Costs, when you win a lawsuit you normally can recover your costs

Gregorie v. Alpine Meadows Ski Corporation, 2011 U.S. Dist. LEXIS 20275

Costs do not include attorney fees

This case is a lawsuit by the parents of a 24-year-old girl who died snowboarding. The father, in response to her death founded the California Ski & Snowboard Association (CSSO as set forth by the court and California Ski and Snowboard Safety Organization based on their website). An association allegedly started to make ski areas safer. However, the young girl died out of bounds.

The girl and her friend were hiking out of bounds. On the way, they passed two signs warning people of the dangers. While on the High Beaver Tavers she slipped, slid out of bounds and died.

The girl signed a release before skiing at Alpine Meadows in California. On top of that she was described as an experienced snowboarder.

California Ski & Snowboard Association (CSSO) is an organization that I have written about as a wolf in sheep’s clothing (or maybe it should be skin or wool). Originally, the organization came across as wanting to work with ski areas to make them safer. See Grieving Father starts organization to make skiing safer and California Ski and Snowboard Safety Organization turns out to be a Wolf in Sheep’s Clothing.

Recently, the organization has changed its mission to:

Mission

To promote and support safety improvements in California skiing, snowboarding and recreational snow sports and serve as an independent, factual public resource regarding the safety of California ski resorts.

Vision

A recreational skiing and snowboarding environment in which federal and state governments, health and safety organizations and the ski resort industry are proactively and collaboratively working to establish and maintain the safest possible snow sport environment and experience.

Summary of the case

The plaintiffs sued for Premise’s liability, misrepresentation of the risk, negligence, breach of the season pass agreement, two claims of rescission and declaratory relief.

Rescission is a contract claim that attempts to void the contract and place the parties back in the position they were in prior to the signing of the contract. To win a claim for rescission the party wanting out of the agreement must claim material misstatement of the issues creating the contract, or something akin to fraud or misrepresentation.

The defendants filed a motion for summary judgment based on the release (express assumption of the risk) and primary assumption of the risk. The trial court granted the defendants motion and dismissed the claims of the plaintiff.

As is normal, the defendant then filed a bill of costs. This is a motion to recover their costs they expended in defending the lawsuit. Costs are normally granted to the winning party in a suit.

Costs are the actual money spent for things necessary to defend the suit. In federal court, costs are set out by statute.

Federal Rule of Civil Procedure 54(d)(1)

(1) Fees of the clerk and marshal;

(2)  [*5] Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

A better way to look at costs is; those things the party wrote a check to, necessary to litigate.

Costs do not include attorney fees. To recover attorney fees, there must be a violation of a state statute that awarded costs, a contract that awards costs or liquidated damages or an action (claim) by one side or the other that is frivolous, groundless and wholly without any legal merit. “Rule 54(d)(1) provides that costs, “other than attorney’s fees shall be allowed as of course to the prevailing party unless the court otherwise directs.”

Costs are up to the discretion of the court. Normally, the court will allow most costs if the costs were specifically part of the trial or litigation. I look at it this way. If the judge saw the results of what you paid for, then that might be costs.

On the other hand, if money was spent on something that only might or did lead to what the judge might see, then probably not allowed as costs.). “If the depositions are for investigatory or for discovery purposes only, rather than for presentation of the case, courts have found that they are not taxable.

The decision looks at several of the items the trial court allowed as costs. The original order allowing costs was $72,515.36. The court found that only $51,042.76 of the amount should have been allowed.

So Now What?

There are several interesting issues that are just good to know if you run a ski area or any recreation business. The deposition of the father took three days. Part of that deposition concerned the organization he started, California Ski & Snowboard Association (CSSO); however, no matter why, think about losing three days out of the office for deposition and probably another six days preparing for the deposition. Nine days total for something that if you work hard in the beginning, might have been prevented.

The expert witness of the plaintiff testified for two days. That would be an expensive two days. You and/or your insurance company would be paying probably two lawyers to attend the deposition and paying your expert witness to be questioned. Even if you are not having your expert deposed, just an employee, you are paying the employee to be there. Simply put, depositions on one side or the other can easily cost $1000 per hour.

Winning or losing a lawsuit, is an expensive proposition. Usually, the costs awarded by the court are less than 50% of the actual costs spent. Add to that the time incurred to defend a lawsuit, and it is ridiculous.

What do you think? Leave a comment.

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