Seek v. Vail Resorts et al

Filing 56

MEMORANDUM DECISION AND ORDER granting Defendants' 41 Motion in Limine; and granting Plaintiff's 51 Motion in Limine. Signed by Judge Dale A. Kimball on 11/9/2017. (eat)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

LINDA T. SEEK,
MEMORANDUM DECISION
AND ORDER

Plaintiff,
vs.

Case No. 2:15CV187DAK

VAIL RESORTS, INC., et al.,

Judge Dale A. Kimball

Defendants,

This matter is before the court on Defendants’ Motion in Limine to Exclude Evidence of
Post-Accident Conduct [Docket No. 41] and Plaintiff’s Motion in Limine Regarding Plaintiff’s
Complaint and Plaintiff’s Amended Complaint [Docket No. 51]. On November 7, 2017, the court
held a hearing on the motions. At the hearing, Plaintiff was represented by E. Scott Savage and
Defendants were represented by Adam Strachan. The court took the motions under advisement.
The court has carefully considered the parties arguments as well as the law and facts relevant to the
motions. Now being fully advised, the court issues the following Memorandum Decision and
Order.
BACKGROUND
On March 10, 2014, a windstorm at Park City Mountain Resort blew a sign into Seek,
striking her in the head. Seek alleges that she suffered brain injury and a knee injury from the
accident. Defendants state that, at trial, they will concede liability for the sign falling on Seek. But
Defendants will contest (1) the nature and extent of Seek’s claimed brain injury and (2) the nature,

extent, and causation of Seek’s knee injury. Seek had injured her knee in a skiing accident the day
before the incident with the sign. The parties dispute the extent of the knee injury attributable to the
skiing accident and the sign incident.
1.

Defendants’ Motion in Limine to Exclude Evidence of Post-Accident Conduct
Defendants ask the court to exclude all evidence and argument regarding: (1) structural

changes that were made to the sign following the accident; (2) post-accident changes to Defendants’
policies and procedures regarding erecting such signs in high-wind conditions; and (3) how or why
the sign was disposed of after the accident.
Under Rule 407 of the Federal Rules of Evidence, “[w]]hen measures are taken that would
have made an earlier injury or harm less likely to occur, evidence of the subsequent measure is not
admissible to prove . . . negligence.” Fed. R. Evid. 407. The structural changes and the policy and
procedures change were enacted to make an accident less likely to occur and cannot be admitted to
prove negligence. Moreover, in this case, the changes are irrelevant because Defendants admit that
they had a duty to ensure that Seek was not hit by a sign and that they breached their duty.
Therefore, evidence of Defendants’ changes are inadmissible.
The parties further dispute whether evidence regarding when and how Defendants disposed
of the sign is admissible. Defendants claim that the evidence is irrelevant because they concede
that, for purposes of Seek’s brain injury, the force of the sign was sufficient to cause the injury she
sustained and, for purposes of the knee injury, the force of the sign was not insufficient to cause the
knee injury. Although she has not filed any motion regarding spoliation, Seek contends that
evidence as to the sign’s disposal is relevant and she is entitled to a spoliation instruction requiring
the jury to make an adverse inference concerning the force with which the sign struck Seek.

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Seek has not attempted to produce evidence in support of her request for a spoliation
instruction. Under Tenth Circuit precedent, Plaintiff must present evidence that Defendants
disposed of the sign in bad faith. Turner v. Pub. Serv. Co., 563 F.3d 1136, 1149 (10th Cir. 2009)
(affirming district court’s refusal to give adverse spoliation jury instruction without evidence of bad
faith or intentional conduct); McQueen v. Aramark Corp., 2016 U.S. Dist. LEXIS 164678 (D. Utah
2016) (denying request for adverse instruction where defendant acted with gross negligence rather
than bad faith). While Defendants may have been grossly negligent in disposing of the sign after
someone was injured by it, there is no evidence that Defendant’s disposed of the sign in bad faith.
There were pictures of the sign from the time of the accident and Defendants changed signs as a
result in the change of ownership at the resort. Seek accuses Defendants of concealing the sign
change, but Seek never propounded interrogatories about sign changes and a layperson could easily
notice the change in the signs. To claim that Defendants somehow “concealed” what was so
blatantly obvious is a meritless attempt to insinuate bad faith where there is none.
Moreover, Plaintiff must show that she is prejudiced by the loss of the sign. Burlington
Northern & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). Seek contends that
the absence of the sign precludes her from proving the force of the impact. But Defendants admit
that the sign could have hit her with sufficient force to cause her injuries. Defendants only dispute
is whether the knee injury was caused by the sign incident or Seek’s skiing accident the day before.
The existence of the sign will not be relevant to that debate. Rather, the parties will rely on medical
evidence and eyewitness testimony.
The court concludes that a jury instruction that Defendants destroyed evidence in bad faith is
not warranted and would be highly prejudicial. Such an inference would permeate the trial and
prejudice the jury against Defendants on an issue of little probative importance. Accordingly, the
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court grants Defendants’ motion in limine.
2.

Plaintiff’s Motion in Limine Re: Plaintiff’s Complaint and Amended Complaint
Defendants’ have marked Plaintiff’s Complaint as Exhibit A and Plaintiff’s Amended

Complaint as Exhibit B. Defendants intend to offer the two complaints to show that Plaintiff did
not initially complain of her knee injury. Seek argues that her counsel did not originally believe
there was enough evidence to include a claim for the knee injury due to a mistaken understanding of
the facts and that he added the claim when it became apparent during discovery that there was
sufficient evidence to support the claim. Seek contends that counsel’s mistake in not including the
knee injury in the original Complaint is embarrassing, but not relevant to the issues of the case.
Rather than relating to a fact of consequence, the Amended Complaint issue relates more to
litigation procedures. There is nothing contradictory in the two complaints. The information
regarding Seek falling awkwardly and tearing her ACL were merely added to the original
Complaint. Defendants argue that they should be able to tell their story with respect to the inclusion
of the knee injury in the Amended Complaint, but the real issue is the causation of the knee injury
and Defendants can make all of their arguments regarding the causation of the knee injury without
reference to the somewhat belated addition of the claim in the Amended Complaint. The court and
jury need not wander off into correct litigation procedures and attorney testimony as part of
Defendants’ defense. To suggest that the claim was added only to enlarge Seek’s special damages
claim ignores that there was obviously a basis for including the claim in the Amended Complaint or
Defendants would have moved to dismiss the Amended Complaint or for summary judgment on the
claim. Moreover, given the evidence’s limited relevance, delving into whether there was a basis for
amending the Complaint or speculation as to why Seek amended the Complaint is more prejudicial
than probative. Accordingly, the court grants Seek’s motion in limine.
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CONCLUSION
Based on the above reasoning, Defendants’ Motion in Limine to Exclude Evidence of PostAccident Conduct [Docket No. 41] is GRANTED and Plaintiff’s Motion in Limine Regarding
Plaintiff’s Complaint and Plaintiff’s Amended Complaint [Docket No. 51] is GRANTED.
DATED this 9th day of November, 2017.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

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