Taylor v. Stratton Corporation, The et al

Filing 119

MEMORANDUM AND ORDER denying 109 Motion for New Trial. Signed by Judge William K. Sessions III on 3/19/2012. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
SARAH TAYLOR,
Plaintiff,
v.
THE STRATTON CORPORATION
d/b/a, STRATTON MOUNTAIN
RESORT, and INTRAWEST, ULC,
Defendants.

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Case No. 2:09-cv-297

Memorandum & Order:
Plaintiff’s Motion for a New Trial
Plaintiff Sarah Taylor filed a Motion for New Trial on
February 8, 2012.

ECF No. 109.

Taylor’s jury trial, conducted

January 9-13, 2012, concerned her diversity action for damages
stemming from injuries she suffered while skiing at Stratton
Mountain Resort.

The jury returned a verdict finding her

negligence was greater than that of Defendant Stratton
Corporation, barring recovery under Vermont’s comparative
negligence statute, Vt. Stat. Ann. tit. 12, § 1036.1
Verdict Form, ECF No. 97.

See Special

Arguing the weight of the evidence

adduced at trial did not support the jury’s determination,
Taylor requests the Court set aside that verdict and hold a

1

Plaintiff consolidated her claim against Intrawest,
ULC with her claim against Stratton Corporation, requiring the
jury only to render a verdict as to Stratton Corporation’s
negligence. See Minute Entry for Proceedings, Jan. 13, 2012,
ECF No. 96.
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full, new trial pursuant to Federal Rule of Civil Procedure
59(a)(1)(A).

Alternatively, she asks the Court to vacate the

verdict, find that Defendant’s negligence was greater than hers
in causing her injuries, and then hold a new trial limited to
the issue of damages.

For the reasons stated below, the Court

denies Plaintiff’s Motion for New Trial.
Rule 59(a)(1)(A) broadly allows the Court to grant a new
trial “for any reason for which a new trial has heretofore been
granted in an action at law in federal court.”

An Erie question

with an unclear answer is posed by the standard of review of
Rule 59(a) motions for new trials in diversity cases.

Mono v.

Peter Pan Bus Lines, Inc., 13 F. Supp. 2d 471, 475 n.2 (S.D.N.Y.
1998).2

On Rule 59(a) motions, Vermont state courts are limited

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On the one hand, the general rule is that federal law
should govern. Correia v. Fitzgerald, 354 F.3d 47, 54 (1st Cir.
2003) (“We consistently have looked to federal law for the
standard for deciding new trial motions in diversity cases.”);
11 Charles A. Wright, Arthur R. Miller, Mary K. Kane & Richard
L. Marcus, Federal Practice & Procedure § 2802 (2d ed.) (noting
also that “it seems beyond belief that parties would resort to
forum shopping in order to have a more favorable rule on
granting new trials.”); see also Gasperini v. Ctr. for the
Humanities, Inc., 518 U.S. 415, 428 n.7 (1996) (affirming the
general principle that on point Federal Rules of Civil Procedure
govern, regardless of state law, if in accord with the Rules
Enabling Act and Constitution). On the other hand, in
Gasperini, the Supreme Court directed lower courts to rely on
New York’s standard for granting a new trial due to excessive
damages awards, as the state law approach differed from federal
law and contained a substantive as well as a procedural command.
518 U.S. at 426, 430-31. The Court has relied on the Vermont
standard, in conjunction with the federal rule, in at least one
case similar to the present one. See Stephens v. Bromley
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to viewing the evidence “in the light most favorable to the
jury’s verdict” and may overturn the verdict only if it is
“unsupported by the evidence.”
711 (Vt. 1997).

Shaw v. Barnes, 693 A.2d 710,

Meanwhile, courts applying the federal standard

have the broader power to re-weigh the evidence and may overturn
verdicts that are supported by substantial evidence.
Ambase Corp., 337 F.3d 237, 244-45 (2d Cir. 2003).

Manley v.
Even under

the federal standard, however, the Court must find the jury
verdict was either “‘seriously erroneous’” or a “‘miscarriage of
justice,’ i.e., it must view the jury's verdict as ‘against the
weight of the evidence.’”

Id. at 245 (quoting Mgmt. Corp. v.

Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1988)) (internal
quotations omitted).

As applied to the present case, the choice

of law makes no functional difference.

The Court would find a

new trial unwarranted under either the Vermont or the federal
standard, making an Erie debate academic.

See Mono, 13 F. Supp.

2d at 475 n.2.
Plaintiff provides several reasons why the Court should
grant a new trial.

Her first contention is that the evidence

did not support the jury’s conclusion that Defendant was less
negligent than she.

On its review of the facts, the Court

concludes the jury acted reasonably in finding Stratton

Mountain Ski Resort, Inc., No. 1:07-cv-232, 2009 WL 2524751, at
*3 (D. Vt. Aug. 18, 2009).
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negligent in regard to the condition of the trail and the
adequacy of its warning to skiers.

The jury also had reason to

find Plaintiff negligent by skiing to the right of the bamboo
pole.

Photos extensively analyzed by witnesses and counsel

depicted much less room for a skier to maneuver between the pole
and the brush at the right edge of the trail than on the open
trail to the left of the pole.

The jury reasonably could have

credited evidence introduced that Taylor skied off the groomed
portion of the trail in going to the right.

More generally, the

jury had to resolve conflicting evidence regarding Plaintiff’s
speed and the location of an unfilled portion of a waterbar that
cut across the trail.

It was entitled to weigh that evidence

and resolve it in favor of Plaintiff’s negligence.
Plaintiff contends that while the jury could have found her
somewhat negligent, it should not have found her more negligent
than Defendant.

She suggests, as an alternative to a new trial

on fault, that the Court enter a finding that she was 25 percent
negligent and then move to a trial on damages alone.

The Court

sees no reason to intrude in this case on the prerogative of the
jury in apportioning fault.

The jury’s 51-49 percent division

of negligence, according Plaintiff slightly more blame,
adequately reflects the fact that the parties’ cases each had
significant gaps and together presented close questions of
comparative negligence.
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Nor does the Court agree with Plaintiff that the jury was
inadequately instructed on how to apportion relative fault.

In

a draft charge, the Court used its standard instruction that in
the case the jury finds both parties negligent it should assign
each a percentage of the total fault.

During the charge

conference, Plaintiff asked the Court to add further
clarification on the effect of Vermont’s comparative negligence
law.

The additional language Plaintiff suggested, and the Court

adopted, explained that if the jury found that Plaintiff was
more than 50 percent negligent “then Plaintiff cannot recover
anything,” but that if it found Plaintiff’s negligence was 50
percent or less, “Plaintiff is entitled to recover from
Defendant.”

Jury Charge 14, ECF No. 103.

The wording was taken

from the charge in a previous ski injury case.

Charge to the

Jury at 24, Salvatore v. Mount Mansfield Co., No. 1:96-cv-47 (D.
Vt. Dec. 4 1997).

Plaintiff did not propose any other changes

to the instruction, and did not object to the formulation in the
final jury charge.

As it stands, the Court finds the guidance

given to the jury sufficient.
Plaintiff further objects to the conduct of voir dire.

At

voir dire, the Court denied Plaintiff’s request to exclude some
panel members who indicated that they may tend to favor the
position of a defendant in a ski injury case, and it sees no
reason to reverse that decision.

Each juror selected indicated
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that he or she could render a fair and impartial verdict.
Moreover, the offending statements were made in response to
Plaintiff’s counsel’s unusual approach to voir dire questioning.
Plaintiff’s counsel made factual representations that tended to
diminish Plaintiff’s case in relation to Defendant’s.
Plaintiff’s counsel then asked the panel members whether, under
those hypothetical facts, they would tend to find liability on
the part of the Defendant.

Unsurprisingly, a number answered

that they probably would not, while several others answered that
they required further information before making a decision.
Plaintiff cites no authority for her position that such
responses require vacating the verdict, and the Court sees no
reason to doubt the jurors’ express assurances under oath to
evaluate the actual evidence in the case fairly and impartially.
Next Plaintiff contends the Court erred in denying her
motion for unlimited time, or at least one hour, to question the
venire panel.
No. 65.

See Pl.’s Mot. for Extended Att’y Voir Dire, ECF

The standard practice in this jurisdiction is for the

Court to conduct voir dire and then permit each side ten minutes
to ask questions.

In response to Plaintiff’s motion, the Court

expanded the attorneys’ time for questioning to thirty minutes.
Plaintiff cites no authority suggesting that the thirty minute
time limit affected her ability to select a fair and impartial
jury.
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Finally, Plaintiff renews her objections to certain
evidentiary rulings made by the Court prior to and during trial.
Plaintiff objects to three decisions in particular: admission of
a sample Stratton Mountain Resort lift ticket, admission of
impeachment evidence of Plaintiff’s expert witness Stanley Gale,
and exclusion of certain impeachment evidence concerning
Defendant’s expert witness Mark Petrozzi.
First, Plaintiff objects to the admission into evidence of
warning language printed on the back of a 2011-12 Stratton lift
ticket.

To the extent Plaintiff now argues the ticket was not

relevant to the question of negligence, the Court disagrees.
The warning language, which Defendant stated was the same as in
2009, was relevant for the purpose of showing the precautions
Defendant took to alert skiers, like Plaintiff, to the hazards
of skiing and the need to ski carefully.
Plaintiff contends that the ticket nonetheless contained a
statement of skiers’ assumption of risk that diverged from the
standard under Vermont law.

See Dalury v. S-K-I, Ltd., 670 A.2d

795, 799 (Vt. 1995) (holding unenforceable similar warning
language contained in a release from liability signed by the
plaintiff skier prior to his accident); Umali v. Mount Snow
Ltd., 247 F. Supp. 2d 567, 575 (D. Vt. 2003) (applying Dalury to
reach same result concerning a release signed before a mountain
bike race).

But Defendant never suggested the ticket was a
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release enforceable against Plaintiff.

Nor does Plaintiff

object to the instruction provided to the jury on the Vermont
standard for assumption of risk in sports injury cases.
Jury Charge 7-9.
question.

See

Indeed, the jury found in her favor on the

Special Verdict Form 1.

Thus, it is unclear what, if

any, unfair prejudice Plaintiff suffered from the ticket’s
admission.
Plaintiff also raises the Court’s admission of documentary
evidence for the purpose of impeaching her expert, Stanley Gale.
The evidence consisted of Gale’s retainer agreement and an
apology letter he wrote to Loveland ski area when, as a ski
patroller, he violated its out-of-bounds policy.

Plaintiff

contends these documents were hearsay and prejudicial.

However,

neither document was admitted as case-in-chief evidence to prove
the truth of the matter asserted.

Defendant used them to

undermine Gale’s credibility on cross examination, and the Court
ordered that Gale’s retainer agreement not be provided to the
jury.

See Defs.’ Ex. List 3, ECF No. 100.
Plaintiff, lastly, renews her objection to the Court’s

limit on evidence to impeach Defendant’s expert, Mark Petrozzi,
for his ties to the ski insurance industry.

See Order: Pl.’s

Mot. in Limine to Permit Evidence of Liability Insurance 2, ECF
No. 92.

Since Petrozzi was not working for an insurance company

in this case, such evidence would have had little value in
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demonstrating bias while being highly prejudicial to the
Defendant and misleading to the jury.

The Court permitted

extensive cross examination concerning Petrozzi’s history of
work for Defendant and for the ski industry, including “in the
area of risk management,” excluding only the mention of his work
with “insurance” companies.

Order 2.

Plaintiff thus had full

opportunity to impeach this witness by showing his bias in favor
of Defendant.

In addition, the Court admitted Petrozzi’s

unredacted CV, along with Gale’s, allowing the jury to evaluate
both experts’ relevant body of experience in context.

It is

unclear to the Court how it could have gone further without
inviting irrelevant and prejudicial speculation by the jury as
to Defendant’s insurance coverage.
In light of the foregoing, the Court denies Plaintiff’s
Motion for New Trial.

Dated at Burlington, in the District of Vermont, this 19th
day of March, 2012.
/s/William K. Sessions III
William K. Sessions III
U.S. District Court Judge

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