$6.17 Million Verdict for Skier Brain-Injured in Fall Off Unmarked Drop-Off at Massanutten Ski Resort

Two days before Thomas Hoar's accident, Massanutten Ski Resort in Virginia opened a new, more advanced trail called Diamond Jim. It was built by cutting into the hillside and using the excavated soil to fill in the opposite side, a process that doubled the width of the run. In the area where Hoar was hurt, the work left a drop-off of roughly thirty feet along the left edge, with rocks and logs at the bottom. It also left a gap between the groomed surface and the tree line, so skiers had no visual cue that the trail was ending.

On the morning of January 19, 1992, Hoar, an experienced skier, was on his second run down Diamond Jim with a friend, a civil engineer. The two stopped near a sign marked 'slow' and then Hoar skied laterally toward the left side of the slope. Shortly before the edge he caught an edge, lost his balance and slid out of sight. His friend skied to the lip and found the vertical drop for the first time. Hoar was lying between two logs more than thirty feet below, unconscious and bleeding from the nose, mouth and one ear. A skier who had watched described him as falling forward, out of control.

Hoar suffered disabling brain damage. He is incompetent and was unable to testify at trial, so his wife, Patricia Stone Hoar, sued as his guardian. Her case rested on one theory: Massanutten was negligent for failing to warn skiers about the drop-off. Her skiing safety expert testified that a simple barrier or fence was the custom in the industry for a hidden hazard like this one. The resort had received bright orange warning fencing and installed the posts at the spot, but had not attached the fencing at the time of the accident; it went up a couple of days later. The resort's own assistant ski area manager testified that common sense says you tell people about a problem on a slope that is not easily identifiable.

Massanutten defended on assumption of risk, contributory negligence and the visibility of the edge, and called its own expert to say the trail was marked appropriately. The jury, hearing the case in Albemarle County Circuit Court, returned a verdict of $6,170,563 for the guardian. The trial judge then set the verdict aside and entered judgment for the resort, ruling that expert testimony on the industry standard was required, that nothing showed a warning would have changed what happened, and that causation was not established.

The Supreme Court of Virginia reversed. In an opinion by Chief Justice Harry L. Carrico, it held that whether a resort must warn of an unsafe condition that is not open and obvious is a matter of common knowledge, so no expert was needed. It found that the conflicting testimony on visibility and on the need for a warning was properly left to the jury, and that a log at the bottom of the drop-off, where a witness found what looked like skin or fiber, supplied the link between the failure to warn and the injury. Patrick M. Regan and Jonathan E. Halperin of Regan, Halperin & Long, the predecessor of Regan Zambri Long, were on the briefs for the guardian with Bruce D. Rasmussen of Michie, Hamlett, Lowry, Rasmussen & Tweel, who argued the appeal. The court reinstated the verdict and entered final judgment on November 6, 1998.