Oldja v. Warm Beach Christian Camps And Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Oldja v. Warm Beach Christian Camps And Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

Ted Oldja, Plaintiff, v. Warm Beach Christian Camps And Conference Center, Defendant.

CASE NO. C09-0122-JCC


793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966

June 24, 2011, Decided

June 24, 2011, Filed


For Warm Beach Christian Camps and Conference Center, Defendant: David R Goodnight, Vanessa Soriano Power, STOEL RIVES (WA), SEATTLE, WA; Francis S Floyd, Nicholas L Jenkins, FLOYD PFLUEGER & RINGER PS, SEATTLE, WA.


OPINION BY: John C. Coughenour


[*1209] ORDER

This matter comes before the Court on Defendant’s motion for summary judgment (Dkt. No. 49), Plaintiff’s response (Dkt. No. 53), and Defendant’s reply. (Dkt. No. 59.) Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.


In the summer of 2007, Ted Oldja attended a camp at Warm Beach Christian Camp (“Warm Beach”) in Stanwood, Washington. Mr. and Mrs. Oldja decided to ride on the zip line operated by Warm Beach. The zip line carried riders in a harness suspended from a cable by two ropes: a white rope, which acts as the primary connection between the harness and the cable, and bears the load of the rider’s weight; and [**2] a black rope, which acts as a secondary connection between the harness and the cable, and can be used as a safety line to slow the rider down.

Before a user rides the zip line, it is the job of the launch facilitator to follow a safety procedure. First, the facilitator tells the rider that they can hold on to either the white and black ropes during the ride, or just the white rope. The facilitator instructs riders not to hold only the black secondary line, because it will slow them down or stop them completely. The facilitator then double-checks the harness configuration, pulley attachments, safety helmet, and carabiners. The launch facilitator calls “zip clear” to the landing facilitator to communicate that the rider is ready, and the landing facilitator responds “zip clear” to communicate that the path is clear for the rider.

After watching his wife on the ride, it was Mr. Oldja’s turn. The launch facilitator, Paul Matthewson, testified that he followed the proper safety procedures. (Dkt. No. 49 Ex. 2 at 51- 53.) Matthewson testified that he did not see Oldja wrap his fingers in the white primary rope, and that Oldja’s fingers were not wrapped in the rope when Matthewson cleared him [**3] to go. (Id. at 60.) Some time after Matthewson called “zip clear,” Mr. Oldja, a mechanical engineer, wrapped his fingers in the white primary rope, and stepped off the platform. The load-bearing rope tightened [*1210] around his hand and crushed his fingers. Mr. Oldja was rushed to a hospital and has had several surgeries on his hand. Plaintiff filed suit against Warm Beach for negligence, product liability, and negligence per se under a variety of theories. Defendant now moves for summary judgment dismissal of all three of these claims. Plaintiff does not oppose summary judgment on the product liability claim.


[HN1] Federal Rule of Civil Procedure 56(c) mandates that a motion for summary judgment be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). There exists a genuine issue as to a particular fact–and hence that fact “can be resolved only by a finder of fact” at trial–when “[it] may reasonably be resolved in favor of either party”; conversely, there exists no genuine issue when reasonable [**4] minds could not differ as to the import of the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Whether a particular fact is material, in turn, is determined by the substantive law of the case: “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Summary judgment, then, demands an inquiry into “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”; if applying the relevant law to those facts about which no two reasonable factfinders could disagree dictates that the moving party must prevail, then a motion for summary judgment must be granted. Id. at 250-52.


A. Duty of Ordinary Care

Plaintiff argues that it is well established that every business has a duty to use ordinary care in keeping its premises reasonably safe for use by business invitees. (Dkt. No. 53 at 10.) Defendant argues that Section 388 of the Second Restatement of Torts should govern the analysis. [**5] The Court addresses Section 388 below, but Section 388 governs only the duty to disclose and does not govern the duty of ordinary care. Defendant has not shown an absence of a genuine issue of material fact with respect to its alleged breach of the duty of ordinary care. Accordingly, summary judgment dismissal of this claim is denied.

B. Duty to Disclose

[HN2] With reference to a duty to disclose, The Supreme Court of Washington has adopted Section 388 of the Second Restatement of Torts, which states that the supplier is liable if he:

a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926, 928 (Wash. 1967).

Plaintiff argues that he is choosing not to pursue his claims under Section 388. Rather, Plaintiff argues that the Court [*1211] should consider Section 343A, which creates a duty to protect invitees from known or obvious dangers when the [**6] landowner should anticipate the harm despite such knowledge and obviousness.

Plaintiff is misguided. [HN3] He may choose the claims he brings, but he cannot choose the standard the Court will apply to those claims. Section 343 governs liability for an activity or condition on the land. Section 388 governs liability for use of a chattel. “Chattel” means movable or transferable property. Black’s Law Dictionary (9th ed. 2009). Defendant argues that the zip line is movable property, and Plaintiff does not challenge this characterization. The Court agrees. Plaintiff’s injury was caused by equipment on the land, not the land itself. Accordingly, Section 388 governs Plaintiff’s claims. Lunt v. Mt. Spokane Skiing Corp., 62 Wn. App. 353, 814 P.2d 1189, 1192 (Wash. Ct. App. 1991) (where injury arises from equipment not land, Section 388 not Section 343 governs).

[HN4] Each of the three criteria in Section 388 must be satisfied. The Court will begin with consideration of the second criterion. To prevail on this element at the summary judgment phase, Plaintiff must show some evidence that Defendant had no reason to believe that riders of the zip line would realize the dangerous condition. This is a dense piece of legal language, [**7] so an illustration is helpful.

In Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926 (Wash. 1967), a man disabled a safety feature on a truck that was designed to prevent the motor from starting if the car was in gear. He sold the truck to a mechanic and did not disclose that the safety feature had been disabled. When the purchaser started the truck, it lurched forward, striking and injuring the plaintiff. The Supreme Court of Washington noted that the man who had sold the car had no reason to believe that any future operator of the car would know that the safety feature had been disabled. Id. at 928. Because the seller had no reason to believe the defect would be discovered, he had a duty to warn of that defect. The defect was latent and no amount of common sense or automotive knowledge could inform a driver about that particular hazard. Dismissal of the seller was reversed.

In contrast, Mele v. Turner, 106 Wn.2d 73, 720 P.2d 787 (Wash. 1986) concerns a case where a young man borrowed a lawn mower from his neighbors, inserted his hand into the mower housing to clean out some wet grass, and injured four fingers. The young man admitted in an affidavit: “I obviously realized that one should not put [**8] his hand under the machine where the blade runs . . . .” Id. at 790. The Court held that because the dangerous condition was obvious and known, defendants had no legal duty to warn. Id. There was nothing latent about the defect, and common sense would inform the user of the hazard.

The present case is much closer to Mele than Fleming. Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only Defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:

Q. Did you know that if you wrapped the rope around your fingers and then you put weight on the rope, that that would tighten and cinch around your fingers?

A. The thought did not cross my mind.

Q. Okay. You didn’t think about that correct?

A. Correct.

Q. But if you had thought about it, you would have been able to figure that out, correct?

[*1212] A. If someone asked me?

Q. Yes.

A. Yes.

(Dkt. No. 50 at Ex. A 196:14-197:1.) Given Plaintiff’s admission that he would have realized the danger if he had thought about it, Plaintiff cannot credibly argue [**9] that Defendant had no reason to believe that he would realize the danger.

The only evidence Plaintiff offers on this point is the testimony of Dr. Richard Gill, a Human Factors Engineering consultant. Dr. Gill was disclosed as a rebuttal expert, and testified that the scope of his work was to provide rebuttal testimony to the three defense experts. (Dkt. No. 60 at Ex. 1, Ex 2 16:8-9.) Dr. Gill’s expert report provides a series of conclusions about the behavior of zip line riders that does not rebut any of the testimony of Defendant’s experts. Rather, this type of testimony should have been disclosed in the initial expert discovery responses and is therefore untimely. Accordingly, Dr. Gill’s testimony regarding the behavioral tendencies of zip line or challenge course participants is STRICKEN. Plaintiff has failed to demonstrate a genuine issue of material fact with respect to Defendant’s liability under Section 388.

C. Liability for violation of state regulations

Plaintiff’s next argument is that Defendant was negligent pursuant to RCW 5.40.050 for violation of a state statute. [HN5] WAC 296-403A-190 states that amusement rides must be inspected by certified inspectors. RCW 67.42.010 and [**10] WAC 296-403A-100(2) provide the definition of amusement rides, but do not mention zip lines. Plaintiff argues that these definitions do include zip lines, and relies on a series of communications with the State of Washington Department of Labor and Industries (“L&I”) in 2009 and 2010 in support of this contention. (Dkt. No. 50 at Ex. 11.)

The Court interprets these communications very differently from Plaintiff. It is clear from these emails that the decision to include zip lines in the definition of “amusement ride” under WAC 296-403A-100(2) was not made until late 2009 or early 2010, more than two years after Plaintiff injured his hand on Defendant’s zip line. (Dkt. No. 50 at Ex. 11.) Plaintiff does not address this chronology in his briefing. It is misleading in the extreme for Plaintiff to characterize Defendant’s zip line as “unlicensed” when the licensing body had not yet decided that a license was required. Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s failure to comply with licensing requirements.

D. Common Carrier Liability

Plaintiff’s third argument is that Defendant is subject to common carrier liability. [HN6] Under Washington law, the duty [**11] of a common carrier to safeguard passengers from injury requires the carrier to exercise the highest degree of care consistent with the practical operation of its business or its type of transportation. Benjamin v. Seattle, 74 Wn.2d 832, 447 P.2d 172 (1968). Plaintiff acknowledges that there is no Washington caselaw addressing the issue of whether a zip line qualifies as a “common carrier,” but argues that this Court should expand the definition to include zip lines and similar amusement rides. In support of this argument, Plaintiff mentions a series of California decisions holding that a higher standard of care applies to amusement rides. Gomez v. Superior Court, 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41, 47 (Cal. 2005) (holding that the same high standard of care applied to carriers of passengers should also apply to operators of roller [*1213] coasters); Neubauer v. Disneyland, 875 F. Supp. 672, 673 (C.D. Cal. 1995) (holding that under California’s broad common carrier statute, a Disneyland amusement ride may be a common carrier).

This argument stumbles into the yawning gap between the Washington and California common-carrier statutes. [HN7] California’s common carrier statute is broad: Every one who offers to the public to carry persons, [**12] property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. Cal Civ Code § 2168. Washington’s common carrier statute is narrow and exhaustive:

“Common carrier” includes all railroads, railroad companies, street railroads, street railroad companies, commercial ferries, motor freight carriers, auto transportation companies, charter party carriers and excursion service carriers, private nonprofit transportation providers, solid waste collection companies, household goods carriers, hazardous liquid pipeline companies, and every corporation, company, association, joint stock association, partnership, and person, their lessees, trustees, or receivers appointed by any court whatsoever, and every city or town, owning, operating, managing, or controlling any such agency for public use in the conveyance of persons or property for hire within this state.

RCW 81.04.010(11). Plaintiff offers no argument or evidence for the proposition that this definition includes a zip line. Again, Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s liability as an alleged common carrier.


Defendant’s motion [**13] for Summary Judgment (Dkt. No. 49) is GRANTED in part and DENIED in part. Plaintiff’s claims for breach of the duty of ordinary care survive summary judgment. Plaintiff’s claims for breach of the duty to disclose, claims relating to the violation of the WAC, and claims relating to common carrier liability are DISMISSED.

DATED this 24th day of June 2011.

/s/ John C. Coughenour

John C. Coughenour


Why accident reports can come back to haunt you.

Herbst v. L.B.O. Holding, Inc., 2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285

Accident reports can be admitted, if the accident is substantially similar, which proves to the jury that you don’t mind injuring people.

In this case, the plaintiff as an adult, was using a ski area alpine slide when his sled left the track causing him injury. He sued for his injuries. The ski area,

English: The Alpine Slide on Jackson Hill.

Image via Wikipedia

Attitash Bear Peak Resort, in Bartlett, New Hampshire had filed a motion in limine with the court which gave rise to this decision.

A motion in limine is a motion where one party asks the court to exclude testimony or statements being proffered by the other party. Here the Ski area was attempting to have prior reports from accidents on the alpine slide kept out of the trial. The ski area and the plaintiff were also attempting to restrict or prohibit other testimony and exhibits also.

One of the first issues was the background and history of the plaintiff. The plaintiff was trying to prevent the defendant from brining in the issue that the plaintiff had been convicted of mail fraud. An issue like this is based on whether the felony conviction is a conviction for dishonesty or fraud. Here it was a felony conviction for dishonesty. A felony normally cannot be brought in, absent special circumstances if the conviction is greater than ten (10) years old. Although the plaintiff’s conviction was greater than ten years old, because of the type of conviction, the judge thought it was relevant and allowed the conviction to be used at trial.

The next issue was the amount of medical bills incurred by the plaintiff. The plaintiffs’ medical bills were paid by Medicaid. As such, those bills when paid were discounted substantially. The plaintiff wanted to claim the medical bills were the amount prior to the Medicaid discount. Here the judge found that the full value of the medical bills was to be admitted not the discounted amount paid by Medicaid.

The value of the medical bills is always an important point. The jury usually bases its damages as a function of the medical bills.

The defendant wanted to exclude expert testimony of the plaintiff’s expert witness about warning signs or the inadequacy thereof. The plaintiff’s expert had only mentioned the signs in one sentence of his report and included photographs of the signs in his report. An expert witness report must contain a complete statement of the opinions he or she will express and the basis or the reasons for those opinions. The defense argued the one sentence was not enough to be a complete statement of the opinion. However, the court found it to be enough and will allow the testimony of the expert about the inadequacy of the signage into the trial.

The final argument was the plaintiff wanted to admit into evidence the accident reports of the 22 similar prior accidents. Six of the reports came from the New Hampshire Department of Safety, and 15 were from Attitash itself. One of the reports was based on an observation of the plaintiff’s expert witness when he was at the site investigating the scene.


For an accident report to be admitted into trial the report must be substantially similar to the accident at issue.

Evidence of prior accidents is admissible . . . only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar

The court found that four of the reports would be admitted of the six filed with the state and the 15 kept by the defendant. Those six were substantially similar to the accident that injured the plaintiff. Here, that similarity was the sled leaving the track on a curve.

The court found the following four reports significant and similar.

·         the accident on July 12, 2005 (where the rider “came through [the] dip, came to next set of banks, came out of track”);

·         the accident on July 23, 2005 (where the “sled came off track” near a bank);

·         the accident on August 3, 2005 (where the rider “hit the curve, jumped the track”); and

·         the accident on July 16, 2006 (where the rider “came from a right turn into a left turn and his cart flew off”).

The court also agreed to allow the report of the plaintiff’s expert witness of the accident he observed.

The issue then becomes what does this prove?

I believe it proves that it proves to the jury that the defendant has a dangerous track. The jury will see four reports from injuries substantially similar to the one the plaintiff is complaining about. How else could you look at these reports, except as proof that the track was dangerous AND that the defendant had done nothing to correct the problems or make the track safe.

Here were accidents for five years prior to the plaintiff’s accident and one, the expert witness one, occurring after the injury that showed there was a problem.

No matter, how much your employees and expert witness argue that the track is not dangerous, the jury is going to be looking at reports, written documents, prepared by you the defendant, saying the exact opposite.

So Now What?

Do you not create accident reports. No, you must keep records of problems, until they are fixed or used in litigation. However the reason for the reports is critical. If you are keeping them to track accidents, you are doing it for the wrong reason. You use them to do two things and two things only.

·        Provide information in case there is a need such as state or federal investigation or litigation.

·        To solve problems.

1. Any accident report must be solely that, the basic facts, who, what, where, when; never ever, ever a why.

          Accident reports should never have speculation or opinion in them.

2.      You must do something with the information you gather on accident reports. You cannot just collect them. If you notice a trend or locations fix it.

          If you can’t fix it, put up a sign, put it in the waiver, instruct the people about it and tell them they will get hurt if they don’t pay attention.

Below is the accident report used by a major ski area. If you look, the information collected is done so to gather information and prevent litigation.



Nothing more than the absolute essentials is captured. These are 5 X 7 cards. The information on the form is 100% from the injured party. No information is put on the card by the patrollers unless it is direct information acquired by the patroller such as the release number setting on the skis, etc.

If there are witnesses then there are 5 X 7 cards for them to complete. There was also a form if a ski school student was injured. If the accident was a life changing incident, major trauma then there were more forms. But for 99% of the accidents, the entire report fit in a patroller’s pocket.

If the injured party cannot fill out the card, then the patroller asks the questions and writes down what the injured party says.

No opinion, no estimates, no guesses, just the facts. (Remember Dragnet the TV show from the 60s.)

Then, once you have the information it must be used. Where are the problems, can we fix the problems, should we warn people about the problems? What can we do to prevent injuries, and if we can’t can we warn people they don’t get injured?

If not, those reports will show up in trial, and probably not to help you.

For an article about bad accident reports see Be Afraid, be very afraid of pre-printed forms for your recreation business.

What do you think? Leave a comment.

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Herbst v. L.B.O. Holding, Inc., 2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285

Herbst v. L.B.O. Holding, Inc., 2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285

Edward Herbst v. L.B.O. Holding, Inc., d/b/a Attitash Bear Peak Resort

Civil No. 09-cv-233-JL


2011 DNH 72; 783 F. Supp. 2d 262; 2011 U.S. Dist. LEXIS 46977; 85 Fed. R. Evid. Serv. (Callaghan) 285

May 2, 2011, Decided

May 2, 2011, Filed

COUNSEL:  [**1] For Edward Herbst, Dina Herbst, Plaintiffs: R. Peter Taylor, McNeill Taylor & Gallo PA, Dover, NH.

For L.B.O. Holding, Inc., Defendant: Thomas B.S. Quarles, Jr., Devine Millimet & Branch PA (Manchester), Manchester, NH.

JUDGES: Joseph N. Laplante, United States District Judge.

OPINION BY: Joseph N. Laplante



This case arises from injuries, including a broken ankle, that plaintiff Edward Herbst suffered after falling off an alpine slide at Attitash Bear Peak Resort, a ski area in Bartlett, New Hampshire that offers the slide as a summer recreational activity. Herbst brought suit against the resort’s owner, L.B.O. Holding, Inc. (“Attitash”), asserting claims for strict products liability and negligence. Specifically, he alleges that the slide is unreasonably dangerous to its riders, that Attitash was negligent in operating it, and that Attitash failed to adequately instruct and warn Herbst on its proper use. Attitash denies those allegations and asserts that Herbst’s  [*265]  own negligence caused the accident. This court has subject-matter jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity).

Both parties have moved in limine to admit or exclude various types of evidence at the upcoming jury trial, currently [**2] scheduled for May 2011. See L.R. 16.2(b)(3). Specifically, Attitash has moved to admit evidence of Herbst’s prior conviction for mail fraud, to exclude evidence of the face amount of Herbst’s medical bills, and to preclude Herbst’s expert witness from testifying about the adequacy of the slide’s warnings. Herbst, in turn, has moved to admit evidence of prior and subsequent accidents on Attitash’s alpine slide. Following oral argument, this court rules on the limine motions as set forth below.

I.Attitash’s motion to admit prior conviction1

1 Document no. 19.

Attitash has moved to admit evidence that Herbst was convicted of felony mail fraud, see 18 U.S.C. § 1341, in a New York federal court on July 30, 1999, when he was 46 years old. See United States v. Herbst, No. 98-cr-771-001 (S.D.N.Y. July 27, 1999). Specifically, Herbst pled guilty to using the mails in connection with bribing an employee of the New York City Department of Finance to reduce or eliminate his overdue property taxes and interest. He served a three-month prison sentence, ending on or before January 1, 2000, and then remained on supervised release for a period of three years.

As a general rule, [HN1] “evidence that any witness [**3] has been convicted of a crime shall be admitted” for impeachment purposes “if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.” Fed. R. Evid. 609(a)(2). Herbst concedes that his mail fraud conviction involved dishonesty or false statement and therefore falls within that rule. See, e.g., United States v. Orlando-Figueroa, 229 F.3d 33, 46 (1st Cir. 2000).

But evidence of such a conviction “is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is later, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b).2

2 Rule 609(b) also requires “sufficient advance written notice to provide the adverse party with a fair opportunity to contest the use” of the prior conviction, which Herbst concedes he has received.

More than ten years have passed since Herbst was released from the confinement imposed [**4] for his mail fraud conviction. Attitash argues that Herbst is to blame for that fact, because he waited nearly three years after his 2006 accident to bring this action, and then requested a trial continuance in 2010. But Attitash has not shown that Herbst acted improperly in either regard, or that he “manipulated either the calendar or the scheduling process in order to postpone the trial and allow the clock to run on [his] conviction.”3 United States v. Nguyen, 542 F.3d 275, 280 (1st Cir. 2008) (rejecting a similar argument that “had [the] trial started a few months earlier–as did the trial of [certain] codefendants–the ten-year window would have  [*266]  remained open”). So there is no reason not to apply Rule 609(b) here. Id. at 281.

3 Indeed, personal injury actions are routinely brought near the end of the limitations period, so as to allow the nature of the injury to become fully understood.

 [HN2] “Given the tenor of Rule 609(b), common sense suggests that felony convictions more than ten years old should be admitted only sparingly and in especially compelling circumstances,” based on a “particularized showing” that their probative value substantially outweighs their prejudicial effect. Id. at 278  [**5] (citing 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 609.06[1] (2d ed. 2007)). Factors to consider in making that determination “may include (i) the impeachment value of the particular convictions, (ii) their immediacy or remoteness . . .; (iii) the degree of potential prejudice that they portend; (iv) the importance of the defendant’s testimony; and (v) the salience of the credibility issue in the circumstances of the particular case.” United States v. Brito, 427 F.3d 53, 64 (1st Cir. 2005).

Here, Herbst’s mail fraud conviction has a direct bearing on his credibility and veracity, and thus a high degree of impeachment value. He demonstrated a willingness to defraud others to improve his own financial situation. Because Herbst is the primary, and in some respects only, witness to his accident and the ride(s) leading up to it (which allegedly affected his state of mind, making him feel the need to slide faster), and because Attitash contends that Herbst himself was at fault for the accident, his testimony is likely to be of great importance at trial, and his credibility is likely to be a particularly salient issue for the jury.

“Of course,  [HN3] the mere fact that  [**6] [a witness’s] credibility is in issue . . . cannot, by itself, justify admission of evidence of convictions over ten years old,” because that “would make the ten year limit in Rule 609(b) meaningless.” United States v. Brown, 603 F.2d 1022, 1028 (1st Cir. 1979). But the case for admitting evidence of Herbst’s mail fraud conviction is especially compelling here, given the fraudulent nature of his crime, the likely importance of his testimony and credibility with regard to events that only he (and, in some respects, his daughter) witnessed, and that his conviction, which occurred when he was 46 years old, is barely older than ten years.4

4 In fact, as noted supra, had this action been filed earlier, or trial not been continued, impeachment would have been permitted under Rule 609(a).

While the admission of a prior felony conviction always carries some risk of prejudice, that risk is much lower here than it would be, for example, in a criminal case brought against Herbst. See, e.g., Orlando-Figueroa, 229 F.3d at 46 (noting that “Rule 609 is primarily concerned with potential unfairness to a [criminal] defendant when his prior convictions are offered” and concluding that, even under the particular  [**7] circumstances of that criminal case, the court could have admitted evidence of a witness’s mail fraud conviction under Rule 609(b), over the defendant’s objection).

The risk of prejudice is further reduced because Herbst suffered objectively verifiable injuries in the accident (including a broken ankle) and is not the only person who has done so in recent years. See Part IV, infra. Given that evidence, the jury is unlikely to regard the accident itself, or Herbst’s decision to bring this lawsuit, as fraudulent, or to reject his claims merely because he has a criminal history. Rather, it is likely to consider Herbst’s conviction for the limited, and proper, purpose of determining whether to believe his specific testimony regarding his conduct on the slide, the reasons for it (including his state of mind), and the pain and suffering it caused him.

 [*267]  Having considered the specific facts and circumstances of this case, the court concludes that the probative value of Herbst’s mail fraud conviction substantially outweighs its prejudicial effect, and that it is in the interests of justice to admit it into evidence. Attitash’s motion to admit that evidence is therefore granted. To further reduce  [**8] any risk of prejudice, Herbst may request a limiting instruction to the jury, both when the evidence is admitted and in the final jury charge. See, e.g., United States v. Tracy, 36 F.3d 187, 194 (1st Cir. 1994).

II.Attitash’s motion to exclude medical bills5

5 Document no. 20.

Attitash has moved to preclude Herbst from introducing evidence of the face amounts of his medical bills, arguing that the reasonable value of medical services is the amount actually paid for them (here, by Medicaid), not the higher amount billed.  [HN4] This court has repeatedly refused, however, “‘to exclude evidence of the billed cost of medical services’ in favor of ‘the amounts actually paid’ in satisfaction of those costs by the plaintiff’s health insurers.” Reed v. Nat’l Council of Boy Scouts of Am., Inc., 706 F. Supp. 2d 180, 190 (D.N.H. 2010) (quoting Aumand v. Dartmouth Hitchcock Med. Ctr., 611 F. Supp. 2d 78, 91 (D.N.H. 2009)); see also Bartlett v. Mut. Pharm. Co., 2010 U.S. Dist. LEXIS 142906, 2010 WL 3156555, at * 2; Williamson v. Odyssey House, Inc., 2000 DNH 238, 2000 WL 1745101, at *1 (DiClerico, D.J.).

As explained more fully in those decisions, Medicaid write-offs fall within the scope of New Hampshire’s collateral source  [**9] rule, which “provides that ‘if a plaintiff is compensated in whole or part for his damages by some source independent of the tort-feasor, he is still permitted to make full recovery against the tort-feasor.'” Reed, 706 F. Supp. 2d at 190 (quoting Moulton v. Groveton Papers Co., 114 N.H. 505, 509, 323 A.2d 906 (1974)). Accordingly, this court has not only permitted plaintiffs to present evidence of the amounts billed, but has prohibited defendants from presenting evidence of the amounts actually paid, deeming such evidence unfairly prejudicial. See, e.g.,  Bartlett, 2010 U.S. Dist. LEXIS 142906, 2010 WL 3156555, at *2 (citing Fed. R. Evid. 403).

Attitash notes that a number of New Hampshire Superior Court judges have reached the opposite conclusion. But this court considered much, if not all, of that case law in Reed, which noted that there is Superior Court precedent in both directions and announced that “unless and until this state’s version of the collateral source rule is changed by the New Hampshire legislature or New Hampshire Supreme Court, this court will continue to apply it to billed amounts ‘written off’ by a plaintiff’s providers, in accordance with existing law here and in the vast majority of other jurisdictions.”  [**10] 706 F. Supp. 2d at 190, 194.6

6 This is not to say, however, that the court finds the contrary Superior Court decisions wholly unpersuasive, at least as a policy matter, particularly in the context of private health insurance (as opposed to Medicaid or other public health insurance). But it is this state’s legislature–or, with respect to common-law rules, its Supreme Court–which decides such matters, not this court.

Attitash’s motion in limine is therefore denied. It is important to note, however, that Attitash may still challenge whether the billed amounts reflect the reasonable value of Herbst’s medical services, provided it does not use evidence of the Medicaid write-offs to do so, and otherwise complies with the rules of evidence. See  [*268] Bartlett, 2010 U.S. Dist. LEXIS 142906, 2010 WL 3156555, at *2 (citing Reed, 706 F. Supp. 2d at 194).

III.Attitash’s motion to exclude expert testimony on warnings7

7 Document no. 34. The court discussed this issue with the parties at oral argument (before Attitash’s motion had been filed) and then gave both parties an opportunity to brief it before trial.

Attitash has also moved to preclude Herbst’s expert witness, engineer John Mroszczyk, from testifying that the slide’s warnings were [**11] inadequate, arguing that no such opinion was disclosed in his expert report. See [HN5] Fed. R. Civ. P. 26(a)(2)(B) (expert “report must contain . . . a complete statement of all opinions the witness will express and the basis and reasons for them“) and 37(c)(1) (where “a party fails to provide information . . . as required by Rule 26(a),” it “is not allowed to use that information . . . at a trial, unless the failure was substantially justified or is harmless“). The only warning-related opinion expressly set forth in Mroszczyk’s report was that the slide had “a number of instruction and warning signs at the slide loading area” (photos of which he attached to the report), but “no speed limit signs posted along the slide.”

Herbst concedes “that it would certainly have been preferable to ensure that Mroszczyk clearly expressed his opinion” about the warnings in his expert report, see document no. 33, at 4, but nevertheless argues that it is a reasonable inference from the report that he considers the warnings inadequate, and that he should therefore be allowed to offer that opinion at trial. See, e.g., Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 762 (7th Cir. 2010) (expert report need  [**12] not “replicate every word that the expert might say on the stand,” as long as it sufficiently “convey[s] the substance of the expert’s opinion . . . so that the opponent will be ready to rebut, to cross-examine, and to offer a competing expert, if necessary”) (quotation omitted).

Herbst has submitted an affidavit from Mroszczyk clarifying that he “do[es] not believe that any warning in a sign regarding the particular problems” that Herbst encountered on the alpine slide “would be adequate to make this ride safe,” i.e., he “do[es] not believe that this condition in the slide could be made safe by warnings.” Document no. 33-1, at 2. This court agrees that such an opinion can be reasonably inferred from his report, which, after noting the existing signs and the lack of speed limits, states that riders have no ability to gauge their speed anyway and that, even “at a reasonable speed,” they could still “leave the track.” The strong implication is that no warning would be adequate.

The problem with that opinion, at least for Herbst, is that it means that Attitash’s alleged failure to warn did not cause his accident and injuries, because, according to Mroszczyk, no warning would have been adequate  [**13] to protect Herbst from the particular problems he encountered. See, e.g., Trull v. Volkswagen of Am., Inc., 145 N.H. 259, 264, 761 A.2d 477 (2000) (“failure to warn must be [a] proximate cause of plaintiff’s injuries”); LeBlanc v. Am. Honda Motor Co., 141 N.H. 579, 586, 688 A.2d 556 (1997) (“[t]he issue in [a] failure to warn claim . . . is whether the danger . . . was or could have been made reasonable by the issuance of adequate warnings”). In other words, the opinion supports Herbst’s unreasonable dangerousness theory, but at the expense of his failure-to-warn theory.

Nevertheless, if Herbst wishes to offer Mroszczyk’s opinion at trial that the slide’s warnings were inadequate because no warning regarding the particular problems [*269]  that Herbst encountered would have made the ride safe, this court will allow him to do so. While not expressly disclosed in Mroszczyk’s report, that opinion can be reasonably inferred from the substance of the report, and Attitash has received sufficient notice to “be ready to rebut [it], to cross-examine, and to offer a competing expert, if necessary.” Metavante, 619 F.3d at 762. Attitash’s motion to exclude such testimony is denied.8

8 Mroszczyk should be careful, however, not to venture  [**14] beyond the limited opinion set forth above, or to suggest (contrary to that opinion) that some other warning by Attitash would have been adequate to prevent Herbst’s accident.

IV.Herbst’s motion to admit evidence of other accidents9

9 Document no. 15.

Herbst, in turn, has moved to admit evidence of various other accidents on Attitash’s alpine slide, including 21 that occurred between 2004 and 2006 (either prior to or just after his accident), and also one that his expert witness, Mroszczyk, happened to observe in 2010 while conducting a site visit for purposes of inspecting the slide and preparing his expert report in this case.10 Attitash objects that those accidents were not substantially similar to Herbst’s accident and that, in any event, evidence of other accidents–particularly the one Mroszczyk witnessed in 2010–would be unfairly prejudicial, would confuse the jury, and would unduly delay the trial. See Fed. R. Evid. 403.

10 Herbst initially sought to admit evidence of even more accidents, including some involving collisions between two riders. At oral argument and in his subsequent briefing, however, he narrowed his request to those accidents that he considers most similar to his  [**15] own.

 [HN6] “Evidence of prior accidents is admissible . . . only if the proponent of the evidence shows that the accidents occurred under circumstances substantially similar to those at issue in the case at bar.” Moulton v. Rival Co., 116 F.3d 22, 26-27 (1st Cir. 1997) (quoting McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981)). Both parties agree that the same requirement applies to subsequent accidents, as other courts have held. See, e.g., Reddin v. Robinson Prop. Group, LP, 239 F.3d 756, 760 (5th Cir. 2001). “At bottom, the ‘substantially similar’ requirement is a more particularized approach to the requirement that evidence be probative.” Trull v. Volkswagen of Am., Inc., 187 F.3d 88, 98 n.9 (1st Cir. 1999).

“‘Substantial similarity’ is a function of the theory of the case.” Moulton, 116 F.3d at 27. Here, Herbst’s theory (supported by expert testimony) is that Attitash’s alpine slide causes riders to move side-to-side within the slide and sometimes to lose control, particularly through curves; and that if a rider reaches the end of a curve embankment in that state, there is a risk of falling off the slide, as allegedly happened in his accident. According to Herbst’s expert, many [**16] curves in the slide pose that risk. In light of that theory, this court construes “substantially similar” to mean, for purposes of this case, that the rider in the other accident must have lost control around a curve and fallen off the slide.

A.2004-2006 accidents

Herbst has made evidentiary proffers regarding each of the accidents at issue. For the 21 accidents occurring between 2004 and 2006, he has submitted accident reports (6 from the New Hampshire Department of Safety and 15 from Attitash itself). The reports, however, provide very little detail. Most of them [*270] indicate that the rider fell off the slide, but not how or where it happened. Mroszczyk believes that each accident “probably” involved loss of control and ejection around a curve, because riders ordinarily would not fall off the slide on a straightaway. But at least two of the accidents were described as occurring on a straightaway, and some had other causes (e.g., a squirrel in the track). So that assumption seems flawed.

This court has closely reviewed each of the accident reports and finds that Herbst has met his burden of showing substantial similarity only as to four accidents:

·         the accident on July 12, 2005 (where the  [**17] rider “came through [the] dip, came to next set of banks, came out of track”);

·         the accident on July 23, 2005 (where the “sled came off track” near a bank);

·         the accident on August 3, 2005 (where the rider “hit the curve, jumped the track”); and

·         the accident on July 16, 2006 (where the rider “came from a right turn into a left turn and his cart flew off”).

All of the other accidents involved materially different circumstances, or at least were not sufficiently described for this court to deem them substantially similar. See, e.g., Downey v. Bob’s Disc. Furniture Holdings, Inc., 633 F.3d 1, 9 (1st Cir. 2011) (affirming the exclusion of such evidence where plaintiffs proffered only a “bare bones” printout containing a “cryptic description” of prior incidents, with “no details,” and “conducted no investigation into the underlying facts”).11

11 Herbst argues that Attitash admitted, in an interrogatory, that all 15 of the accident reports it produced involved “accidents similar to the plaintiff’s: where an operator left the track and was injured.” But,  [HN7] for purposes of discovery, “a flexible treatment of relevance is required and the making of discovery . . . is not a concession or determination  [**18] of relevance for purposes of trial,” or admissibility. Fed. R. Civ. P. 26(b)(1), advisory committee notes (1970). Attitash’s interrogatory answer was not an admission of substantial similarity within the meaning of Moulton.

Attitash argues that evidence of even the substantially similar accidents should be excluded as unfairly prejudicial, confusing to the jury, and likely to unduly delay the trial. See Fed. R. Evid. 403. But this court sees little to no risk in any of those respects. Because the accident reports provide so little detail, and appear to be the only available evidence of what happened, the use of such evidence will necessarily be limited in scope. Its main purpose is simply to show that riders occasionally lose control and fall off the track around a curve, as Herbst did, and that Attitash had notice of that risk. That is a proper and probative purpose, which outweighs any of the countervailing concerns listed in Rule 403.

This court therefore grants Herbst’s request to admit evidence of the four accidents noted above, but denies his request to admit evidence of the other accidents between 2004 and 2006. If Herbst believes that this court has overlooked any accident(s)  [**19] with circumstances comparably similar to those four accidents, or has additional evidence of substantial similarity beyond that proffered to date, he may raise that issue and/or make a further evidentiary proffer at trial, outside the presence of the jury.

B.2010 accident

For the accident in 2010, Herbst has submitted an affidavit from Mroszczyk explaining what he observed. According to Mroszczyk, that accident, like Herbst’s, involved a rider’s loss of control, side-to-side movement within the slide, and then  [*271]  ejection from the slide around a curve (albeit a different curve, more than 100 feet down the slide from where Herbst fell). Mroszczyk claims that sequence of events “is precisely what I believe occurred to Mr. Herbst.” Based on that proffer, this court finds that Herbst has sufficiently shown that the 2010 accident was substantially similar to his own, clearing that hurdle for admissibility.12

12 Attitash argues that the 2010 accident resulted from the rider going airborne over a slide feature called “the dip” (not from being ejected around a curve), but that strikes the court as implausible, given the considerable distance between the dip and the place where the rider landed. Attitash  [**20] has not proffered any evidence to support that version of events. In any event, if Attitash wishes to challenge Mroszczyk’s testimony regarding how that accident happened, it may do so at trial. An adjuster from Attitash’s insurance company also witnessed the accident and could be called as a witness.

Attitash argues that evidence of the 2010 accident should nevertheless be excluded as unfairly prejudicial, confusing to the jury, and likely to unduly delay the trial. See Fed. R. Evid. 403. It is true that such evidence may pose some risk of prejudice and juror confusion, since the accident happened, incidentally, on the day when Herbst’s expert was inspecting the slide, which might suggest to the jury that accidents happen on the alpine slide with greater frequency than they actually do. Attitash, though, has the ability to present evidence of how often accidents actually happen.13 The jury should not have any trouble understanding or accepting that the timing was just a coincidence.

13 The standard for defendants to introduce evidence of prior accidents is more lenient than for plaintiffs. See Trull, 187 F.3d at 98 n.9.

Conversely, evidence of the 2010 accident has very high probative [**21] value. Mroszczyk’s direct observation of an accident substantially similar to the one that Herbst suffered has the ability to inform, and even corroborate, his expert opinions about what happened to Herbst, and the reason(s) for it. That firsthand experience could make his testimony much more persuasive and helpful to the jury, whereas preventing him from discussing the accident could leave the jury with an incomplete, and potentially inaccurate, understanding of the basis for and reliability of his opinions.

On balance, this court concludes that the probative value of the 2010 accident outweighs the risk of prejudice and juror confusion, and therefore grants Herbst’s motion to admit evidence of that accident. As to Attitash’s argument that such evidence will cause undue delay, this court doubts that will happen, but will keep that concern in mind during trial and will be open to any proposals that Attitash may have (short of outright exclusion) for reasonably limiting the amount of such evidence, and the manner in which it is presented, so as to avoid undue delay and reduce the risk of prejudice.


For the reasons set forth above, Attitash’s motion to admit evidence of Herbst’s  [**22] prior conviction14 is GRANTED, Attitash’s motion to exclude evidence of Herbst’s medical bills15 is DENIED, Attitash’s motion to preclude Mroszczyk from testifying about the slide’s warnings16 is DENIED, and Herbst’s motion to admit evidence of  [*272]  prior and subsequent accidents17 is GRANTED in part and DENIED in part.

14 Document no. 19.

15 Document no. 20.

16 Document no. 34.

17 Document no. 15.


/s/ Joseph N. Laplante

Joseph N. Laplante

United States District Judge

Dated: May 2, 2011

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Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524

Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
Civ. A. No. 1101
United States District Court for the District of Vermont
96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524
April 16, 1951
Counsel: [**1]
Justin G. Cavanaugh and William H. Cooney, Springfield, Mass., for plaintiffs Florine Wright and Robert B. Wright, Jr.
McNamara & Larrow, Burlington, Vt., Frank G. Sterritte, New York City, for defendants Mt. Mansfield Lift, Inc. and Mt. Mansfield Hotel, Inc.
Clifton G. Parker, Morrisville, Vt., for defendant Stowe-Mansfield Ass’n, Inc.
This is an action for damages resulting from a skiing accident brought by Florine and Robert B. Wright, Jr., husband and wife, of Springfield, Mass., against the Mt. Mansfield Lift, Inc., Mt. Mansfield Association, Inc. The case was heard on its merits at the February term, 1951, U.S. District Court, District of Vermont. At the conclusion of the plaintiff’s case, each of the three defendants filed a motion for a directed verdict. The motion, in each instance, is hereby granted.
The plaintiff, Mrs. Florine Wright, in her complaint, alleged that on January 23, 1949, she was skiing at the Mt. Mansfield ski area in Stowe, Vermont; that she had paid the required fee to one of the defendants, Mt. Mansfield Lift, Inc., hereinafter called Lift; had been transported to the top of Mt. Mansfield by this chair lift and [**2] having reached the top, started to ski down a marked trail; that on her way down the mountain, at a certain point on a ski trail, she ran against or collided with a snow-covered stump of a tree and thereby caused a serious fracture of her left leg.
The evidence viewed in the light most favorable to the plaintiff revealed the following situation. Stowe, Vermont, has become one of the largest winter sports areas of the eastern United States. The area of [*788] Mt. Mansfield is a snow bowl. In fact, the slogan of the area is ‘There is always snow in Stowe, you know’. Lift, Inc. was a Vermont corporation which owned or controlled land running up Mt. Mansfield on which it had erected a modern chair lift for skiers, the lift itself being better than a mile long.
In January, 1949, those who desired to ski down the trails of Mt. Mansfield in this area purchased a ticket at the bottom of the mountain where the lift commenced, the ticket costing 75 cents for a single ride up the mountain. After purchasing the ticket, the prospective skier stood in line and as the skier’s turn came, sat in the ski chair, generally with skis on. The skier was then hoisted better than 2,000 feet above the [**3] elevation of the bottom of the ski lift and deposited at the top of the ski lift at the top of Mt. Mansfield.
At the top of the ski lift, there was what is known as the Octogon House, made of stone, in which was served refreshments and also in which was a blackboard or chart on which were listed the particular trails which were open for skiing.
There were also located in this general area at the top of the lift signs pointing to the starting points of various trails down the mountain, each trail bearing a different name, such as Nosedive, Skimeister, Toll Road, etc. Most of these trails started on land that was owned or controlled by Lift, Inc. As these trails wended their way down Mt. Mansfield, they twisted their way, on occasion, onto lands owned or controlled by others. Defendant Mt. Mansfield Hotel, Inc., hereinafter called Hotel, Inc., at the time of the accident, owned and operated a hotel which at that time cared for approximately 20 guests. Most of these guests were ski enthusiasts. The Skimeister trail, as it came down Mt. Mansfield, came onto land of the Hotel, Inc. The Skimeister trail had been in operation for many years before this accident with the full knowledge and [**4] approval of Hotel, Inc. The trails were areas cleared down the rough mountain side of Mt. Mansfield by cutting trees, by bulldozing and by other methods. The trails are of varying width, some of trails being much more crooked than others.
The maintenance of the trails in the summertime consisted of mowing and cutting the brush and trees and of widening existing trails. Various residents, interested innkeepers in and about Stowe, men from the Forestry Department of the State of Vermont and workers provided by Lift, Inc., Hotel, Inc., and other organizations interested in skiing, did the summer maintenance work on these trails.
Generally speaking, there were three classes of trails on Mt. Mansfield which those who used the ski lift might choose. There was one class of trails known as expert trails. To maneuver these trails required a high degree of skiing ability. The second class of trails were known as the intermediate trails. These trails were less hazardous and less difficult than the expert trails, but one to negotiate them safely needed to be a fairly good skier. The third class of trails were known as the novice trails. These trails were for those who had skied but little. [**5]
During the winter of 1948-1949, the policing of the trails was done by an association known as the Mt. Mansfield Ski Patrol. This ski patrol consisted of five or six good skiers who were paid by the Mt. Mansfield Ski Club. This club, in turn, raised its funds by contributions from individuals, corporations, innkeepers and the like. Its total budget for the winter season of 1948-1949 was in the vicinity of $ 3,000. Of this, about $ 1,000 was contributed by the Hotel, Inc. and another substantial sum by the Lift, Inc.
The duties of this Ski Patrol were many. It was the Patrol’s duty each day to inspect each trail to determine which trails were suitable for skiing and which were not. Having done this, the patrol would see to it that the blackboard in the Octagon House which listed the trails open for skiing would properly list those that were open for skiing on this particular day. The patrol would also see to it that such trails as were adjudged by it as unsafe for skiing were closed off by chain or rope and that warning signs were put up at the start of the trail and at other places warning that this particular trail was not open.
In addition, members of the patrol skied down the [**6] trails [*789] and kept their eyes open for any unsafe conditions that appeared on open trails. If there were any, patrol members took steps to put up proper warning flags or proper safeguards or notified officials of the lift that there was a dangerous spot at a certain place on a certain trail so that steps would be taken immediately either to erect proper warning notices or to close off the trail.
The main purpose of the members of the ski patrol was to be available in case of any injury to any skier. Ski patrol members were trained in first aid and had equipment staged at various places on Mt. Mansfield for the purpose of removing injured skiers safely and expeditiously to the bottom of the mountain and if necessary to a hospital.
On January 23, 1949, Mr. and Mrs. Wright, accompanied by Mr. Abrams, went from Fayston, Vermont, where the Wrights were both working at this time, to Stowe, Vermont, for skiing purposes. Mr. Wright was an expert skier, having been certified as such, and was engaged as a ski instructor at the Mad River Valley ski project. Mrs. Wright had been skiing for 2-3 years and had taken lessons from her husband and others. She was not what is known as an expert [**7] skier, but was in what is generally termed as the intermediate ski class. Mr. Abrams was not as good a skier as Mr. and Mrs. Wright, but was generally able to negotiate intermediate trails.
On the day in question, this party arrived at the foot of Mt. Mansfield around noon. Mrs. Wright and Mr. Abrams purchased a ticket for 75 cents apiece to ride to the top of Mt. Mansfield on the ski lift. Mr. Wright being a professional was not required to buy a ticket. This was a courtesy extended by the lift to professional skiers. In due time, the party arrived at the top of Mt. Mansfield via the lift. Mr. Wright checked to see what trails were open and the group then went to the start of the Toll Road trail. The Toll Road trail down Mt. Mansfield is a gravelled road used by automobiles during the summertime. It is about four miles in length and one who goes down the Toll Road all the way, comes out at a point about two miles from the bottom of the lift and to get back to the lift, has to either walk or go by taxi. This Toll Road is classified as a novice trail. The party skied down the Toll Road until they came to a cut-off from the Toll Road, known as the 5th Avenue Cut-off. The party then [**8] turned onto this cut-off and skied down the cut-off until they arrived at the Skimeister trail. They then swung down the Skimeister trail until they came to the head of an open slope known as the T-bar slope, thence down that slope to the foot of the mountain. In coming down the mountain, Mr. Wright would lead the way, followed by Mrs. Wright and then followed in turn by Mr. Abrams. They would ski a distance of 200-300 feet, more or less, then stop and visit and then after resting a little, Mr. Wright would start off again followed in due time by Mrs. Wright and Mr. Abrams. Mr. Wright would ski as far as he thought wise on a given lap, stop and Mrs. Wright would come up behind him, stop, and Mr. Abrams the same. The first trip down these trails on Mr. Mansfield was uneventful. The party then got back onto the lift, again Mrs. Wright and Mr. Abrams purchasing tickets for 75 cents and were conveyed to the top of Mr. Mansfield once more.
The three of them started once again down the identical route they had taken on the first descent; down the Toll Raod to the 5th Avenue Cut-off, down the 5th Avenue Cut-off to the Skimeister trail, down the Skimeister trail to the top of the T-bar and [**9] the open slopes. The 5th Avenue Cut-off is just what the name implies, a cut-off from the Toll Road trail to another trail. It was an easy trail, a novice trail. The Skimeister trail, on the other hand, was an intermediate trail. The second trip down the mountain by this party was uneventful until the party came onto the Skimeister trail. There, a couple of hundred feet from where the Skimeister trail ran into the open slope and the T-bar lift, the party stopped for a rest and visit. Then Mr. Wright, as was the procedure on this particular day, skied down about 120 [*790] feet or so to within sight of the head of the T-bar lift, and also within sight of the hut called the Christienda hut, which is located near the top of the T-bar lift. He stopped and turned around and watched his wife come along. As Mrs. Wright began to approach him, she went into what is known as a snow-plow. This is a procedure used by skiers for stopping. It consists of turning the toes in to about an angle of 30 degrees each and putting more pressure on the inside runner of each ski. As she was snow-plowing to a stop, she suddenly fell and began to cry out in pain for help. Mr. Abrams, in the meantime, was [**10] standing at the spot they had last stopped. He then skied to the spot where Mrs. Wright had fallen.
Mr. Wright rushed up from a spot 15-20 feet away. Shortly a member of the ski patrol arrived with a toboggan. Mrs. Wright was in pain and was loaded onto the toboggan, tied onto the toboggan and thus taken down to the foot of the mountain and thence by automobile to the Morrisville Hospital.
The trail at the point of the accident was of good width and was more or less level land. It wasn’t hazardous or steep in any way at this spot. No stump showed above the snow. There was a smooth snow surface. Indeed the Skimeister trail had ample snow. The witness Abrams testified that at the point of the plaintiff’s fall, he got down and brushed the snow aside with his hand. He then found a stump 4-5 inches high from the ground- definitely a cut tree- no jagged edges. From the evidence one could infer that it was this obstacle that caused Mrs. Wright to fall and break her left leg.
From this recitation of the facts, as viewed in the light most favorable to the plaintiffs, it is apparent that there is no evidence of any nature that connects the defendant, Stowe-mansfield Association, Inc., with [**11] this case. Stowe-Mansfield Association, Inc. neither owned or controlled any of the land on which this accident happened. It was merely a promotional enterprise for the Stowe-Mansfield area. Indeed, the plaintiffs make no claim, that as the evidence stands, there is liability upon Stowe-Mansfield Association, Inc.
Therefore, a directed verdict on this defendant’s part is granted.
The situation is different, however, in regard to the Lift Company and the Hotel Company.
In the eyes of the law, the plaintiffs were invitees of the Lift and Hotel Companies. Whenever one makes such use of another’s premises as the owner intends he shall, or such as he is reasonably justified in understanding that the owner intended, this is an implied invitation to enter onto the land of anther. Wool v. Larner, 112 Vt. 431, 436, 26 A.2d 89.
The Lift Company invited the plaintiffs to the top of the lift. It maintained on its premises a record as to which trails were open and had signs on its property for the purpose of leading the plaintiffs to their choice of trail, in this case the Toll Road Trail. Once on the trail and heading down onto the Skimeister Trail, part of which was on land of the Hotel Company. [**12] This trail the Hotel Company had sanctioned for years. Indeed, the reason for each of the trails mentioned being open was to financially benefit both the Lift Company and the Hotel Company.
The duty owed the plaintiffs, invitees, by each of these two defendants was to advise them of any dangers which reasonable prudence would have foreseen and corrected. Slattery v. Marra Bros., 2 Cir., 186 F.2d 134, 136.
Skiing is a sport; a sport that entices thousands of people; a sport that requires an ability on the part of the skier to handle himself or herself under various circumstances of grade, boundary, mid-trail obstructions, corners and varied conditions of the snow. Secondly, it requires good judgment on the part of the skier and recognition of the existing circumstances and conditions. Only the skier knows his own ability to cope with a certain piece of trail. Snow, ranging from powder to ice, can be of infinite kinds. Breakable crust may be encountered where soft snow is expected. Roots and rocks may be hidden [*791] under a thin cover. A single thin stubble of cut brush can trip a skier in the middle of a turn. Sticky snow may follow a fast running surface without warning.
[**13] Skiing conditions may change quickly. What was, a short time before, a perfect surface with a soft cover on all bumps may fairly rapidly become filled with ruts, worn spots and other manner of skier created hazards.
The doctrine of volenti non fit injuria applies. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary. Thus one who goes ice skating on a rink assumes the ordinary risks of the sport which includes inequalities of surface. Oberheim v. Pennsylvania Sports and Enterprises. 358 Pa. 62, 55 A.2d 766, 769; Shields v. Van-Kelton Amusement Corp., 228 N.Y. 396, 127 N.E. 261; McCullough v. Omaha Coliseum Corp., 144 Neb. 92, 12 N.W.2d 639, 643. One who goes to a swimming beach as an invitee accepts the dangers that inhere in it so far as they are obvious and necessary. McGraw v. District of Columbia, 3 App.D.C. 405, 25 L.R.A. 691, 692-693. A passenger who rides on a scenic railway and falls off, through no unusual action of the railway, may not recover. The passenger has placed himself in a position of obvious danger for the purpose of receiving the sensation caused by the sudden and violent motion of the car. He assumed [**14] the risk. Lumsden v. L. A. Thompson Scenic Railway Company, 130 App.Div. 209, 114 N.Y.S. 421, 423.
One who had participated in bobsledding and had followed that sport for some years assumes the risk attendant upon participation of that sport. The bobsled enthusiast knew that bobsled racing was a dangerous sport and could not recover for such injuries received. Clark v. State, 195 Misc. 581, 89 N.Y.S.2d 132, 139.
In this skiing case, there is no evidence of any dangers existing which reasonable prudence on the parts of the defendants would have foreseen and corrected. It isn’t as though a tractor was parked on a ski trail around a corner or bend without warning to skiers coming down. It isn’t as though on a trail that was open work was in progress of which the skier was unwarned. It isn‘t as though a telephone wire had fallen across the ski trail of which the defendant knew or ought to have known and the plaintiff did not know.
The trail at the point of the accident was smooth and covered with snow. There were no unexpected obstructions showing. The plaintiff, in hitting the snow-covered stump as she claims to have hit, was merely accepting a danger that inheres in the sport of skiing. [**15] To hold that the terrain of a ski trail down a mighty mountain, with fluctuation in weather and snow conditions that constantly change its appearance and slipperiness, should be kept level and smooth, free from holes or depressions, equally safe for the adult or the child, would be to demand the impossible. It cannot be that there is any duty imposed on the owner and operator of a ski slope that charges it with the knowledge of these mutations of nature and requires it to warn the public against such. Chief Justice Cardozo in the case of Murphy v. Steeplechase Amusement Co., Inc., 250 N.Y. 479, 166 N.E. 173, 174, discusses the law, which I hold to be applicable to ski accident cases and I quote:
‘Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contract with the ball. * * * The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquillity. The plaintiff was [**16] not seeking a retreat for meditation.
Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.
‘A different case would be here if the dangers inherent in the sport were obscure or unobserved. * * * Nothing happened to the plaintiff except what common [*792] experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe.’
The verdict is therefore directed for each defendant.

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People familiar with the legal system are more likely to sue.

Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17, 226

However, the court found the manufacture of a sports bra not liable. The plaintiff in this case sued for burns she received while wearing a sports bra. The bases of the claim were burns the plaintiff received allegedly from the chemicals in the materials used to manufacture the bra. However, the plaintiff also laid out in the prison court yard wearing the black sports bra in over 100 degree heat. She suffered a few burns that were 1 to 3 centimeters in size.

The plaintiff argued failure to warn, negligence, and strict products liability claims.

The court dismissed the failure to warn and negligence claims because the plaintiff did not have any proof, other than her own statements, that there was a duty or a breach of the duty to her. No other witness or more importantly expert witness corroborated her claims. To prove negligent design under North Dakota law the plaintiff must prove “that the defendant failed to use reasonable care in designing the product and that failure resulted in a defective product.” The plaintiff was never able to connect that the design of the bra was the cause of her burns. There was no legal or even reasonable connection between her burns and the fabric, the construction or design of the bra.

Under a strict liability theory in North Dakota the plaintiff had to prove.

…by a preponderance of the evidence the product was defective in design or manufacture; the defect rendered the product unreasonably dangerous to the consumer; the defect existed when the product left the manufacturer; and the defect was a proximate cause of the plaintiff’s injuries.

The key is unreasonably dangerous. Simply having a product that produced an injury is not enough to prove a strict liability defect claim. You must supply a connection between the injury and the product AND that the problem with the product was unreasonable. Again, here is where the court said an expert witness was needed to prove the defect and whether that defect was unreasonable.


There is a good discussion of North Dakota product liability law in this case, no matter the facts. The issue to remember, unlike negligence, which is uniformly defined and applied in all 50 states, each state has a slightly different approach to product liability claims.

The information contained here is good, but best only for North Dakota.

However, to win a product liability case you must state a cause of action. Injuries alone are not enough.

Familiar with the legal system usually means lawyers and paralegals. However, in this case it also included prisoners. Once you understand the legal system, and in this case have a lot of time on your hands, you are more likely to sue.

What do you think? Leave a comment.

Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com

© 2010 James H. Moss


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Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17,226

Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17,226

Susan Burgad a/k/a Susan Hubbard, Plaintiff, -vs- Jack L. Marcus, Inc., Defendant.
Case No. A1-03-138
345 F. Supp. 2d 1036; 2004 U.S. Dist. LEXIS 24491; CCH Prod. Liab. Rep. P17,226
November 24, 2004, Decided
November 24, 2004, Filed
DISPOSITION: Defendant’s Motion for Summary Judgment granted.
COUNSEL: [**1] For SUSAN BURGAD AKA SUSAN HUBBARD, Plaintiff: Theresa L. Zimmerman, BISMARCK, ND.
For JL MARCUS, INC, Defendant: Patrick W. Durick, PEARCE & DURICK, BISMARCK, ND.
For JACK L MARCUS, INC., Defendant: Patrick W. Durick, Bonnie L. Christner, PEARCE & DURICK, BISMARCK, ND.
JUDGES: Daniel L. Hovland, Chief Judge United States District Judge.
OPINION BY: Daniel L. Hovland

Summary: The Plaintiff filed a complaint against a sports bra retailer for injuries sustained while wearing the product. The Plaintiff alleged failure to warn, negligence, and strict products liability. The Court granted the Defendant’s Motion for Summary Judgment based on the Plaintiff’s failure to show a breach of duty on the part of the Defendant, failure to show causation, and failure to show the sports bra was either defective or unreasonably dangerous as required by North Dakota law. The Court’s decision was based primarily on the Plaintiff’s lack of any expert testimony.

Before the Court is the Defendant’s Motion for Summary Judgment filed on August 30 2004. On November 1, 2004, the Plaintiff filed a response opposing the motion. For [**2] the following reasons, the motion is granted.
In July of 2001, the plaintiff, Susan Burgad, ordered a cotton/spandex sports bra from the defendant, Jack L. Marcus, Inc. (Marcus) catalog. The sports bra was shipped to Burgad on July 19, 2001. At that time Burgad was residing at the Missouri River Correctional Facility in Bismarck, North Dakota.
After receiving the sports bra, Burgad wore the bra outside without wearing a shirt. Burgad contends she exposed herself to the sun while wearing the sports bra without a shirt and was severely burned on both breasts. The record reveals that Burgad laid out in the sun while [*1038] wearing the black sports bra in temperatures exceeding 100 degrees. See Affidavit of Burgad, P 3. Burgad sustained three small burns on her right breast varying in size from 1-3 centimeters. She sustained three similar burns on her left breast varying from 1-2 centimeters. In December of 2003, Burgad filed an action in Burleigh County in North Dakota for negligence, product liability, and failure to warn. On December 29, 2003, Marcus removed the action under 28 U.S.C. § 1441 from Burleigh County to the United States [**3] District Court for the District of North Dakota.

[HN1] It is well-established that summary judgment is appropriate when, viewed in a light most favorable to the non-moving party, there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir. 1999). A fact is “material” if it might effect the outcome of the case and a factual dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
[HN2] The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996). The moving party has the initial burden of demonstrating to the Court that there are no genuine issues of material fact. If the moving party has met this burden, the non-moving party cannot simply [**4] rest on the mere denials or allegations in the pleadings. Instead, the non-moving party must set forth specific facts showing that there are genuine issues for trial. Fed.R.Civ.P. 56(e). A mere trace of evidence supporting the non-movant’s position is insufficient. Instead, the facts must generate evidence from which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

[HN3] The North Dakota Supreme Court has “recognized that negligence and strict liability in tort are separate and distinct theories of products liability and that each theory has a different focus.” Oanes v. Westgo, Inc., 476 N.W.2d 248, 253 (N.D. 1991) (citing Butz v. Werner, 438 N.W.2d 509 (N.D. 1989); Mauch v. Mfrs. Sales & Services, Inc., 345 N.W.2d 338 (N.D. 1984); Day v. General Motors Corp., 345 N.W.2d 349 (N.D. 1984)). Strict liability focuses on whether a product is defective and unreasonably dangerous, whereas negligence focuses on whether the manufacturer’s conduct falls below the standard of reasonable care. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 406 (N.D. 1994).

[HN4] In any negligence action the plaintiff has the burden of demonstrating (1) a duty, (2) a breach of that duty, (3) causation, and (4) damages. Investors Real Estate Trust Properties, Inc. v. Terra Pacific Midwest, Inc., 2004 ND 167, 686 N.W.2d 140, 144 (N.D. 2004). Burgad’s negligence claim appears to be based on two theories: negligent design and negligent failure to warn.
[HN5] In a negligent design claim, the manufacturer or seller is not liable absent proof that the product is defective. Oanes v. Westgo, Inc., 476 N.W.2d 248, 253 (N.D. 1991). Therefore, one element of a negligent design claim is that the product is defective or unsafe. The plaintiff must prove that the defendant failed to use reasonable [*1039] care in designing the product and that failure resulted in a defective product.
[HN6] The North Dakota Supreme Court has recognized a cause of action for “failure to warn” and has cited the principles set forth in Section 388 of the Restatement Second of Torts (1965), as summarizing the elements for negligent failure to warn. Collette v. Clausen, 2003 ND 129, 667 N.W.2d 617, 624 (N.D. 2003). That section provides as follows:
§ 388 [**6] Chattel Known to Be Dangerous for Intended Use
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Restatement (Second) of Torts § 388 (1965). The North Dakota Supreme Court held that by applying the principles of the Restatement, the court was not creating a new cause of action but merely clarifying existing basic negligence principles within the context of failure to warn. Collette, 2003 ND 129, 667 N.W.2d 617, 624 (citing Barsness v. General Diesel & Equip. Co., Inc., 383 N.W.2d 840, 845 (N.D. 1986)). [**7]
To support her claims, Burgad has submitted an “Analysis Report” completed by Chemir Analytical Services, a company based in Maryland Heights, Maryland. Chemir Analytical Services tested a sample of the sports bra worn by Burgad and a sample of an exemplar sports bra. The “Analysis Report” indicates the existence of different chemicals contained within the fabric of the sports bra. Burgad also submitted several Material Safety Data Sheets (MSDS) obtained over the Internet. The MSDS provide detailed information about chemicals, including toxicity and hazards associated with the particular chemical. Burgad then selected several of the chemicals found in the sports bras and submitted a MSDS for each chemical in an attempt to show negligence.
The basis for Burgad’s “failure to warn” claim is not clear from the pleadings. In her complaint she states that “the Defendant failed to warn the Plaintiff of the risks involved in exposing the bra to sunlight.” Complaint, P 21. A seemingly unrelated contention appears in Burgad’s brief: “There were no warnings that the bra should be laundered prior to use.” Yet another contention is that there were “no warnings of the existence of such chemicals [**8] or their potential for irritation or burning of the skin.” The alleged design defect appears to be that the bra contained certain chemicals which individually or in combination caused the burning.
However, Burgad’s claims of negligence appear to have several flaws. Most notably, under both theories, Burgad is required to prove negligence and that such negligence was the proximate cause of her injuries. The “Analysis Report” prepared by Chemir Analytical Services does not address the issues of duty, breach of duty, or causation. In order to circumvent the need to establish causation, Burgad contends that the doctrine of res ipsa loquitur should apply.
[*1040] The North Dakota Supreme Court has provided insight into the doctrine of res ipsa loquitur:
[HN7] Although labeled a doctrine, res ipsa loquitur is not a rule of substantive law but is a principle of evidence. Negligence must be affirmatively proved, and will not be presumed merely from the occurrence of the accident or damages. However, negligence may be proved by circumstantial evidence, and the res ipsa doctrine is a form of circumstantial evidence.
Robert v. Aircraft Investment Co., Inc., 1998 ND 62, 575 N.W.2d 672, 674 (N.D. 1998). [**9] The Supreme Court also explained how the doctrine operates:
[HN8] As applied in this State, res ipsa loquitur allows the fact-finder to draw an inference that the defendant’s conduct was negligent if the following foundational fact are provided: (1) the accident was one which does not ordinarily occur in the absence of negligence; (2) the instrumentality which caused the injury was in the exclusive control of the defendant; and (3) there was no voluntary action or contribution on the part of the plaintiff.
Id. A plain reading of the doctrine reveals that Burgad’s reliance upon the doctrine of res ipsa loquitur is misplaced. The instrumentality that allegedly caused the injuries (the sports bra) was not in Marcus’s exclusive control. In addition, the accident is not one which does not ordinarily occur in the absence of negligence. It is also unclear whether the actions of Burgad may have contributed in some manner to cause the injuries, namely, sunbathing in a black sports bra in temperatures exceeding 100 degrees. In summary, the doctrine of res ipsa loquitor does not operate in Burgad’s favor.
The record also reveals that Burgad is unable to establish and prove there [**10] was a breach of any standard of care, or that a design defect existed, due to the failure to retain an expert witness. Marcus correctly cites the Eighth Circuit case of Dancy v. Hyster Co., 127 F.3d 649 (8th Cir. 1997), to support the proposition that expert testimony is required to set forth a claim of negligence in a products liability action. In Dancy, the plaintiff filed an action against a lift truck manufacturer for negligence and strict liability. After striking the plaintiff’s expert under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), the district court granted the defendant’s motion for summary judgment on both claims and held that the plaintiff could not prevail without expert testimony. Drawing upon Arkansas case law, the Eighth Circuit held that “absent expert testimony, there is no basis for the jury to evaluate the actions of an ordinarily prudent person.” Id. at 654; (citing Skinner v. R.J. Griffin & Co., 313 Ark. 430, 855 S.W.2d 913, 915 (Ark. 1993)): see Anderson v. Raymond Corp., 340 F.3d 520, 524-25 (8th Cir. 2003) (reaching the same decision and upholding summary judgment [**11] for claims of negligence, strict liability, and failure to warn due to lack of expert testimony under Arkansas law); Erling v. American Allsafe Company, 2000 U.S. App. LEXIS 22473, No. 99-3403, 2000 WL 1247863, *1-2 (8th Cir. Sept. 5, 2000) (upholding summary judgment as to negligent failure to warn, negligent design, and strict liability claims due to lack of expert testimony under North Dakota law).
[*1041] It is undisputed that no witness, other than Burgad, has stated that Marcus breached any standard of care, failed to exercise reasonable care in the design and manufacture of the sports bra, or that the sports bra was defective, unsafe, or unreasonably dangerous. No witness, other than Burgad, has established a causal connection between any alleged design defect and the injuries sustained by Burgad. Following Eighth Circuit precedent, Burgad’s claims of negligence are unable to survive summary judgment due to the lack of any expert testimony to support such claims. The Court finds that there are no genuine issues of material fact for a jury to resolve regarding the claims of negligence.

The North Dakota Supreme Court has also described the necessary elements for [**12] strict products liability:
[HN9] In order to recover for injuries sustained as a result of a defective condition in a product, unreasonably dangerous to a consumer, the plaintiff must show by a preponderance of the evidence the product was defective in design or manufacture; the defect rendered the product unreasonably dangerous to the consumer; the defect existed when the product left the manufacturer; and the defect was a proximate cause of the plaintiff’s injuries.
Enderson v. Scheels Hardware and Sports Shop, Inc., 1997 ND 38, 560 N.W.2d 225, 228 (N.D. 1997) (citing Kaufman v. Meditec, Inc., 353 N.W.2d 297, 300 (N.D. 1984)). The North Dakota Century Code defines and clarifies these elements:
[HN10] No product may be considered to have a defect or to be in a defective condition, unless at the time the product was sold by the manufacturer or other initial seller, there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer
N.D. Cent. Code § 28-01.3-06. Section 28-01.3-01(3) of the North Dakota Century Code provides the definition of “unreasonably dangerous:”
[HN11] “Unreasonably dangerous” [**13] means that the product is dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer, or user of that product in that community considering the product’s characteristics, propensities, risks, dangers, and uses, together with any actual knowledge, training, or experience possessed by the particular buyer, user or consumer.
[HN12] Under North Dakota law, “a plaintiff cannot prevail simply by proving a product’s defect and causation of the injury which the plaintiff suffered.” Reagan v. Hi-Speed Checkweigher Co., Inc., 30 F.3d 947, 948 (8th Cir. 1994) (citing Kaufman v. Meditec, Inc., 353 N.W.2d 297, 301 (N.D. 1984)) (quotations omitted). The plaintiff must also prove that the product was unreasonably dangerous based on its condition at the time it left the manufacturer. The mere fact that an accident or incident occurred, standing alone, does not support a claim that a product was defective. As a general rule, a plaintiff is required to prove a product defect through an expert witness.
The Court finds that Burgad’s strict liability claims suffer a similar fate as the claims of negligence. [HN13] It is well-established [**14] that expert testimony is needed to prevail on a strict liability claim. See Dancy v. Hyster Co., 127 F.3d 649 (8th Cir. 1997). As previously noted, Burgad has made no showing that the sports bra was defective in design or manufacturer; that any such defect rendered the sports bra unreasonably dangerous to the user or consumer; that the defect existed when the sports bra left the manufacturer; or that the defect was a proximate cause of [*1042] the plaintiff’s injuries. In the absence of any expert testimony to establish the critical elements of a strict liability claim, the claim must fail. Merely submitting a series of Material Safety Data Sheets (MSDS), standing alone, will not meet the minimal burden of proof nor create a factual dispute for the jury to resolve at trial. A mere statement in a MSDS which notes that a certain chemical has the capacity to cause injury is not sufficient to create a jury question. The effects of exposure to any chemical or hazardous substance will always be dependent upon the dose, the duration of exposure, the method and manner of exposure, personal traits and habits, and the presence of other chemicals, toxic or otherwise. Many of the chemicals [**15] identified in the “Analysis Report” from Chemir Analytical Services are chemicals commonly found in clothing and many other consumer goods. The mere presence of chemicals in a piece of clothing such as a sports bra, or the fact such chemicals may have the potential to cause injury or illness, is not sufficient, by itself, to establish liability or causation in a products liability action.

The Defendant Jack L. Marcus’ Motion for Summary Judgment (Docket No. 18) is GRANTED.

Dated this 24 day of November, 2004.
Daniel L. Hovland, Chief Judge
United States District Court

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