Late last week a jury in Summit County returned a $2.4 million dollar verdict for personal injuries sustained to the dominant hand of Ms. Amy Herzog in Herzog v. Vail Resorts, Inc., Case No. 200500069, Judge Richard Mrazik. The Jury awarded $2.25 million dollars for general damages.
Plaintiffs’ counsel were kind enough to provide me with a written report of this Utah personal injury case. A majority of it is reprinted here. Thank you to them for taking the time to write it up and send it over.
Counsel for Plaintiffs:
William J. Hansen – Lead Trial Counsel
Kristen C. Kiburtz
CHRISTENSEN & JENSEN, P.C.
John E. Hansen
Mitchell T. Brooks
SCALLEY READING BATES HANSEN & RASMUSSEN, P.C.
Case Overview:
On the evening of April 4, 2019, Vail Resorts’ Mountain Activities Team held an end-of-season company party at Jupiter Bowl in Park City, Utah. The party was for Vail employees only. Vail paid for the bowling and food. Approximately 15 team members attended the party. Mountain Activities Manager, Cara Sherlock, as well as her supervisor, Lynne Offret. The Vail company party took place on lanes 15 and 16 at Jupiter Bowl.
Plaintiff Amy Herzog was employed as a bartender/manager at Jupiter Bowl in Park City, UT. One of her job duties was to retrieve gutter balls as necessary.
Over the course of the Vail company bowling party, the attendees began bowling in an increasingly unorthodox and careless manner, including, kicking the bowling balls down the lane, bowling between their legs, bowling two at-a-time, and bowling while covering their eyes. Vail employee, Joe Ellis, performed two 360-degree spin maneuvers while bowling.
Just before 8:00 p.m., a bowling ball was lodged in the gutter of lane 16. As part of her job duties, Amy Herzog went to retrieve the gutter ball and clear the lane for further bowling. As she approached the gutter ball, Amy looked up to verify nobody was bowling in lane 16. However, unbeknownst to her, Mr. Ellis was in the midst of performing his second erratic 360-degree spin bowling move in the adjacent lane, lane 15. Mr. Ellis’ fingers were not in the holes on the bowling ball as he blindly spun around and prepared to hurl the ball down the lane. As Mr. Ellis catapulted the ball out of his hand, the ball flew into lane 16. Just as Amy reached down to pick up the gutter ball, Mr. Ellis’ bowling ball forcefully crashed into the back of her hand, crushing her hand against the gutter ball. Amy experienced immediate and excruciating pain and ran to the Jupiter Bowl office. Her co-workers called 9-1-1 and an ambulance arrived. She was immediately taken to Park City Hospital for emergency treatment.
Amy’s hand was crushed. X-rays revealed acute comminuted fractures of the left second and third metacarpals. She required immediate surgery, but her hand was too swollen to proceed at that time. She was forced to wait almost 2-weeks before the swelling subsided enough to allow for surgery. Amy finally underwent hand surgery on April 16, 2019, to stabilize the fractures in an effort to restore stability, alignment and hand function. Surgery was performed by Dr. Karen Heiden of Heiden Orthopaedics.
At trial, Dr. Heiden testified that this surgery was one of the most difficult she had ever performed. She testified that typical hand surgery requires 2-3 hours, whereas Amy’s took 4-5 hours. Surgery required implantation of various hardware, including pins, screws, K-wires and plates in order to hold Amy’s hand together.
On May 21, 2019, Amy underwent a second surgery to remove some of the hardware which had become infected.
Amy remained off of work through June 6, 2019. After which time, she was then cleared to return to work with restricted duties.
Amy underwent a third and final surgery on June 9, 2020, to remove additional hardware.
The injury occurred to Amy’s dominant left hand. Her hand was left with permanent disfigurement and limited use. She can no longer make a fist with her hand, and she has difficulty gripping items. She can no longer fully participate in hobbies she once enjoyed, including mountain biking, quilting, and drawing. Her hand bears a large scar as a reminder of the tragic ordeal.
Positions of the Parties:
At trial, Plaintiff alleged Vail was liable under two theories of negligence:
- Respondeat Superior – Ellis was acting within the course and scope of his employment when he performed the negligent 360-degree bowling maneuver.
- Negligent Supervision – the end-of-season bowling party was a company sponsored event and Vail had a duty to supervise the attendees.
Defendant Vail Resorts denied liability on the basis that:
- Ellis was not an employee at the time at the time of the end-of-season bowling party.
- The end-of-season bowling party was not a company sponsored event, and therefore, Vail did not have a duty to supervise Mr. Ellis at the end-of-season bowling party.
Vail also alleged that Amy was at fault for her injuries because she was “in the wrong place at the wrong time.”
At trial, Plaintiff demonstrated that the end-of-season bowling party was a company sponsored event. The event was promoted in the Mountain Activities Team daily morning meetings, flyers were posted on the workplace bulletin board, and Team Manager, Cara Sherlock, used her company email to send an invitation for the party to the Mountain Activities Team members.
Further, Ms. Sherlock testified that she filled out a Vail Resorts Categories of Sponsored Events form, which identifies “team bowling parties,” as a company sponsored event. Ms. Sherlock further testified that she completed the “Company Sponsored Events Approval Form,” which states in relevant part, “This form is intended to ensure that the appropriate level of management has been informed of a company sponsored event, and that supervisory personnel have been identified and are in attendance to provide oversight for the event.” At trial, Ms. Sherlock testified that she did not know what “oversight” meant in the context of the form. Defendant’s Human Resources expert, Michael Russo, testified that oversight meant that supervisors would ensure the event was paid for and that the event “would go off without a hitch.” Despite Ms.
Sherlock’s testimony that she completed the form, Defendant was unable to provide a copy of the signed form at trial.
Plaintiff also demonstrated that the end-of-season party benefitted Vail. Witnesses testified that purposes of end-of-season parties are to build team morale, friendship, and esprit de corps, all of which are beneficial to in an industry that relies on seasonal employees in hopes that good workers will return the next season.
Lastly, Plaintiff demonstrated that Mr. Ellis was still employed at the time of the bowling incident. Vail initially took the position that the Park City Mountain Resort had closed, and Mr. Ellis was no longer employed by Vail, however, testimony elicited at trial confirmed that the Mountain Resort remained open until April 7, 2019 – 3 days after the company party. Also, Mr.
Ellis underwent a performance review on April 6, 2019 – 2 days after the company sponsored bowling party.
Ultimately, the jury found that the end-of-season bowling party was in fact a company sponsored event, Mr. Ellis was acting within the course and scope of his employment when he attended the bowling party and performed his negligent 360-degree spin move, and Vail was negligent in its failure to supervise Mr. Ellis at the company sponsored event.
Experts:
For Plaintiff
Human Resources Expert: Twyla Salaiz
For Defendant
Human Resources Expert: Michael Russo
Litigation Details:
Action Filed: February 13, 2020
Trial Date: November 15, 2022 – November 16, 2022
Verdict: November 16, 2022
The Special Verdict form identified the following areas of damages:
Past Lost Earnings: $14,000.00
Past Medical Expenses: $88,000.00
General Damages: $2,250,000.00
Loss of Consortium: $50,000.00
Total Award: $2,402,000.00
The Docket is attached here: Docket – Herzog v. Vail
The Complaint is attached here: Complaint – Herzog v. Vail
The Answer is attached here: Answer – Herzog v. Vail
The Jury Instructions are attached here: Jury Instructions – Herzog v. Vail
The Special Verdict form is attached here: Special Verdict Form – Herzog v. Vail
Congratulations to the trial team and thank you again for providing the write up. It is greatly appreciated.
