Harry DeWolf v. Mt. Hood Ski Bowl, LLC

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.

Affirmed.