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holding that the trial court did not abuse its discretion in admitting evidence of prior ski accidents for the limited purpose of notice
Summary of this case from Kolosnitsyn v. Crystal Mountain, Inc.Opinion
No. 60211-0-I.
October 20, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-13652-9, Laura C. Inveen, J., entered May 31, 2007.
Affirmed by unpublished opinion per Lau, J., concurred in by Cox and Appelwick, JJ.
While attempting a terrain park ski jump at a ski area, Kenneth Salvini was severely injured. Salvini and his parents brought a negligence action against the owner-operator Ski Lifts, Inc. The jury found Salvini 55 percent responsible and Ski Lifts 45 percent responsible. Ski Lifts appeals, arguing that the trial court improperly instructed the jury on duty, inherent risk, and signage, and that it admitted prejudicial and irrelevant evidence of prior accidents. We conclude that the jury instructions were proper and that the trial court did not abuse its discretion in admitting evidence of prior accidents for the limited purpose of notice. Accordingly, we affirm.
FACTS
Ski Lifts owns and operates Snoqualmie, a ski area that features downhill skiing and a terrain park filled with artificial jumps and structures. Among these features are "table top" jumps, which have a takeoff ramp, a flat deck section, and a landing slope. To jump a table top successfully, a skier must approach the takeoff ramp with sufficient speed to launch into the air and clear the deck while maintaining enough control to land upright on the landing slope. "Overshooting" occurs when the skier lands past the end of the landing slope.
At approximately 7 p.m. on February 11, 2004, Kenneth Salvini arrived at Snoqualmie with his father and some friends. It was night, and the snow was rough, icy, and hard. After spending about an hour skiing at the Alpental downhill area, the main ski lift broke down. They then moved to the Summit Central downhill area. Salvini and a friend took a lift to the top of the mountain and skied over to the terrain park. A message hand written in light blue pen on a whiteboard sign posted near the lift read, "Terrain park Tip of the Week: Most injuries in the terrain park are as a result of the rider out-jumping the landing. Thanks, your friendly Ski Patrol." Ex. 7. A Ski Lifts employee testified that the message was posted following several overshooting incidents. But Salvini and his friend did not see the sign.
Salvini, an experienced skier, decided to try a table top jump in the lower part of the terrain park — one that he had successfully jumped while skiing the previous week. Salvini testified that his goal was to approach the jump with "enough speed to make sure [he] cleared the deck." Verbatim Report of Proceedings (VRP) (Mar. 22, 2007) at 83. Ski Lifts asserted that Salvini approached the jump at an excessively high speed, but Salvini presented evidence that his speed was within the range expected at a ski jump. He lost control, rotated backwards, "overshot" the landing ramp, and landed on his back onto a flat or nearly flat area. Salvini is now a quadriplegic.
Salvini and his parents filed a negligence action against Ski Lifts, alleging that it designed and built an unreasonably dangerous ski jump and that it failed to close the jump or to warn of its dangers, thereby exposing him to an extreme risk of serious injury beyond the risks inherent in the sport. Ski Lifts asserted that it was not negligent and that Salvini's injuries were solely the result of the inherent risks of the sport and Salvini's own negligence.
Ski Lifts filed a motion in limine to exclude evidence of prior accidents at the terrain park. Salvini responded with a motion to admit 66 prior incident reports. After reviewing the incident reports, the trial court admitted 15 reports for "the limited issue of notice" but excluded the remainder because they were not substantially similar. Clerk's Papers (CP) at 2632-35. At Ski Lifts' request, the trial court instructed the jury that the reports were admitted "for the limited purpose of showing that defendant had notice that people had overshot the landing of the jump on which the plaintiff was injured." CP at 2672.
The court originally admitted 16 incident reports, but this was later reduced to 15.
The jury found Salvini 55 percent at fault and Ski Lifts 45 percent at fault. The jury also found that Salvini had suffered approximately $30 million in damages, resulting in a judgment against Ski Lifts of approximately $14 million. The trial court denied Ski Lifts' motion for a new trial. Ski Lifts now appeals.
ANALYSIS
Jury Instruction on Inherent Risk
Ski Lifts argues that the trial court erred in refusing to give its proposed jury instruction. The instruction stated: "An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport." CP at 2578. Alleged errors of law in jury instructions are reviewed de novo. Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 266, 96 P.3d 386 (2004). Whether to give a particular jury instruction, however, is within the trial court's discretion. Boeing Co. v. Key, 101 Wn. App. 629, 632, 5 P.3d 16 (2000). "Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied." Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). "The trial court is given considerable discretion in deciding how the instructions will be worded." Goodman v. Boeing Co., 75 Wn. App. 60, 73, 877 P.2d 703 (1994), aff'd, 127 Wn.2d 1020, 890 P.2d 463 (1995).
Chapter 79A.45 RCW generally sets forth the responsibilities of skiers and ski area operators. The statute "modifies, but is generally consistent with, the common law." Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 397, 725 P.2d 1008 (1986). It provides that "[b]ecause of the inherent risks in the sport of skiing all persons using the ski hill shall exercise reasonable care for their own safety." RCW 79A.45.030 (6). "A defendant simply does not have a duty to protect a sports participant from dangers which are an inherent and normal part of a sport." Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 500, 834 P.2d 6 (1992). But "[a]lthough the statute imposes both primary and secondary duties on skiers, it `does not purport to relieve ski operators from all liability for their own negligence.'" Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 524, 984 P.2d 448 (1999) (quoting Scott, 119 Wn.2d at 500). Risks caused by negligent provision of dangerous facilities are not "inherent" in a sport. Scott, 119 Wn.2d at 498.
Nothing in the statute specifically addresses terrain park ski jumping.
Washington's ski statute does not define "inherent risk." The language of Ski Lifts' proposed instruction is drawn from an intermediate California appellate court decision, Vine v. Bear Valley Ski Co., 118 Cal. App. 4th 577, 13 Cal. Rptr. 3d 370 (2004). In Vine, a snowboarder who was seriously injured on a terrain park ski jump brought a negligence action against the ski area. The ski operator, arguing that it owed no duty to protect Vine against inherent risks, requested the following instruction on assumption of risk:
In contrast, some states have enacted ski safety statutes that define "inherent risks" and/or "inherent danger" of skiing with particularity. See, e.g., Colo. Rev. Stat. Ann. § 33-44-103(3.5) (West); Mich. Comp. Laws Ann. 408.342(2) (LexisNexis); 32 Me. Rev. Stat. Ann § 15217.
"The defendant has no duty to eliminate, reduce or make safer the
inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted. An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport.
"The defendant is under a duty to use ordinary care not to increase the risks to a snowboarder over and above those inherent in the sport. The defendant is under a duty to refrain from constructing a jump for use by the public which, by design, poses an extreme risk of injury.
"A failure to fulfill such duty is negligence."
Id. at 594 n. 5.
The trial court ruled that the primary assumption of risk doctrine did not apply because snowboarding does not inherently require jumps that are designed in such a way as to create an extreme risk of injury. Id. at 590. Thus, the court instructed the jury on ordinary negligence and contributory negligence but not on assumption of the risk. Id. at 595-97, 603.
The California appellate court held that the instructions were erroneous regarding the duty of care owed by the ski operator.
Nowhere was the jury informed that Bear Valley owed Vine no duty to protect her from the risks inherent in snowboard jumping. Indeed, the instructions suggested just the opposite, since it was obviously foreseeable that the inherent risks of riding a snowboard over the jump built by Bear Valley might result in injury.
Id. at 596. The court reasoned, "It is fundamentally unfair for a snowboarding injury case to go to a jury without any instruction on assumption of the risk." Id. at 603.
Ski Lifts argues that under the reasoning of Vine, the trial court's failure to give Ski Lifts' proposed jury instruction defining the inherent risks of terrain park jumping deprived it of the ability to argue that the risks that caused Salvini's accident were inherent in the sport and that he was responsible for his own injury. Salvini contends that the jury instructions given by the trial court were an accurate statement of the law and that Ski Lifts' proposed additional instruction was unnecessary for Ski Lifts to argue its theory of the case.
We disagree with Ski Lifts. In Vine, the trial court declined to instruct the jury on the inherent risks of the sport, which erroneously precluded the jury from considering assumption of the risk. Here, in contrast, the trial court did instruct the jury on Salvini's assumption of the risks that are an inherent and normal part of terrain park jumping. Instruction 16 stated,
A skier jumping in a terrain park assumes the dangers that are inherent in the sport of terrain park jumping. The ski area has no duty to protect a skier from dangers that are an inherent and normal part of jumping in a terrain park.
The ski area has a duty not to unduly enhance the risk of jumping in a terrain park beyond the risks inherent in the sport.
CP at 2674.
Instruction 16 properly informed the jury of Washington law, was not misleading, and permitted Ski Lifts to argue that the conditions and risks that caused Salvini's injuries were an inherent and normal part of the sport. During closing statements, Ski Lifts argued to the jury:
Salvini argues that Ski Lifts failed to preserve any error on inherent risks of ski jumping because it proposed and received instruction 16, which was a correct statement of the law. We disagree. Ski Lifts specifically took exception below to the trial court's refusal to give an additional proposed definition of "inherent risk," which it now contends was necessary for the jury to understand that phrase. This was sufficient to preserve the issue for appellate review under CR 51(f).
So what do we need to know in order to decide what is an inherent part of this sport? And what we know and what everybody has talked about is jumping is a fundamental activity, that's what it is about. . . .
. . . Jumps are not safe, because `safe' means free from injury or danger, free from risk, and we have to start out with the premise that this is an inherently dangerous activity; it is not free from risk. You can't design out the risk, that's part of jumping. . . .
. . . Talking about landing on your feet, landing on your landing gear, and absorbing the shock of a jump. That's inherent in jumping, and that's what is most important. . . .
. . . Two inherent dangers, everyone talked about it, losing control and falling. Those are things that come along with the sport.
. . . What we have to look at is what's normal of [sic] this sport, and that the jumpers have the responsibility, they can choose their speed, depending on what they want to do. . . . And that's why there is no starting point. That's not a decision the ski area is making . . ., it is a decision the skier needs to make for themselves.
. . . .
The jump itself. Again, we talk first about what is normal to the sport. And the people who build the jump are telling you this is what's normal for the sport. This is what all of the ski areas are doing, this is how the jumps are built. . . .
We have some other things that factor in to this particular table top and the choices that are available. And this is all part of what is normal in the sport. We have the jump itself, we have the two different landings, we have the half pipe off to the right, we have other jumps below, two take offs on that jump, and lots of room to go around on either side. . . . And those are things that we don't have a duty to change because that's an inherent and normal part of the sport. . . .
. . . .
. . . Because "normal" for a ski area includes people going to the first aid room for a whole variety of reasons, not to minimize it. But to say it is a risky sport and accidents happen, and you have to get back to the first part of our instruction, which is, there are inherent dangers. . . . And they are athletes and they are human and they did something different, and it ended up in injury. And nobody wants that to happen, but we can't take that away and still have the sport, because what we have is something that is inherently dangerous and people are doing it because they want to. . . .
. . . .
. . . But what we know is that at the end of the day, it was not the ski area that caused the accident, it was the behavior of the jumper. And not in a critical way, because this is what is part of the sport. And that's why it is an inherent risk, because it is very dangerous. And it starts out that way. And the ski area did not do anything to increase that danger. It is a normal jump and it is a normal activity. . . . The people that developed it told you what it was about, and the skier assumes the dangers that are inherent in the sport, and assumes what is part of the normal sport. Not a different sport, but this sport. And we don't have a duty to make it a different sport. . . . What is this sport about? It is about the risk of falling and being injured. It is about speed and control and snow conditions and choices. And that's all a normal part of the sport.
VRP (Apr. 4, 2007) at 6-46.
"Whether to define a phrase is a matter of judgment to be exercised by the trial court." Goodman, 75 Wn. App. at 76. Under the instructions given, Ski Lifts could and did define the inherent and normal risks very broadly in crafting its argument to the jury. Ski Lifts' additional instruction defining "inherent risk" was unnecessary and superfluous. And when applied to this case, the definition is self-evident and obvious. The jury attributed 55 percent of the fault for the accident to inherent risk and Salvini's own negligence. It is entirely speculative to conclude that the jury did not understand "inherent risk" or that the verdict would have been different if Ski Lifts' proposed instruction had been given. The trial court did not abuse its discretion in refusing to give a proposed instruction derived from California common law that was unnecessary to allow Ski Lifts to fully argue its theory of the case.
See Goodman, 75 Wn. App. at 76 (upholding trial court's refusal to give a jury instruction defining the phrase "continuing violation" where the definition was self-evident and obvious when applied to facts of case).
In the special verdict form, the jury answered, "Yes" to the following question: "Was one or more of the inherent risks of jumping in a terrain park a proximate cause of plaintiff's injuries?"
Jury Instruction on Duty to Discover Dangerous Conditions
Ski Lifts argues that instruction 15 misstated the duty owed by a ski area operator regarding the discovery and elimination of dangers, thereby erroneously holding Ski Lifts to an improperly broad duty to protect Salvini.
Instruction 15 stated,
The operator of a ski area owes its customers a duty to exercise ordinary care. This includes the exercise of ordinary care to provide reasonably safe facilities and to maintain in a reasonably safe condition those portions of the premises that such person is expressly or impliedly invited to use or might reasonably be expected to use. The operator of a ski area owes a duty to its customers to discover dangerous conditions through reasonable inspection, and repair that condition or warn the skier unless it is known or obvious.
CP at 2673. (Emphasis added.)
Ski Lifts objects only to the final, italicized sentence of the instruction, which was added at Salvini's request over Ski Lifts' objection. This sentence was drawn directly from the Scott decision, which describes the duty of care for ski area operators. "A skier is a business invitee of a ski area operator. The operator owes a duty to a skier to discover dangerous conditions through reasonable inspection, and repair that condition or warn the invitees, unless it is known or obvious." Scott, 119 Wn.2d at 500 (footnotes omitted). The Scott court further specified, "[T]he plaintiff assumes the dangers that are inherent in and necessary to the particular sport or activity" and that "[w]hile participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts which unduly enhance such risks." Id. at 501 (third emphasis added).
Ski Lifts argues that instruction 15 misstated Washington law by failing to reference "unreasonably" dangerous conditions. Salvini contends that Ski Lifts failed to preserve this argument because it did not propose inserting the word "unreasonably" into the instruction. But Ski Lifts did object to instruction 15 on the ground that "the law would indicate that we don't have a duty unless it is unreasonably dangerous. So I believe that the dicta from Scott that has been added to the WPIC instruction is not appropriate." VRP (Apr. 3, 2007 p.m.) at 11. Accordingly, Ski Lifts' proposed instruction was essentially the same as instruction 15, but without the final sentence taken from Scott. This sufficiently informed the trial court of the point of law in dispute to preserve for appellate review the issue of whether instruction 15 properly stated the duty owed by ski operators to skiers. Falk v. Keene Corp., 113 Wn.2d 645, 657-58, 782 P.2d 974 (1989). CR 51(f) does not require a party to additionally propose an alternative instruction under similar circumstances. Joyce v. State Dep't of Corrections, 155 Wn.2d 306, 324-25, 119 P.3d 825 (2005).
Ski Lifts argues that the final sentence of instruction 15 misstated the duty of care for providers of an inherently dangerous activity such as terrain park ski jumping because, unlike Scott, it failed to specify that the duty was limited only to "unreasonably" dangerous conditions — those that "unduly enhance" the inherent risks. According to Ski Lifts, the omission of the word "unreasonably" from the jury instruction mistakenly informed the jury that Ski Lifts' legal duty was to eliminate all dangers to terrain park ski jumpers — a standard that is impossible to meet. Ski Lifts further contends that instruction 16 was insufficient to cure the defect in instruction 15 regarding Ski Lifts' duty of care for three reasons. First, it is not clear that the "unduly enhance" language of instruction 16 operates to limit instruction 15's reference to "dangerous conditions." Second, it was contradictory and confusing to instruct the jury that Ski Lifts was responsible for "dangerous conditions" (instruction 15) while also instructing it that Salvini assumed the dangers inherent in terrain jumping (instruction 16). Third, under the reasoning of Vine, the jury could not determine comparative fault without an instruction specifically defining the inherent risks assumed by Salvini.
We disagree with Ski Lifts and hold that instructions 15 and 16 properly instructed the jury on Washington law. "The court need not include specific language in a jury instruction, so long as the instructions as a whole correctly state the law." Boeing Co. v. Key, 101 Wn. App. 629, 633, 5 P.3d 16 (2000).
Instruction 15 accurately summarized the well-established duty of care owed by ski area operators to skiers. Washingtoncourts have adopted with approval the Restatement (Second) of Torts § 343 (1965), which sets forth the duties a possessor of land owes to an invitee. Iwai v. State, 129 Wn.2d 84, 95, 915 P.2d 1089 (1996). Section 343 states,
Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The ski operator owes an affirmative duty of care to the skier, as a business invitee, to discover dangerous conditions through reasonable inspection and repair them or warn the invitees of the hazard unless it is known or obvious. See, e.g., Scott, 119 Wn.2d at 500; Brown, 97 Wn. App. at 524; Codd, 45 Wn. App. 396-97. Consistent with this standard, instruction 15 also stated that the ski area operator's duty is to provide "reasonably safe facilities" and to maintain them in a "reasonably safe condition." Furthermore, instruction 16 — to which Ski Lifts did not object — specified that a ski area has no duty to protect against "dangers that are an inherent and normal part of jumping in a terrain park" and that "[t]he ski area has a duty not to unduly enhance the risk of jumping in a terrain park beyond the risks inherent in the sport."
Together, these instructions accurately summarized the law, allowed Ski Lifts to argue its theory of the case, and were not contradictory, confusing, or misleading. Ski Lifts could, and did, argue that the risks of the jump were known and obvious. Ski Lifts could, and did, argue that Salvini's injuries resulted from the inherent risks of the sport. And the trial court gave an instruction on comparative fault to which Ski Lifts did not object. As discussed above, Ski Lifts' proposed instruction defining "inherent risk" was unnecessary to allow Ski Lifts to fully argue all of its claims. The trial court did not abuse its discretion in refusing to omit the final sentence from instruction 15.
Jury Instruction on Failure to Warn
Ski Lifts argues that Salvini offered no evidence of proximate cause to support his claim that Ski Lifts was liable on a failure to warn theory. Instruction 15 informed the jury that Ski Lifts had a duty to "discover dangerous conditions through reasonable inspection, and repair that condition or warn the skier unless it is known or obvious." Instruction 17 stated, "A statute relating to ski areas provides: All signs for instruction of the public shall be bold in design with wording short, simple, and to the point. All such signs shall be prominently placed." Relying primarily on products liability cases, Ski Lifts contends that proof of proximate cause on a failure to warn theory requires the plaintiff to show that he would have read and heeded an adequate warning. Because instructions 15 and 17 invited the jury to find Ski Lifts liable for failure to warn in the absence of evidence that Salvini would have behaved differently had he received better warnings, Ski Lifts contends that there was insufficient evidence to support these instructions. We disagree.
We also note that during closing arguments, Ski Lifts did not contend that Salvini had failed to provide sufficient evidence of proximate cause on a failure to warn theory.
As a preliminary matter, we note that Ski Lifts objected to the final sentence of instruction 15 on the ground that it misstated the premises liability standard of care for ski area operators. But it did not object to instruction 15 on the ground that it erroneously instructed the jury on a failure-to-warn theory. Nor did Ski Lifts mention instruction 15 when it objected to instruction 17 on the ground that there was no evidence of proximate cause to support it. CR 51(f) requires that counsel state distinctly the matter to which he objects and the grounds for that objection so that the court may correct any error before instructing the jury. Because Ski Lifts did not apprise the trial court of the point of law in dispute, it waived any claimed error regarding instruction 15 or its interplay with instruction 17 in the context of this argument. Falk v. Keene Corp., 113 Wn.2d 645, 657-58, 782 P.2d 974 (1989).
Ski Lifts' argument misconstrues the purpose of instruction 17 in this premises liability case. Salvini claimed that Ski Lifts "was negligent in the design, construction, and maintenance of the terrain park jump on which [he] was injured." CP at 2960 (instruction 2). To establish an action for negligence, a plaintiff must show (1) the existence of a duty, (2) breach of that duty, (3) a resulting injury, and (4) proximate cause. Iwai, 129 Wn.2d at 96. In premises liability cases, a landowner's duty of care is governed by the entrant's common law status as an invitee, licensee, or trespasser. Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 128, 875 P.2d 621 (1994). Here, the parties do not dispute that Salvini was a business invitee of Ski Lifts.
"The duty owed by the possessor to the invitee derives from the entrant's expectation that the possessor has exercised due care to make the premises reasonably safe." The Law of Premises Liability (3d ed.) § 4.1, at 75 (2001). This duty may be fulfilled by an appropriate warning or other affirmative action to remedy the danger. Id. "An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein." Restatement (Second) of Torts § 343, cmt. d (1965).
Salvini contended that Ski Lifts was negligent under this common law premises liability standard. And Ski Lifts could satisfy its duty to protect its customers from unreasonably dangerous conditions by providing adequate warnings. Instruction 17 went directly to Ski Lifts' defense that it had met this duty. This instruction properly allowed the jury to evaluate the reasonableness of the warnings provided in light of the statutory signage requirements and the degree to which Salvini was comparatively at fault for failing to see the whiteboard sign.
Both parties presented evidence at trial regarding the reasonableness and adequacy of the warning signs. Expert witnesses Dr. Richard Gill and Richard Penniman testified extensively regarding the inadequacy of Ski Lifts' warning signs. Salvini testified that he did not see the whiteboard sign. Salvini's skiing companion and Salvini's father, as well as several Ski Lifts employees, also testified that they did not see the sign. Expert witnesses Helge Lien and Richard Penniman testified that Ski Lifts should have designated a starting point for the jump to prevent skiers from gaining too much speed and overshooting the jump. Salvini argued in closing that the jump was not reasonably safe and that the signage failed to warn of the specific hazard known to Ski Lifts. He did not contend that Ski Lifts was additionally liable on a separate failure-to-warn theory.
Ski Lifts introduced photographs of its warning signs into evidence, and the photos were shown to the jury. Ski Lifts employees Dan Brewster and Bryan Picard testified regarding the location and content of the warning signs. Ski Lifts' expert witness Elia Hamilton testified that the warning signs at the entrance of the terrain park were "absolutely" appropriate. Ski Lifts relied on the signage evidence to argue in closing that Salvini was adequately warned. Ski Lifts also argued that it had no duty to post signs designating a starting point because that choice is part of the skier's responsibility. "`[P]rejudicial error occurs where the jury is instructed on an issue that lacks substantial evidence to support it.'" Manzanares v. Playhouse Corp., 25 Wn. App. 905, 910, 611 P.2d 797 (1980) (quoting Haynes v. Moore, 14 Wn. App. 668, 672, 545 P.2d 28 (1975)). There was ample evidence to support giving instruction 17.
Bryan Picard was employed by Ski Lifts at the time of Salvini's accident, but no longer employed by Ski Lifts at the time of trial.
"Another part of the responsibility code, observe all posted signs and warnings. The information is there. We can't make people read signs, we can't make people do anything, these are choices. But the signs are there, and this is part of the skiers' responsibility." VRP (Apr. 4, 2007 a.m.) at 9.
To the extent Ski Lifts contends that instruction 15 in combination with instruction 17 presented a separate inadequate warning theory of liability, Ski Lifts' failure to request a clarifying special verdict form requiring the jury to indicate which theories of liability the jury relied upon precludes it from raising such an argument on appeal. See Davis v. Microsoft Corp., 149 Wn.2d 521, 539-40, 70 P.3d 126 (2003).
Ski Lifts further contends that it had no duty to warn Salvini because he had used the jump before and was fully aware of its condition. This argument is not persuasive. Salvini's previous use of the jump would not necessarily put him on notice that its design could increase the risk of severe injury from overshooting. Whether the jump's deficiencies were "known and obvious" and whether Salvini should have anticipated the harm is a question of fact for the jury. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 54, 914 P.2d 728 (1996). The jury instructions properly allowed Ski Lifts to argue that the alleged defect was known or obvious, while also allowing Salvini to argue that it was not.
Evidence of Prior Accidents
Ski Lifts argues that the trial court abused its discretion in admitting evidence and testimony regarding 15 prior incidents of overshooting the same jump at which Salvini was injured. The court ruled that these incident reports were not admissible "as substantive evidence of the existence of a dangerous condition," but that they were sufficiently similar "to put Ski Lifts on notice of a potential defect to warrant further inquiry into the design of the jump, or the reasonableness of the signage in light of the multiple injuries caused as a result of overshooting the landing of the jump in question." CP at 2635. Ski Lifts moved the court for a limiting instruction on the admission of prior incident reports. The trial court granted Ski Lifts' motion and gave a limiting instruction.
Exhibits 154, 155, 160, 161, 163, 165, 166, 167, 170, 171, 172, 173, 174, 175 and 176 are accident reports. These accident reports have been admitted into evidence for the limited purpose of showing that defendant had notice that people had overshot the landing of the jump on which the plaintiff was injured. You are not to infer anything beyond notice by admission of these prior accidents.
CP at 2672 (instruction 14).
"A trial court's decision admitting or excluding evidence is reviewed for an abuse of discretion, which occurs only when the exercise of discretion is manifestly unreasonable or based on untenable grounds or reasons." Kimball v. Otis Elevator Co., 89 Wn. App. 169, 172-73, 947 P.2d 1275 (1997).
In a negligence case, other accidents and injuries are inadmissible to show a general lack of care or negligence, but may be admissible on other, more limited issues if the conditions are sufficiently similar and the actions are sufficiently numerous. 5 Karl B. Tegland, Washington Practice: Evidence § 402.11, at 304 (2007) (citing Panitz v. Orange, 10 Wn. App. 317, 322, 518 P.2d 726 (1973)). Evidence of prior accidents which occurred under substantially similar circumstances is admissible for the purpose of demonstrating a dangerous condition or notice of a defect. Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984). Turner v. City of Tacoma, 72 Wn.2d 1029, 1036, 435 P.2d 927 (1967).
Some courts have recently relaxed the substantial similarity requirement when the evidence is offered for the purpose of showing notice. 5 Tegland, supra, § 402.11 (Supp. 2008).
The admitted reports need not be identical, only substantially similar. See, e.g., Seay v. Chrysler Corp., 93 Wn.2d 319, 324, 609 P.2d 1382 (1980) (upholding admission of evidence of other accidents involving same type of car chassis); Blood v. Allied Stores Corp., 62 Wn.2d 187, 189, 381 P.2d 742 (1963) (upholding exclusion of reports that showed "no similarity"); Miller v. Staton, 58 Wn.2d 879, 884-85, 365 P.2d 333 (1961) (upholding admission of evidence of previous fights in a tavern); O'Dell v. Chi., Milwaukee, St. Paul Pac. R.R., 6 Wn. App. 817, 826, 496 P.2d 519 (1972) (upholding admission of evidence of other near-accidents at same railroad crossing).
Ski Lifts first argues that Salvini failed to establish that the prior incidents were substantially similar to his situation because 13 of the 15 incident reports involved snowboarders, not skiers, and because the two reports involving skiers occurred under different conditions. We disagree. The trial court rejected most of the 66 incident reports offered by Salvini because it found that they were not sufficiently similar, and it admitted only "[t]hose accident reports documenting an injury occurring as a result of overshooting the jump in question, on either skis or snowboards (which go slower than skis.). . . ." CP at 2635. If overshooting was a problem for slower moving snowboarders, it is reasonable to expect it to be a problem for skiers as well. Admitting evidence of prior accidents that occurred at the same table top jump, whether they involved skiers or snowboarders, was not an abuse of discretion.
Ski Lifts argues that the trial court's limiting instruction was a confusing and meaningless restriction on the use of the evidence. But Ski Lifts did not assign error to this limiting instruction and has therefore waived any objection to it. Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 281, 96 P.3d 386 (2004). Indeed, Ski Lifts asked the court to read the limiting instruction immediately before the prior incident evidence was presented to the jury and to include it among the court's instructions to the jury. The court granted both requests.
Ski Lifts appears to challenge both the giving and the language of the limiting instruction. "A limiting instruction is available as a matter of right. If evidence is admissible only for a limited purpose and an appropriate limiting instruction is requested, the court may not refuse to give the instruction." 5 Tegland, supra, § 105.2 (2007) (interpreting ER 105).
The limiting instruction requested and proposed by Ski Lifts contained a final sentence stating, "You are not to infer from these accident reports that the defendant was negligent." CP at 2637. Salvini requested that the court remove that sentence and replace it with, "[Y]ou are not to infer anything beyond notice by admission of these prior accidents." 1 Transcript of Proceedings (TR) (Mar. 12, 2007) at 28. The trial court agreed with Salvini and modified Ski Lifts' proposed instruction accordingly. Ski Lifts did not object.
Ski Lifts argues that the prior incidents should not have been admitted for the purpose of notice, because it conceded that it was aware of overshooting incidents. "Evidence of similar accidents is inadmissible to prove notice, if there is no question that there was notice, or if notice is not a disputed issue in the case." 5 Tegland, supra, at 306 (citing Hinkel v. Weyerhaeuser Co., 6 Wn. App. 548, 555-56, 494 P.2d 1008 (1972)); Porter v. Chicago, M., P. P.R. Co., 41 Wn.2d 836, 842, 252 P.2d 306 (1953). We disagree.
[T]he fact that evidence is undisputed does not, alone, make the evidence inadmissible. Undisputed evidence may be valuable background information or other information that the jury, in fairness, ought to hear.
Thus, as a general rule, a party cannot frustrate the introduction of evidence by offering to stipulate to the underlying facts.
5 Tegland, supra, at 469. See, e.g., State v. Pirtle, 127 Wn.2d 628, 652, 904 P.2d 245 (1995); State v. Rice, 110 Wn.2d 577, 598-99, 757 P.2d 889 (1988); the plaintiff is not bound to stipulate to the issue unless its probative value is substantially outweighed by unfair prejudice. Pirtle, 127 Wn.2d at 653.
The issue in this case went beyond the mere fact that Ski Lifts had notice of overshooting. The prior incident reports were probative of the extent and nature of the notice, which went directly to the question of whether Ski Lifts met its duty of care based on what it knew. Salvini is not categorically bound from introducing evidence of substantially similar prior overshooting incidents merely because Ski Lifts admitted it knew that they were occurring.
Ski Lifts also contends that the evidence was not probative of notice of a design defect because overshooting incidents are common. But evidence of prior accidents goes directly to the issue of whether Ski Lifts exercised reasonable care in light of what it knew about the performance of this particular table top jump. Therefore, it had probative value.
Ski Lifts argues that the incident reports should have been excluded under ER 403, which provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." The burden of showing prejudice is on the party seeking to exclude the evidence. Carson v. Fine, 123 Wn.2d 206, 225, 867 P.2d 610 (1994); 5
Tegland, supra, § 403.2 at 435. [T]he exercise of discretion in balancing the danger of prejudice against the probative value of the evidence is a matter within the trial court's discretion and should be overturned only if no reasonable person could take the view adopted by the trial court. A trial judge, not an appellate court, is in the best position to evaluate the dynamics of a jury trial and therefore the prejudicial effect of a piece of evidence.
State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007) (internal citations omitted).
Ski Lifts argues that any probative value was outweighed by the extreme prejudicial effect, because Salvini's counsel and expert witnesses referenced the incident reports not just to demonstrate notice, but also to show that the jump was improperly designed and unreasonably dangerous. But although Ski Lifts lodged "a continuing objection regarding the accident reports," 1 TR (Mar. 12, 2007) at 51, it never objected to Salvini's closing argument or trial testimony that allegedly went beyond the limited purpose of notice. Rather, it raised this issue for the first time in its motion for a new trial. To challenge a trial court's admission of evidence on appeal, a party must raise a timely and specific objection at trial. State v. Gray, 134 Wn. App. 547, 557, 138 P.3d 1123 (2006), review denied, 160 Wn.2d 1008 (2007). "To be timely, the party must make the objection at the earliest possible opportunity after the basis for the objection becomes apparent." Id. at 557 n. 27. By failing to object at trial, a party waives any claim that the evidence was erroneously admitted. ER 103(a)(1); State v. Warren, 134 Wn. App. 44, 57-58, 138 P.3d 1081 (2006), review granted, 161 Wn.2d 1001 (2007).
Because Ski Lifts did not timely object to the improper argument and testimony, Ski Lifts waives any challenge to it now on appeal. "`The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation.'" State v. Sullivan, 69 Wn. App. 167, 170-71, 847 P.2d 953 (1993) (quoting State v. Kelly, 102 Wn.2d 188, 193, 685 P.2d 564 (1984)). But when a party who prevails on a motion in limine later suspects a violation of that ruling, that party has a duty to bring the violation to the court's attention to allow the court to decide what remedy, if any, to direct. A.C. ex rel Cooper v. Bellingham Sch. Dist., 125 Wn. App. 511, 525, 105 P.3d 400 (2004). As one court explained,
[W]here the evidence has been admitted notwithstanding the trial court's prior exclusionary ruling, the complaining party [is] required to object in order to give the trial court the opportunity of curing any potential prejudice. Otherwise, we would have a situation fraught with a potential for serious abuse. A party so situated could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal.
Sullivan, 69 Wn. App. at 172.
Here, while the court ruled that Salvini would be allowed to present evidence of prior incidents for the limited issue of notice, Ski Lifts was still required to object when Salvini's counsel elicited improper testimony in violation of the motion in limine so the court could attempt to cure any resulting prejudice. By failing to do so, Ski Lifts waived review of this issue. In addition, Ski Lifts' nonspecific continuing objection was insufficient to preserve the issue for appellate review. State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976); State v. Saunders, 132 Wn. App. 592, 607, 132 P.3d 743 (2006).
Ski Lifts further contends that the evidence was prejudicial because the jury might have improperly punished Ski Lifts for being a bad actor or improperly inferred that the jump must have been defective. We disagree. As discussed above, Ski Lifts successfully moved for a limiting instruction, which was read to the jury at the time the evidence was presented and was included in the court's instructions to the jury. "A jury is presumed to follow the court's instructions and that presumption will prevail until it is overcome by a showing otherwise." Carnation Co. v. Hill, 115 Wn.2d 184, 187, 796 P.2d 416 (1990) (curative instructions); see also State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995) (limiting instructions). And the trial court also instructed the jury in instruction 1 that "[i]t is your duty to decide the facts of the case based on the evidence presented to you during this trial" and that "[y]ou must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, bias, or personal preference." CP at 2657-59. Therefore, Ski Lifts' arguments that the jury might have misused the evidence or that it might have improperly punished Ski Lifts are purely speculative.
In sum, we conclude that the jury instructions accurately stated the law, were not misleading, allowed Ski Lifts to argue its theory of the case, and were supported by substantial evidence. We further conclude that the prior incident reports were properly admitted. Accordingly, we affirm.