02.19.2020

In Appeal From $20.75MM Judgment, SACS Appellate Group Obtains New Trial On Liability & Huge Reduction In Damages Verdict to $2.33MM

The SACS Appellate Group just won a major victory in the Appellate Division, Second Department, as the Court overturned a $20.7MM judgment in favor of plaintiff, awarded a new trial on liability, and reduced the aggregate damages verdict to $2.3MM.  See Zhou v. Tuxedo Ridge, __ A.D.3d __ (2d Dep't, Feb. 19, 2020).  The novice nine-year-old plaintiff skier had fallen down on a bunny slope on her very first trip down the slope and alleged that she was injured because she struck a negligently-installed white PVC post used for connecting the bright yellow nylon rope designating the ski lift line.  At trial, the Supreme Court refused to permit defendant to play a video deposition for the jury of a non-party Ski Patroller, a New Jersey resident and the first responder to the injured plaintiff.  The Patroller's testimony was key to the defense on liability, as he found the injured plaintiff approximately 15 feet up the slope and away from the ski lift line (no where near the PVC post), received her party admission (which he incorporated in the accident report) that she was actually injured when she fell and hit part of a "ski slow" warning sign, and observed the knocked-over sign further up the slope.  The court refused to permit this devastating testimony (and precluded the party admissions contained in the accident report) by ignoring the plain language of CPLR 3117(a)(3)(ii), which expressly permits the admission of deposition testimony of out-of-state witnesses.  The court refused to apply the statute on the basis of its view that Hoboken (the witness' residence) was mere "walking distance" to Queens.  The Second Department, however, rejected the court's "walking distance" exception to the statute and held that the trial court's preclusion of this witness under CPLR 3117, and its refusal to charge the jury on implied assumption of risk, were unfairly prejudicial errors warranting a new trial on liability.  The Second Department further reduced the aggregate verdict figure to $2.3 million.  Of course, the damages verdict may become academic once the jury on retrial properly hears the evidence that was excluded at the first trial, and is properly given the implied assumption of risk charge.

Fantastic work on the briefs and oral arguments by Tim Capowski, Jack Watkins and Chris Theobalt!

http://nycourts.gov/reporter/3dseries/2020/2020_01206.htm

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