Date: 03-22-2017

Case Style: Harry DeWolf v. Mt. Hood Ski Bowl, LLC

Case Number: A156394

Judge: Armstrong

Court: Oregon Court of Appeals

Plaintiff's Attorney: Kimberly Hanks McGair

Defendant's Attorney: Lisa T. Hung

Description: Plaintiff, Harry DeWolf, brought a wrongful death
action against defendant following the death of plaintiff’s
daughter, Taylur DeWolf, while she was snowboarding at
defendant’s ski resort. The jury found in favor of defendant,
determining that defendant was not negligent. However,
after entering a judgment on the jury’s verdict, the trial
court granted a motion by plaintiff under ORCP 64 B for a
new trial. Defendant appeals the trial court’s order granting
a new trial. We conclude that the trial court did not
abuse its discretion in ordering a new trial and, accordingly,
affirm.
We begin with the relevant facts. Taylur was snowboarding
at night at Mt. Hood Ski Bowl when she lost control
while on the Dog Leg run, causing her to leave the run
and collide with a tree. She died at the scene from her injuries.
Plaintiff, as the personal representative of Taylur’s
estate, brought a wrongful death action against defendant,
the operator of Ski Bowl. Plaintiff’s complaint alleged that
defendant breached its duty of care to Taylur by (1) failing
to warn of the degree of difficulty of the Dog Leg run;
(2) failing to warn of the degree of difficulty or dangerous
nature of a feature on the Dog Leg run (a reverse grade) that
caused Taylur to lose control; (3) maintaining a dangerous
feature on the Dog Leg run that was not reasonably obvious
or apparent; (4) failing to eliminate or reduce the unreasonable
risk of harm from that dangerous feature by routing
non-experts away from it, eliminating the dangerous
feature, warning customers about the feature, or guarding
against the dangerous feature; and (5) failing to discover
the dangerous feature on the Dog Leg run.
During discovery, plaintiff requested, among other
things, that defendant produce documents regarding injuries
at Ski Bowl over 10 ski seasons, inclusive of the 2011-
12 ski season—the season in which Taylur died. Defendant
refused to produce documents, and plaintiff brought a motion
to compel. In April 2013, the trial court granted plaintiff’s
motion in part, ordering defendant to produce documents of
injuries on the Dog Leg run during the two years before the
day that Taylur died.
Cite as 284 Or App 435 (2017) 437
In November 2013, plaintiff brought two motions
in limine related to the discovery order. First, plaintiff
sought to exclude “Ski Bowl’s claims of 40 years of safety”
because, before 2002, the claimed dangerous feature on
the Dog Leg run was covered by trees. Second, plaintiff
sought to exclude “Ski Bowl statements or data that there
have not been other ‘similar’ injuries or deaths on Dog Leg
run because defendant has not produced the injury data.”
Plaintiff argued that, because the court had ruled that
injury data more than two years before Taylur’s death was
not within the scope of discovery, it would be fundamentally
unfair to permit defendant to refer at trial to any data outside
that date range.
In late November, about one and one-half weeks
before the start of trial, the court held a single hearing on all
of the motions in limine brought by plaintiff and defendant.
With respect to plaintiff’s two in limine motions described
above, the court and the parties engaged in a lengthy colloquy.
Because it is important to our analysis, we relate that
colloquy at some length.
With regard to plaintiff’s motion to exclude defendant’s
claims of “40 years of safety,” the court granted it
in part, “in that we’re not going to talk about the record of
safety in areas outside the accident area,” and denied it with
respect to the accident area.
The court then took up plaintiff’s motion to preclude
defendant from discussing the absence of injuries or similar
incidents on the Dog Leg run for time periods for which
defendant had not produced documents. On that issue, the
court began by explaining that its April 2013 discovery ruling
was based on what the court believed the issues at trial
were going to be, which at that time did not include defendant’s
defense of 40 years of safety. The court then explained
that it would order an expanded scope of discovery in light of
plaintiff’s motion in limine:
“I suppose if at the time I understood that you were going
to claim 10 or 40 years of safety, I might have ordered you
to produce evidence of any accidents on the Dog Leg run
dating back as far as you say there haven’t been. So that
they can vet that.
438 DeWolf v. Mt. Hood Ski Bowl, LLC
“* * * I’ll deny the motion on the condition that the defendants
produce any documents supporting that there have
been no accidents on the Dog Leg run for the period of time
that they claim there haven’t been.
“So if you’re going to say 40 years, you’re going to have
to produce any documents that you have in your possession,
custody, or control of any accidents on the Dog Leg run for
the last 40 years. And, again, we’re just talking about the
Dog Leg run.
“[PLAINTIFF]: Your Honor, just so I’m clear, so they
need to—basically they’ve produced a certain type and set
of documents. They need to produce those for ten years?
“THE COURT: Well it depends on what statement—
again, I don’t know what statements they’re going to make
at trial. If they stand up and say: There have not been any
accidents on the Dog Leg run for the last 40 years, then—if
that’s what your intention is, then you ought to produce
records—any records and documents in your custody or
control regarding any accidents that occurred on the Dog
Leg run for the last 40 years. Because you’re—you’re injecting
it into the case. You’re injecting the relevance of 40
years into the case. So they’re entitled to that discovery.”
(Emphasis added.)
Defendant responded that it would not assert at
trial that there had been no accidents on the Dog Leg run—
because there had been accidents—but it would assert that
there had been no accidents like Taylur’s accident, specifically,
an accident with an “unexpected jump, fall line into
the trees that launches people into the trees.” Plaintiff
objected to defendant being the arbiter of what constitutes
an accident that is “similar,” such that defendant’s obligation
to produce documents would be triggered. To that argument,
the court ruled:
“But I suppose what [plaintiff’s] valid concern is it relies on
you making the determination of what it means to be ‘like
this.’ And so to the extent that you are construing ‘like this’
to mean someone had to die or somebody had to run into a
tree, I don’t think that’s fair. If somebody has been—lost
control after encountering the reverse grade, that, to me, is
enough ‘like this’ to be discoverable.
“* * * * *
Cite as 284 Or App 435 (2017) 439
“So what I’m—what I’m saying is if you’re going to make
that claim, ‘No accident has occurred like this for the last
ten years,’ they should get records going back ten years on
any accidents.
“[PLAINTIFF]: On the Dog Leg run.
“THE COURT: On the Dog Leg run relating to somebody
encountering a reverse grade.”
Plaintiff asked the court to broaden the order
because defendant’s accident documentation was not that
specific. Defendant objected to that because of the volume of
records involved. To that exchange, the court explained:
“First of all, it wasn’t necessarily made clear to me when
I ruled on [the motion to compel discovery]. * * * I don’t
think I was operating under the assumption that you were
going to come into court and say: We’ve got a record of ten
years of safety with this particular terrain. Because if I
knew you were going to say that, I’d say: Well, you’ve just
injected relevance of ten years of records of accidents on—
in that area.
“* * *—if you do intend to go back that far, I think they’re
entitled to records that go back that far. I mean, nobody’s
going to make you say: We’ve got ten years of no accidents
on—on that—that terrain that was exposed by the widening
of the slope.
“* * * * *
“What—I think they’re entitled to records. If you are
going to make that argument—and you don’t have to make
the argument—but if you are going to make the argument
that nobody ever before complained of this reverse grade
and unexpectedly catching air on this reverse grade, then
you have the obligation to produce documents that support
that assertion.
“And it’s too bad that it’s close—this close to trial.
Maybe—maybe in your opposition to the motion to compel
it should have been more clear to me that you intended to
make that argument. It’s not fair to the plaintiffs for you
to—for the Court to basically say: You get to decide what’s
similar or not similar.
“[DEFENDANT]: Let me understand the ruling, then.
You’re talking about any accident on Dog Leg wherever it is?
440 DeWolf v. Mt. Hood Ski Bowl, LLC
“THE COURT: As far back as you’re going to go with
your argument.
“[DEFENDANT]: Any accident on Dog Leg?
“THE COURT: No.
“[DEFENDANT]: Way at the top or—
“THE COURT: No. Any accident involving a reverse
grade and somebody encountering a reverse grade and having
an accident.”
(Emphases added.)
The court then had a short exchange with plaintiff
clarifying that the order covered any reverse-grade accidents
on the Dog Leg run, and not just any type of accident,
because evidence of just any accident would not be admissible
and because the court was “not controlling the how—
what arguments the defendant[ ] want[s] to make.” The
court concluded the discussion with a summary of its ruling:
“[I]f you don’t want to make that argument, then you don’t
have to produce those documents. But if you are going to
make [an] argument going back ten years, then you’re
going to have to produce records of any reverse grade accidents
on the Dog Leg run going back ten years.”
In short, the court repeated several times that defendant’s
obligation to produce records covered any period of time for
which defendant intended to argue at trial about a record of
safety on the Dog Leg run. And, based on defendant’s representations
that its argument about safety would be limited
to only “similar” accidents, the court limited the scope
of the order to what the court considered to be a “similar”
accident—an accident involving a reverse grade on the Dog
Leg run.1
1 As discussed below, defendant’s arguments on appeal are largely based on
its position that the trial court’s in limine order covered only documents involving
incidents that occurred before Taylur’s accident. In its opening brief, defendant
supports that position based on references in plaintiff’s document request and
motion in limine to “prior” incidents and based on some of the comments by the
trial court at the hearing. If that was where defendant had stopped, we would
not find ourselves making this comment. However, defendant proceeded in the
reply brief, and at oral argument, to forcefully represent to us that the trial court
explicitly ordered defendant to produce documents only of incidents that occurred
before Taylur’s accident—going so far as to accuse plaintiff of misrepresenting
Cite as 284 Or App 435 (2017) 441
After the court’s ruling, defendant did not produce
any responsive documents. At trial, defendant put on evidence
that included many witnesses testifying, without
regard to time period, that the entirety of Dog Leg is a safe,
fun, hazard-free run that is suitable for intermediate skiers
and snowboarders and their own children; a computer
animation of a smooth run down the entire length of the
Dog Leg run that was created based on conditions measured
a year after Taylur’s accident; two witnesses who testified
that there had been no accidents on the Dog Leg run in the
40-year history of the run, or indeed anywhere at Ski Bowl,
“similar” to Taylur’s, with “similar” meaning a catastrophic
injury; and argument emphasizing the overall safety of the
Dog Leg run and lack of “similar” incidents.2
the record in asserting that the court’s order required defendant to produce documents
covering whatever period of time that defendant chose to argue at trial
about the safety of the run. Our review of the transcript reveals that plaintiff
correctly characterized the trial court’s order (and the court’s discussion of that
order) and that the record does not support defendant’s contrary representations.
2 For example, defendant argued at length in closing that the entire Dog Leg
run has been safe and hazard-free for 40 years:
“What the overwhelming, and, by far, most credible evidence is, is that
there’s absolutely nothing wrong with the Dog Leg run. Nothing that needed
to be marked off or warned against. * * *
“So we had 14 witnesses, as I said, that had no issues with the Dog Leg
run. Now, what’s noteworthy about these 14 witnesses is that they had dedicated
significant aspects of their lives to the care and safety of others. * * *
“* * * * *
“All of these witnesses representing years and years of experience at Ski
Bowl, representing thousands of trips down the Dog Leg run, representing
decades of experience in caring for others and paying attention to the needs
of others, they all believed, they all testified, that Dog Leg—the Dog Leg run
is an excellent, safe, fun run that contains no hazards that ever need to be
marked against. No dangerous conditions. No surprise jump.
“Let’s—consider that phrase, surprise jump. That’s what the plaintiff
says, a surprise jump. I mean, what evidence is there possibly of a surprise
jump? If that were the case, wouldn’t you expect a lot more—a lot more injuries,
a lot more damage, a lot more problems with Dog Leg? We’ve had people
who have gone down that run thousands of times testify. Never once—never
once have they seen anything like what the plaintiff is trying to say was
there.
“In fact, many of these people have had their children ski down Dog Leg
for years. To find for the plaintiff, you would have to conclude that a whole
bunch of people, conscientious people, safety-minded people, people who care
about others, who watch out for others, suddenly don’t care. You would have
to determine that to find for the plaintiff.
“* * * * *
442 DeWolf v. Mt. Hood Ski Bowl, LLC
During defendant’s presentation of its case, plaintiff
moved to exclude testimony—based on defendant’s purported
failure to comply with the court’s in limine order—after a
defense witness testified about a lack of similar incidents,
with the understanding that “similar” meant a catastrophic
injury. At the hearing on that motion, defense counsel represented
to the court that they had looked through available
documents and had not found any other incidents covered by
the court’s in limine order. Based on that representation, the
court did not find a violation of its order and, accordingly,
denied plaintiff’s motion.
The jury returned a verdict for defendant, finding
by a vote of nine to three that defendant was not negligent
in any of the ways alleged in plaintiff’s complaint.
Following media coverage of the jury’s verdict,
plaintiff’s counsel was contacted by Bowles, who had had
a serious accident while skiing on the Dog Leg run a year
after Taylur’s accident. Bowles had notified defendant of his
accident in a letter (the Bowles letter) that had stated that
the site of his injury was “Lower bowl of Mt. Hood Ski Bowl;
at or near dog leg.” Bowles also gave plaintiff a video of his
crash, taken by a helmet camera that he had been wearing,
which showed Bowles falling in the area of the terrain
change at which Taylur had had her accident.
Plaintiff moved for a new trial under ORCP 64 B,3
submitting as supporting evidence Bowles’s declaration, letter,
and video footage. With regard to that evidence, plaintiff
“What else do we know about Dog Leg? We know there hasn’t been a
similar—a single similar accident in five-plus million skier visits. Five million.
Think about that number. That’s—
“[Objection omitted.]
“—going back 40 years.
“If there had been a surprise jump there, some sort of defect, some sort
of mythical rocky bench, reverse grade, whatever it is they want to call it
that was a problem, wouldn’t you expect in the five million skier visits that
something—some pattern would develop? Some issue? Some consistency of
similar types of accidents? You would expect that. And there isn’t.”
3 ORCP 64 B provides:
“A former judgment may be set aside and a new trial granted in an action
where there has been a trial by jury on the motion of the party aggrieved for
any of the following causes materially affecting the substantial rights of such
party:
Cite as 284 Or App 435 (2017) 443
argued that he was entitled to a new trial based on (1) defendant’s
misconduct in violating the court’s in limine order by
not disclosing the Bowles letter and by misrepresenting the
location or nature of other incidents on the Dog Leg run to
avoid disclosure of those incidents; (2) the newly discovered
Bowles evidence; and (3) the trial court committing legal
error or an abuse of discretion in permitting defendant to
determine what was a “similar” incident to Taylur’s accident
when complying with the court’s order to produce documents.
4 Those asserted grounds for a new trial invoked
ORCP 64 B(1), B(2), B(4), and B(6).
In response, defendant argued that it was not
required to disclose the Bowles letter because (1) the letter
indicates that Bowles’s accident did not occur on the
Dog Leg run, and (2) Bowles’s accident was one year after
Taylur’s accident and defendant had argued at trial only
that there had been no prior similar incidents. Defendant
further denied that it had misrepresented other incidents or
that it had records of other similar incidents. With regard to
the other two grounds advanced by plaintiff for a new trial,
defendant argued that the Bowles evidence did not meet the
standard for granting a new trial based on newly discovered
evidence and that the trial court had not made any errors.
At the hearing on plaintiff’s motion, the trial court
focused exclusively on defendant’s alleged misconduct in
“B(1) Irregularity in the proceedings of the court, jury or adverse party,
or any order of the court, or abuse of discretion, by which such party was
prevented from having fair trial.
“B(2) Misconduct of the jury or prevailing party.
“B(3) Accident or surprise which ordinary prudence could not have
guarded against.
“B(4) Newly discovered evidence, material for the party making the
application, which such party could not with reasonable diligence have discovered
and produced at the trial.
“B(5) Insufficiency of the evidence to justify the verdict or other decision,
or that it is against law.
“B(6) Error in law occurring at the trial and objected to or excepted to by
the party making the application.”
4 Plaintiff also argued in his motion that he was entitled to a new trial
based on jury misconduct and the trial court’s admission of certain evidence at
trial. Because we conclude that we should affirm the trial court’s grant of a new
trial based on prevailing-party misconduct, we do not discuss those alternative
grounds.
444 DeWolf v. Mt. Hood Ski Bowl, LLC
failing to produce the Bowles letter. With regard to defendant’s
assertion that defendant had argued at trial only that
there had been no “prior” incidents, the trial court found
that defendant had presented evidence and made arguments
asserting the safety of, and no similar incidents on, the
Dog Leg run up to the date of trial. The trial court pointed
out, in particular, that the animated snowboard run down
Dog Leg that defendant had presented at trial was based
on conditions measured two days before Bowles’s accident.
Defendant conceded that the trial court was correct about
that presentation.
The court then focused on whether there was some
other timing reason that would have caused its order not
to cover the Bowles letter. Throughout the hearing, the
court repeatedly asked defendant to leave aside the question
about the location of Bowles’s accident and answer
whether it believed the Bowles letter to be covered by the
court’s in limine order, that is, whether the order covered the
time period of Bowles’s accident. At no point did defendant
respond that the letter fell outside of the time period of the
court’s order. Rather, defense counsel conceded that, “if [the
letter] had said with specificity, you know, that it happened
in the same or similar location, under the grounds that you
set forth, then it would have been something that we would
have produced.”5
Defense counsel did not answer whether they had
reviewed the Bowles letter in connection with the court’s
5 At the hearing on the new-trial motion, the court said that its April order on
plaintiff’s motion to compel discovery had a temporal limit, stating, “[s]o I didn’t
order that, and technically that document’s [the Bowles letter] not covered by that
order.” (Emphasis added.) Directly after making that statement, the trial court
went on to say that its November order on the motion in limine covered “ten years
to today or something like that.” (Emphasis added.)
In its reply brief, defendant quoted the court’s comment about its April
order on plaintiff’s motion to compel without context to imply that the court was
talking about its November in limine order when it said that the Bowles letter
was not covered by “that order.” When plaintiff was asked about that quote at oral
argument and whether it was a reference to the in limine order, plaintiff accurately
represented that the trial court was referring only to the order to compel
and not the in limine order. In rebuttal, defendant asserted that the quote in its
reply brief was accurate, and further represented that it was a reference to any
order of the court and constituted a finding by the court that it had never ordered
production of the Bowles letter. The record contradicts defendant’s assertions.
Cite as 284 Or App 435 (2017) 445
in limine order, arguing only and repeatedly that the letter
indicated that Bowles’s accident was not on the Dog Leg run
at all, stating finally, “And we would have done that [not
disclose the accident] with any other incident report that
had this location.” Defendant’s position was based on its conclusion
that the letter indicated that Bowles’s accident had
occurred on the Lower Bowl run (as opposed to the lower
bowl of the Ski Bowl resort) near where the Dog Leg run
empties into the Lower Bowl run. The trial court rejected
defendant’s position as a factual matter based on the wording
of the Bowles letter. The court pointed out that the letter
stated that the accident was “at or near dog leg,” not that it
was on the Lower Bowl run. The court also pointed out that
Ski Bowl is made up of two families of runs that people refer
to as the “upper bowl” and the “lower bowl,” and the Dog
Leg run is in the “lower bowl.” Given that, the court found
that the letter was “pretty clear” that the accident happened
on the Dog Leg run. The court also emphasized that defendant’s
argument ignored defendant’s obligation to disclose
documents that are “reasonably calculated to lead to the discovery
of [admissible] evidence.” The court then took plaintiff’s
motion for a new trial under advisement.
While the motion for new trial was under advisement,
defendant submitted supplemental briefing on the
misconduct ground raised by the new-trial motion, asserting
for the first time that the in limine order did not require
production of the Bowles letter because the order did not
cover incidents that had occurred after Taylur’s accident and
because the Bowles letter did not say that his accident was a
reverse-grade accident. Plaintiff objected to that submission
and repeated his arguments for granting a new trial.
After considering the additional submissions, the
trial court granted plaintiff’s motion for a new trial in open
court without taking further argument from the parties.
The court ruled as follows:
“I am concluding that I made a legal error in creating
an ambiguity about what defendant’s obligations were with
respect to discovery.
“I think, in looking back at the transcript, and then in
thinking about how the trial progressed, and then with
446 DeWolf v. Mt. Hood Ski Bowl, LLC
the motion in limine made by the plaintiff, I should have,
particularly when the evidence came in with respect to the
expert who testified about what the condition of the slope
was a year later, and that’s evidence * * * that there was no
negligent design of the ski slope or that the ski slope didn’t
include anything unreasonably dangerous in it, which was
based upon measurements he made about a year later,
and particularly in light—I think—I think, in retrospect,
I didn’t correctly perceive how the issues were going to be
presented in terms of—I think I had too much of a focus on
notice of a potentially unreasonable or dangerous—unreasonably
dangerous condition versus whether there was any
unreasonably dangerous condition at all.
“And I think the thrust of the defendant’s case, and obviously
their argument that ultimately was successful with
the jury, was there was nothing unreasonably dangerous
at all about the slope, which makes information about accidents
right up to the date of trial relevant and well within
the scope of discovery.
“I should have, as that became more clear to me, ruled
that defendants were obligated to produce documents
regarding accidents right up to the date of trial. That being
said, I mean, I certainly didn’t have in my mind that there
was any accident. I remain—I think you probably got a
sense from the hearing that we—that we last held, that I’m
not convinced that defendants were relieved of an obligation
to produce this document because it said Lower Bowl
on or at Dog Leg.
“I think that particularly in light of the discovery standard,
reasonably calculated to lead to the discovery of relevant
evidence, I can see where there’s a judgment call
there. But I think, in my view, the correct judgment is that
that document has to be produced.
“If ultimately it turns out it’s at a different location and
on a different slope, then the evidence can be kept out.
That’s—that’s how that gets dealt with. That’s how that
should have been dealt with.
“So I am concluding that that has—I think because that
goes to a central issue in the case, and an issue on which
the jury was divided nine to three, I think that materially
affected the plaintiff’s ability to present their case.
“So I’m—although it’s—frankly, I find this a difficult
decision to make because it was a long and arduous trial[.]
Cite as 284 Or App 435 (2017) 447
* * * I recognize that this places burdens, frankly, on both
parties, but I feel like I am obligated to grant a motion for
a new trial.”
Defendant appeals the trial court’s grant of a new trial.
We will affirm a trial court’s grant of a new trial if
any of the grounds argued in support of the motion for new
trial is well taken and, as provided in ORCP 64 B, the welltaken
ground materially affected the substantial rights of
the moving party. Gragg v. Hutchinson, 217 Or App 342,
347, 176 P3d 407 (2007), rev den, 344 Or 401 (2008) (citing
Williams v. Laurence-David, 271 Or 712, 718, 534 P2d 173
(1975)). Here, we confine our analysis to the court’s determination
of legal error and to defendant’s alleged misconduct.
“When the trial court’s order of a new trial is based on an
interpretation of the law, we review that order for errors of
law.” Bennett v. Farmers Ins. Co., 332 Or 138, 151, 26 P3d
785 (2001). “If the trial court made no predicate legal error,
then we review its decision for an abuse of discretion.” State
v. Farmer, 210 Or App 625, 640, 152 P3d 904, rev den, 342
Or 645 (2007). With regard to whether the ground for a new
trial involved conduct or evidence that materially affected
the moving party’s substantial rights, we will usually defer
to a trial court’s determinations of prejudicial effect, reviewing
for an abuse of discretion. Gragg, 217 Or App at 347 (citing
Moore v. Adams, 273 Or 576, 579, 542 P2d 490 (1975)).
“The trial court is the finder of fact at a hearing on a motion
for a new trial.” Farmer, 210 Or App at 640. As such, we
apply our usual standard of review and defer to the court’s
explicit and implicit findings of fact if supported by evidence
in the record.
We start our discussion with the ground on which
the trial court based its new-trial order—“legal error in creating
an ambiguity about what defendants’ obligations were
with respect to discovery”; specifically, that the court was
not clear that its in limine order covered accidents occurring
up to the date of trial. As explained below, we conclude
that the trial court could not grant a new trial on that basis
because the trial court’s order simply did not contain the
ambiguity that the trial court identified. Because that conclusion
is entwined with how defendant has argued its case
448 DeWolf v. Mt. Hood Ski Bowl, LLC
on that issue, we start our explanation with a brief summary
of those arguments.
Defendant asserts that the court’s in limine order
only encompassed accidents that occurred before Taylur’s
accident because plaintiff’s in limine motion only referred
to injury data occurring before Taylur’s accident, and the
trial court’s reference at the hearing to records “going back
ten years” was a reference to plaintiff’s document request
that only requested documents up to the 2011-12 ski season.
6 Given that understanding of the in limine order, defendant
asserts that the court did not identify any legal error
on which it could base a new trial. Additionally, defendant
argues that the trial court did not legally err when it failed
to require defendant to produce documents about accidents
occurring after Taylur’s accident.
We reject defendant’s arguments because they are
not supported by the record. As set out at length above, 284
Or App at 437-40, the trial court clearly and repeatedly
said that its order to produce records—which was a condition
that the court required defendant to fulfill so that the
court would not exclude from trial defendant’s arguments
about a 40-year record of safety on the Dog Leg run—was
tied directly to whatever arguments and evidence defendant
intended to present at trial.7 In particular, the court repeatedly
made clear that the time frame of its order covered
the time period that defendant’s safety arguments covered.
In that way, the full scope of the court’s order was entirely
within defendant’s control. At trial, defendant chose to put
on evidence and to argue that the Dog Leg run has been safe
and hazard-free for its entire history and that there have
been no similar incidents for 40 years, including up to the
6 Defendant also argues that the trial court did not err because plaintiff did
not make a request for the production of documents that would have encompassed
the Bowles letter, and the trial court’s April order on plaintiff’s motion to compel
did not encompass the letter. We reject that argument because it is inapposite—
plaintiff never advocated for a new trial on that basis, and the trial court explicitly
was not granting one on that basis. Rather, both plaintiff and the trial court
referred only to the court’s November order on plaintiff’s motion in limine.
7 As set out in our description of the facts, the hearing on the motion in limine
was held approximately one and one-half weeks before trial. That close to trial
defendant would have known the content of its planned trial presentation, and
defendant has never asserted that it did not.
Cite as 284 Or App 435 (2017) 449
time of trial. Thus, the Bowles letter, as a temporal matter,
was unambiguously covered by the court’s in limine order.
In rejecting defendant’s arguments regarding the
time period covered by the trial court’s order, we necessarily
also reject the trial court’s conclusion that it committed
legal error in creating an ambiguity in its order, because
the identified ambiguity does not exist. Upon review of the
record, we conclude that there is no evidence to support the
court’s finding that the order was ambiguous. Because the
trial court did not legally err in the manner identified by the
court, the court could not grant a new trial on that basis.
Because we are tasked with affirming a trial court’s
grant of a new trial if any ground in the moving party’s
motion is well taken, we turn to the misconduct ground
raised below by plaintiff, which we conclude is well taken.
ORCP 64 B(2) provides that a new trial may be granted for
“misconduct of the * * * prevailing party” if that misconduct
“materially affect[ed] the substantial rights of [the moving]
party.” “Where misconduct is alleged, the focus is on the sufficiency
of the evidence and the level of misconduct.” D.C.
Thompson and Co. v. Hauge, 300 Or 651, 655, 717 P2d 1169
(1986). As noted, we defer to the trial court’s explicit and
implicit factual findings that are supported by evidence in
the record. However, the determination whether the conduct
of defendant, as found by the trial court, constituted “misconduct”
under ORCP 64 B(2) is ultimately a question of
law. Cf. State v. York, 291 Or 535, 539, 632 P2d 1261 (1981)
(court’s findings of fact on prosecutor’s actions was binding
on appeal, but “[t]he conclusion that the prosecutor’s act
was not ‘misconduct’ is a decision of law which is subject to
appellate scrutiny”; concluding that prosecutor engaged in
prosecutorial misconduct by improperly discouraging a witness
from talking to the defense, even though the conduct
was not expressly foreclosed by statute or rule).
Plaintiff argues that, although the court did not
base its ruling on misconduct, the court still found that
“(1) defendant had an obligation to produce the Bowles document
under [the court’s] motion in limine ruling; (2) defendant
improperly withheld that document; and (3) plaintiff’s
rights were materially affected.” Based on our standard of
450 DeWolf v. Mt. Hood Ski Bowl, LLC
review, plaintiff argues that those findings are sufficient for
us to affirm the trial court’s grant of a new trial based on
prevailing-party misconduct. In addition, plaintiff argues
that the record demonstrates that defendant engaged in
other improper obstruction of discovery, particularly by
improperly refusing to disclose documents based on defendant’s
own determination of what was admissible evidence.
With respect to misconduct, defendant chose not
to make arguments on appeal and instead “simply incorporate[
d] the arguments it made in the trial court.” Defendant
argued below that they could not have committed misconduct
because the trial court’s in limine order did not require
disclosure of the Bowles letter because (1) Bowles’s accident
occurred a year after Taylur’s accident, (2) the Bowles letter
indicated that his accident was not on the Dog Leg run,
and (3) the Bowles letter did not mention that his accident
involved a “reverse grade.”8
As set forth above, the trial court’s order unambiguously
encompassed the Bowles letter, as a temporal matter.
There is no reasonable reading of the record that could have
led defendant to believe otherwise. Additionally, there is
no evidence in the record that defendant actually held that
belief at the time that it told the court that it had no responsive
documents. Tellingly, the only affidavit provided by
defendant at any time that could be read as an explanation
of why it did not produce the Bowles letter was that, at the
time that Ski Bowl received the letter, “Skibowl concluded
that Bowles’ accident occurred on the Lower Bowl run, at
or near the juncture of the Lower Bowl and Dog Leg runs.”
Defendant also stated at the hearing on the new-trial motion
that, setting aside the location issue, defendant would have
produced the letter. We must determine whether defendant
engaged in misconduct based on what defendant actually
did, not on what defendant might hypothetically have done.
8 In the trial court, defendant also argued that certain federal case law,
which requires a showing of willful or deliberate misconduct or bad faith, should
be used to determine whether defendant had engaged in misconduct. We decline
to do that because those cases rely on law that differs in material respects from
the text of ORCP 64 B(2). See Gross v. Hackers, 168 Or App 529, 535-36, 4 P3d
1281 (2000), rev den, 332 Or 239 (2001) (declining plaintiff’s invitation to apply
federal case law under FRCP 60(b) because federal rule differs from ORCP 64
B(2)).
Cite as 284 Or App 435 (2017) 451
It is sufficient for purposes of defendant’s argument that we
conclude that the court’s order encompassed the Bowles letter
based on when Bowles’s accident occurred.
We also conclude that the trial court correctly concluded
that its order covered the Bowles letter, as a location
matter. As discussed above, the only explanation that defendant
gave for why it did not disclose the Bowles letter was
because it understood the Bowles letter to say that the accident
had occurred on the Lower Bowl run and not the Dog
Leg run. The trial court rejected defendant’s explanation
as a factual matter, which is supported by evidence in the
record. The Bowles letter states that the accident location
was “Lower bowl of Mt. Hood Ski Bowl; at or near dog leg.”
Based on that description, the court found that the Bowles
letter did indicate that the accident had occurred on the Dog
Leg run, because that is a lay understanding of the location
of Dog Leg—a run that is within the lower bowl of Ski Bowl.
Defendant’s explanation as to why it had concluded that the
accident had not occurred on the Dog Leg run was based
on a highly technical and intimate knowledge of the layout
of Ski Bowl and, as the court found, was an unreasonable
standard to apply to a layperson’s identification of the accident’s
location. Thus, we conclude that it was misconduct for
defendant to withhold the Bowles letter based on its unreasonable
interpretation of the letter as stating that the accident
had not occurred on the Dog Leg run.
Finally, we address defendant’s argument that it
was not required to produce the Bowles letter because the
court limited its order to “reverse grade” accidents. We
reject defendant’s argument for two reasons. First, as with
the timing issue, defendant did not provide evidence that it
had withheld disclosure based on a belief that the Bowles
letter was not covered by the court’s order because the letter
did not say that the accident involved a “reverse grade.”
Second, the court determined that defendant had a
discovery obligation to disclose the Bowles letter. As such,
the court implicitly found that its order referencing “reverse
grade” accidents did not relieve defendant of the obligation
to disclose the Bowles letter. We agree with the trial court.
Under ORCP 36 B(2), which sets out the scope of discovery,
452 DeWolf v. Mt. Hood Ski Bowl, LLC
“[i]t is not ground for objection that the information sought
will be inadmissible at the trial if the information sought
appears reasonably calculated to lead to the discovery of
admissible evidence.” Nothing in the Bowles letter ruled
out that the accident involved a “reverse grade.” The letter,
however, was reasonably calculated to lead to the discovery
of admissible evidence—that is, a reverse-grade accident—
because it provided enough information for plaintiff to discover
the details of Bowles’s accident. Thus, the Bowles letter
was within the scope of the court’s in limine order on the
production of documents.
In sum, defendant’s failure to produce the Bowles
letter violated the court’s in limine order. That violation, in
turn, constitutes misconduct by a prevailing party under
ORCP 64 B(2).
We next address whether defendant’s misconduct
materially affected plaintiff’s substantial rights. Because
the trial court determined that the failure of defendant to
produce the Bowles letter did materially affect plaintiff’s
substantial rights (albeit based on legal error), we defer
to the trial court’s determination on that point, reviewing
for an abuse of discretion. Gragg, 217 Or App at 347. The
trial court determined that, because production of the letter
“goes to a central issue in the case, and an issue on
which the jury was divided nine to three,” plaintiff’s ability
to present his case was materially affected. We conclude
that the court acted within its discretion in making that
determination.
We reject defendant’s argument that plaintiff was
not prejudiced because the Bowles letter would have been
inadmissible at trial. The question is not whether the Bowles
letter would have been admissible on its own, but whether
evidence of Bowles’s accident would have been admissible, as
the disclosure of the letter would have enabled plaintiff to
obtain the details of the accident. It is readily apparent from
the record that the trial court would have admitted evidence
of that accident. Bowles’s declaration and helmet-camera
footage established that his accident took place in the same
area of the Dog Leg run as Taylur’s accident. The trial court
had already ruled that any such accident was sufficiently
Cite as 284 Or App 435 (2017) 453
“similar” to be admissible at trial under the case law on
which defendant relied.
We also reject defendant’s argument that the evidence
of Bowles’s accident would not have affected the jury’s
verdict because the jury heard evidence of another accident
on the same terrain feature on the Dog Leg run the day
after Taylur’s accident. Defendant’s argument ignores that
defendant argued at trial, at length, that there was nothing
wrong with the Dog Leg run, because, if there were something
wrong, there would have been a pattern of similar
accidents on the run. To rebut defendant’s argument, it was
crucial to plaintiff to produce evidence of any and all similar
accidents. In light of the explicit argument made by defendant
at trial, we reject defendant’s argument that evidence
of Bowles’s accident would be merely “cumulative” because
plaintiff had put on evidence of one other, similar accident.
In assessing the prejudice of defendant’s misconduct
in this case, we again emphasize the unusual and critical
nature of the court order that defendant violated when
it failed to produce the Bowles letter. It was not a minor discovery
violation. Defendant violated a court order that conditioned
defendant’s ability to make its main argument at
trial—the lengthy history of a safe and hazard-free Dog Leg
run—on its compliance with the court’s production order. It
was significant that defendant preserved its ability to put on
its entire defense at trial, and its violation of the attached
condition was equally significant. We thus conclude that the
trial court did not abuse its discretion in ordering a new
trial in the unusual circumstances under which defendant’s
misconduct arose in this case.
We also briefly address defendant’s contention that,
if we affirm the trial court’s grant of a new trial, we should
review defendant’s assignments of error asserting that the
trial court erred in giving a jury instruction and erred in
admitting certain evidence during the original trial. We
decline to review those rulings because the issues need to
be addressed by the trial court in the first instance in the
context of the new trial. Accordingly, we affirm.

Outcome: Affirmed.

Plaintiff's Experts:

Defendant's Experts:

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