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Verdict for defendant in ski resort case involving injuries to a snowboarder affirmed.

Where the jury found the defendant not liable but also added a statement to the verdict that the defendant and others in the industry should look into safer practices, the verdict for defendant was affirmed. In Chase v. Ober Gatlinburg, Inc., No. E2020-00649-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2021), plaintiff filed this negligence suit against defendant ski resort after being injured in a snowboarding accident. According to plaintiff, she attempted to avoid a collision with another skier and fell, sliding into “one of the posts in a fence marking the edge of the ski slope.” While the post furthest uphill was padded, the lower post that plaintiff fell into was a square 4×4 with no padding. Plaintiff asserted that the use of square, unpadded posts constituted negligence on defendant’s part.

At trial, defendant presented testimony from an expert on ski area operations, safety, and risk management. The expert stated that “Defendant’s fencing practices were consistent with, or exceeded, the general practices in the ski resort industry,” and he presented photos of at least three other resorts that used similar fencing.

While the jury was deliberating, it asked if could make a comment in addition to the reading of the verdict, which the trial court allowed after no objections from either sides’ counsel. The jury ultimately returned a verdict finding that defendant was not at fault, but added as a comment: “We, the jury, are in one accord that Ober and the ski industry should look into using materials for posts with rounded corners or more padding.” On appeal, the defense verdict was affirmed.

Defendant argued that the appeal should be dismissed because plaintiff passed away between the filing of her motion for new trial and the notice of appeal, and while a suggestion of death was filed, counsel never filed a motion for substitution. Defendant asserted that Rule 25.01(1) of the Tennessee Rules of Civil Procedure mandated dismissal of the appeal, but the Court of Appeals found that Rule 19 actually governed the situation. Here, defendant “never moved the trial court to dismiss Plaintiff’s action for failure to comply with Rule 25.01’s 90-day deadline,” and plaintiff was therefore “not provided an opportunity to argue to the trial court that her time should have been enlarged because of excusable neglect.” Citing the comment to Rule 19 that “the omission of an order of substitution is not fatal to an appeal, but may be entered at any time,” as well as the preference in Tennessee to resolve disputes on the merits, the Court ruled that it would “allow substitution of Plaintiff and proceed to consider the merits of the appeal.”

Turning to the actual verdict, plaintiff argued that “the jury engaged in misconduct by attempting to attack and nullify its own verdict with” the additional statement it added to the verdict. Plaintiff argued that the statement “should be construed as a finding of negligence by Defendant,” but the Court rejected this argument. The Court noted that “jury nullification is a concept unique to criminal law,” that the trial court properly instructed the jury, and that allowing the statement was not “jury misconduct.”

Plaintiff’s brief also appeared to assert that the trial judge “failed to fulfill its role as thirteenth juror,” but the Court also rejected this assertion. After quoting recent case law regarding a judge’s role as thirteenth juror, the Court pointed out that the trial judge here stated that “the evidence was more than sufficient for the jury to find as they found, that defense – the defendants were not liable for the injuries to the plaintiff.” The Court of Appeals ruled that there was no evidence that the trial court “did not follow its duty” here.

Plaintiff also objected to the introduction through expert testimony of photographs of other ski resorts with similar fencing to that used by defendant. Plaintiff asserted that these photographs were only provided to her six days before the trial and thus should have been excluded. The Court of Appeals pointed out, though, that plaintiff was provided a copy of the expert’s report more than three years before trial, and that the report stated that it was “consistent with the ski industry’s generally accepted practices to not mark or pad objects that are off-trail, which the subject 4×4 post certainly was.” The report also stated that the expert was familiar with other resorts at which plaintiff had allegedly skied and that those resorts “use posts in similar applications as [defendant].” The Court further noted that plaintiff chose not to depose the expert, and that plaintiff was provided with an exhibit list three weeks before trial which included “photographs of other comparable ski areas relied upon by [expert].” Based on these facts, the Court concluded that “the photographs at issue simply buttress [expert’s] opinion, given three years before trial,” and that it was not an abuse of discretion to allow them into evidence.

The final issue raised by plaintiff was that a medical record with a notation about plaintiff’s IV drug use was inadvertently entered as an exhibit, despite the court’s pre-trial ruling that evidence of her IV drug history would not be admissible. In one set of medical records presented by defendant, there was a handwritten notation stating “IV drug user, clean since November.” The day after this exhibit was admitted, plaintiff’s counsel found the mistake, and the record was removed. The offending record was not taken into the jury room for deliberation, and plaintiff “did not formally object, move for a mistrial, or ask for a curative jury instruction.” Looking at the evidence as a whole, the Court noted that the offending exhibit was “before the jury only a brief time before the error was discovered and rectified,” that counsel never drew attention to it, and that “it was not mentioned in the jury’s presence a single time.” The Court of Appeals therefore affirmed the trial court’s ruling that the error was harmless.

Having considered and rejected all of plaintiff’s arguments, the verdict for defendant was affirmed.

This jury gave a nontraditional verdict, as it found defendant not negligent but still made a statement indicating that it did not necessarily agree with defendant’s practices. Nonetheless, the verdict here was affirmed by the trial court as thirteenth juror and by the Court of Appeals.

NOTE: This opinion was released four months after oral arguments in this case.

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