Wade Clark Mulcahy LLP

In <a href="https://www.wcmlaw.com/wp-content/uploads/2020/02/Zhou-v-Tuxedo-Ridge-LLC.pdf">Zhou v Tuxedo Ridge LLC</a><em> </em>plaintiff , then a nine-year-old novice skier, was injured while skiing at the Tuxedo Ridge Ski Center. Prior to her injury, she took the chairlift to the top of the bunny slope and began her first run of the day. At the bottom of the bunny slope, the corral for the ski lift was separated from the rest of the slope by orange-and-black striped bamboo poles, an orange “slow skiing area” sign, and green plastic figures displaying the word “slow” that were used as warning devices. The injured plaintiff skied past the devices into what she thought was an open area where she could stop. However, she crashed into a white PVC pole which was being used as a stanchion to hold up an orange rope that designated where to wait in line for the ski lift.

Following a jury trial, the jury returned a verdict finding Tuxedo Ridge 100% at fault in the happening of the accident. After a trial on the issue of damages, the jury returned a verdict awarding the plaintiffs the sum of $3,000,000 for past pain and suffering, $15,000,000 for future pain and suffering, and $1,000,000 for future medical expenses.

The defendants moved to set aside the jury verdict on the issue of liability and to set aside the jury verdict on the issue of damages as excessive.

The Appellate Division, Second Department, ordered a new trial on liability and deemed the damages awarded to plaintiff excessive.

The Appellate Division found the lower court had erred by denying defendant’s request to charge assumption of the risk. While there was no evidence elicited at trial that the injured plaintiff expressly assumed the risk of injury, the evidence did support an instruction on <em>implied</em> assumption of risk. The evidence submitted also included the injured plaintiff's deposition testimony that she believed it was safer to continue beyond the devices than to be struck by a passing skier if she fell. The devices warned skiers to slow down but did not warn them to stop.

As to damages, the Appellate Division held ‘Awards of damages for past and future medical expenses must be supported by competent evidence which establishes the need for, and the cost of, medical care” and “jury awards for past pain and suffering will not be disturbed unless they deviate materially from what would be reasonable compensation.”

Here, the jury's awards for past and future pain and suffering deviated materially from what would be reasonable compensation. The injured plaintiff was nine years old when she fractured her right femur on the defendants' ski slope. She underwent surgery to repair the injury and may require future surgery to address the leg length discrepancy and mild knee deformity. Based on the totality of her injuries, age, effect, and permanency, the Court concluded that the awards as to past and future pain and suffering was excessive.

Thanks to Paul Vitale for his contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.