SKIER CRITICALLY INJURED BY NEGLIGENT SKI RUN DESIGN

HOAR v. GREAT EASTERN RESORT MANAGEMENT, INC.

Counsel for Plaintiffs:
Bruce D. Rasmussen and Jennifer Jones of the firm Michie, Hamlett, Lowry, Rasmussen, and Tweel, P.C. of Charlottesville, Virginia; and Patrick M. Regan, and Jonathan Halperin of Regan, Halperin and Long, Washington, D.C. Jim Chalat worked with these capable trial lawyers on the petitions and briefs.
Court:
Virginia: In the Circuit Court for the County of Albemarle

Facts:
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. 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.

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.

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.

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.