabeth Quig, Ph.D., Fairfax, VA