On February 18, 2013, Judy Zhou, then a nine-year-old novice skier, was injured while skiing at the Tuxedo Ridge Ski Center in Tuxedo. On her first run of the day, Judy took the chairlift to the top of the bunny slope, a beginner’s hill. On her way down, she crashed into a white PVC pole which was being used as a stanchion to hold up an orange rope that designated where to wait for the ski lift.
In the ensuing lawsuit, the Queens County jury returned a verdict against the ski center and awarded pain and suffering damages in the sum of $18,000,000 ($3,000,000 past 4 1/2 years, $15,000,000 future – 66 years).
Defendants appealed arguing that the trial judge unfairly gutted their defense by erroneously (a) excluding critical video deposition testimony of a non-party ski patroler, (b) redacting plaintiff’s admission from the accident report (that she was injured when she fell and hit part of a “ski slow” sign), and (c) refusing to charge the jury on assumption of risk. In Zhou v. Tuxedo Ridge, LLC (2d Dept. 2020), the appellate court agreed with each of the defendants’ arguments and the liability verdict has therefore been reversed with a new trial to be held on the issue of liability.
Defendants had also argued alternatively that the damages verdict was a “runaway verdict” that should be reduced to the mid six figures. The appellate court addressed the damages issue holding that the jury awards for past and future pain and suffering deviated materially from what would be reasonable compensation. Accordingly, the court ordered that if liability against the defendants is found in the new trial then there shall be a new trial on damages as well unless plaintiff consents to reduce the first jury’s $18,000,000 award to $2,200,000 ($950,000 past, $1,250,000 future).
Here are the injury details:
- jagged displaced Salter-Harris II femur fracture destroying 50% of the growth plate
- fixation surgery with placement of hardware
- hospitalized two days, casted six weeks followed by custom made long-leg brace for two years
- one-half inch leg shortening, valgus deformity and significant pelvic tilt causing scoliosis
Plaintiff’s treating orthopedic surgeon stated at trial that her conditions are permanent and lifelong and he recommended two complex surgeries – including an osteotomy followed by external fixation that he said is “hideous” and would for sure have endless complications. Her doctor also opined plaintiff will need a total knee replacement when she is in her 30’s. The defense presented no medical expert testimony.
Plaintiff argued that this is a case of deformity of a child during her most active growth age, causing dramatic deformity of her skeleton, leg-length shortening, leg angulation, tilting of the pelvis, all “affecting every part of her body and life for the remainder of her days.” The defense noted that plaintiff ran on her school track team, participated fully in her physical education classes, no doctor placed any restrictions on her activities, and she never took any pain medications.
- Defendants had a chance to settle the case before the damages verdict for $4,500,000 (the limits of their liability insurance policy less 10%) but they refused.
- The jury also awarded future medical expenses in the sum of $1,000,000. Plaintiff’s doctor, though, testified that the cost of specific future medical expenses would be about $110,000. The appellate court ordered a reduction of the future medical expenses award to $115,000.