United States District Court, D. Utah, Central Division
LINDA T. SEEK, Plaintiff,
VAIL RESORTS, INC., et al., Defendants,
MEMORANDUM DECISION AND ORDER
A. KIMBALL, UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendants' Motion in
Limine to Exclude Evidence of Post-Accident Conduct [Docket
No. 41] and Plaintiff's Motion in Limine Regarding
Plaintiff's Complaint and Plaintiff's Amended
Complaint [Docket No. 51]. On November 7, 2017, the court
held a hearing on the motions. At the hearing, Plaintiff was
represented by E. Scott Savage and Defendants were
represented by Adam Strachan. The court took the motions
under advisement. The court has carefully considered the
parties arguments as well as the law and facts relevant to
the motions. Now being fully advised, the court issues the
following Memorandum Decision and Order.
March 10, 2014, a windstorm at Park City Mountain Resort blew
a sign into Seek, striking her in the head. Seek alleges that
she suffered brain injury and a knee injury from the
accident. Defendants state that, at trial, they will concede
liability for the sign falling on Seek. But Defendants will
contest (1) the nature and extent of Seek's claimed brain
injury and (2) the nature, extent, and causation of
Seek's knee injury. Seek had injured her knee in a skiing
accident the day before the incident with the sign. The
parties dispute the extent of the knee injury attributable to
the skiing accident and the sign incident.
Defendants' Motion in Limine to Exclude Evidence of
ask the court to exclude all evidence and argument regarding:
(1) structural changes that were made to the sign following
the accident; (2) post-accident changes to Defendants'
policies and procedures regarding erecting such signs in
high-wind conditions; and (3) how or why the sign was
disposed of after the accident.
Rule 407 of the Federal Rules of Evidence, “[w]]hen
measures are taken that would have made an earlier injury or
harm less likely to occur, evidence of the subsequent measure
is not admissible to prove . . . negligence.”
Fed.R.Evid. 407. The structural changes and the policy and
procedures change were enacted to make an accident less
likely to occur and cannot be admitted to prove negligence.
Moreover, in this case, the changes are irrelevant because
Defendants admit that they had a duty to ensure that Seek was
not hit by a sign and that they breached their duty.
Therefore, evidence of Defendants' changes are
parties further dispute whether evidence regarding when and
how Defendants disposed of the sign is admissible. Defendants
claim that the evidence is irrelevant because they concede
that, for purposes of Seek's brain injury, the force of
the sign was sufficient to cause the injury she sustained
and, for purposes of the knee injury, the force of the sign
was not insufficient to cause the knee injury. Although she
has not filed any motion regarding spoliation, Seek contends
that evidence as to the sign's disposal is relevant and
she is entitled to a spoliation instruction requiring the
jury to make an adverse inference concerning the force with
which the sign struck Seek.
has not attempted to produce evidence in support of her
request for a spoliation instruction. Under Tenth Circuit
precedent, Plaintiff must present evidence that Defendants
disposed of the sign in bad faith. Turner v. Pub. Serv.
Co., 563 F.3d 1136, 1149 (10th Cir. 2009)
(affirming district court's refusal to give adverse
spoliation jury instruction without evidence of bad faith or
intentional conduct); McQueen v. Aramark Corp., 2016
U.S. Dist. LEXIS 164678 (D. Utah 2016) (denying request for
adverse instruction where defendant acted with gross
negligence rather than bad faith). While Defendants may have
been grossly negligent in disposing of the sign after someone
was injured by it, there is no evidence that Defendant's
disposed of the sign in bad faith. There were pictures of the
sign from the time of the accident and Defendants changed
signs as a result in the change of ownership at the resort.
Seek accuses Defendants of concealing the sign change, but
Seek never propounded interrogatories about sign changes and
a layperson could easily notice the change in the signs. To
claim that Defendants somehow “concealed” what
was so blatantly obvious is a meritless attempt to insinuate
bad faith where there is none.
Plaintiff must show that she is prejudiced by the loss of the
sign. Burlington Northern & Santa Fe Ry. Co. v.
Grant, 505 F.3d 1013, 1032 (10th Cir. 2007).
Seek contends that the absence of the sign precludes her from
proving the force of the impact. But Defendants admit that
the sign could have hit her with sufficient force to cause
her injuries. Defendants only dispute is whether the knee
injury was caused by the sign incident or Seek's skiing
accident the day before. The existence of the sign will not
be relevant to that debate. Rather, the parties will rely on
medical evidence and eyewitness testimony.
court concludes that a jury instruction that Defendants
destroyed evidence in bad faith is not warranted and would be
highly prejudicial. Such an inference would permeate the
trial and prejudice the jury against Defendants on an issue
of little probative importance. Accordingly, the court grants
Defendants' motion in limine.
Plaintiff's Motion in Limine Re: Plaintiff's
Complaint and Amended Complaint
have marked Plaintiff's Complaint as Exhibit A and
Plaintiff's Amended Complaint as Exhibit B. Defendants
intend to offer the two complaints to show that Plaintiff did
not initially complain of her knee injury. Seek argues that
her counsel did not originally believe there was enough
evidence to include a claim for the knee injury due to a
mistaken understanding of the facts and that he added the
claim when it became apparent during discovery that there was
sufficient evidence to support the claim. Seek contends that
counsel's mistake in not including the knee injury in the
original Complaint is embarrassing, but not relevant to the
issues of the case.
than relating to a fact of consequence, the Amended Complaint
issue relates more to litigation procedures. There is nothing
contradictory in the two complaints. The information
regarding Seek falling awkwardly and tearing her ACL were
merely added to the original Complaint. Defendants argue that
they should be able to tell their story with respect to the
inclusion of the knee injury in the Amended Complaint, but
the real issue is the causation of the knee injury and
Defendants can make all of their arguments regarding the
causation of the knee injury without reference to the
somewhat belated addition of the claim in the Amended
Complaint. The court and jury need not wander off into
correct litigation procedures and attorney testimony as part
of Defendants' defense. To suggest that the claim was
added only to enlarge Seek's special damages claim
ignores that there was obviously a basis for including the
claim in the Amended Complaint or Defendants would have moved
to dismiss the Amended Complaint or for summary judgment on