Cynthia R. Schiro, V. Boyne Usa, Inc. Dba Crystal Mountain, Inc.
54768-6
| Wash. Ct. App. | Mar 15, 2022Background
- Cynthia Schiro fell and was injured while skiing at Crystal Mountain after earlier interaction at the Gold Hills chairlift where she alleges lift operator Elisa Pope denied her request to "download" (ride the lift down).
- Crystal Mountain stipulated Pope was acting within the scope of employment but disputed that Pope refused the download; Schiro sued for negligence and also negligent hiring and negligent retention.
- Pretrial, the court admitted some character evidence about Pope but excluded evidence of alleged off-duty drinking, drug use, theft allegations, and certain post-accident complaints unless tied to fitness to work; it also barred "on average" medical testimony.
- After Schiro rested, the court granted Crystal Mountain’s CR 50 motion and entered judgment as a matter of law dismissing negligent hiring and retention claims; the jury then found Crystal Mountain not negligent on the primary claim.
- Schiro moved for a new trial, arguing erroneous dismissal of hiring/retention claims, improper exclusion of evidence about Pope, misconduct by defendant’s medical expert, and failure to sanction defense counsel; the court denied the motion.
- On appeal the Court of Appeals affirmed: it held the dismissal was proper (or harmless), the evidentiary rulings were not an abuse of discretion, the expert remarks did not justify a new trial, and declined to review the sanctions claim for lack of a final ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dismissal of negligent hiring and retention claims | Schiro: court erred to dismiss because such claims can proceed even when employee acted within scope of employment and evidence supported unfitness | Crystal Mountain: claims redundant when employer concedes scope and Schiro offered no evidence employer knew of unfitness at hiring/retention | Court: affirmed — Schiro failed to present factual basis; any error harmless because jury rejected the threshold factual predicate (Pope denied download) |
| Exclusion/limitation of evidence about Pope (off-duty behavior, alleged theft, post-accident complaints, band video) | Schiro: excluded evidence was relevant to show Pope’s unfitness and credibility for negligent hiring/retention | CM: evidence irrelevant or barred by ER 404(b)/relevance rules and many incidents postdate the accident | Court: no abuse of discretion; exclusions were either irrelevant to the threshold issue or properly limited; any error harmless |
| Alleged misconduct by expert (Dr. Harris: "on average" testimony and remark about unrelated lawsuit) | Schiro: expert violated in limine orders and prejudiced jury, warranting new trial | CM: remarks were minor, largely related to damages (which jury never reached), and objections were addressed during trial | Court: no abuse of discretion denying new trial; remarks were not prejudicial to the threshold negligence issue |
| Sanctions for discovery/CR 30(b)(6) failures | Schiro: court abused discretion by not awarding sanctions and fees for deficient 30(b)(6) preparation | CM: trial court left sanction issue open and Schiro did not renew motion after additional discovery | Court: declined to review because Schiro failed to identify a final, appealable sanction ruling |
Key Cases Cited
- Paetsch v. Spokane Dermatology Clinic, 182 Wn.2d 842 (CR 50 JMOL standard)
- Mancini v. City of Tacoma, 196 Wn.2d 864 (appellate review of sufficiency of evidence)
- Niece v. Elmview Group Home, 131 Wn.2d 39 (recognition of negligent hiring/retention causes of action)
- Rucshner v. ADT Security Sys., Inc., 149 Wn. App. 665 (elements of negligent hiring)
- Betty Y. v. Al-Hellou, 98 Wn. App. 146 (elements of negligent retention)
- Anderson v. Soap Lake Sch. Dist., 191 Wn.2d 343 (proximate-cause requirement for negligent hiring/retention)
- Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302 (harmless error doctrine)
- Gilmore v. Jefferson County Pub. Transit Benefit Area, 190 Wn.2d 483 (standard for reviewing evidentiary rulings)
- Spencer v. Badgley Mullins Turner, PLLC, 6 Wn. App. 2d 762 (new trial for misconduct standard)
- Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517 (prejudice inquiry for misconduct/new trial)