Opinion
No. 61234-4-I.
February 23, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-2-08830-1, Laura C. Inveen, J., entered January 29, 2008.
Reversed and remanded by unpublished opinion per Schindler, C.J., concurred in by Grosse and Appelwick, JJ.
George M. Anderson sued Pen-Lock Corporation, d/b/a Marmot Mountain Works (Marmot). Anderson alleged Marmot negligently mounted his telemark ski bindings, which caused his femur fracture. During trial, the court granted Marmot's CR 50 motion for judgment as a matter of law. Accepting Anderson's evidence as true and viewing the evidence in the light most favorable to Anderson, we conclude Anderson presented sufficient evidence that Marmot negligently installed the bindings, which resulted in Anderson's injury. We reverse and remand for a new trial.
FACTS
Marmot is a retail store that sells and mounts telemark skis and bindings. In 2003, Gregory M. Anderson purchased telemark skis from Marmot and purchased Voilé brand telemark ski bindings from another vendor. At Anderson's request, Marmot agreed to mount the Voilé bindings on the telemark skis he purchased at Marmot.
Anderson is an experienced alpine skier, but had no previous experience using telemark skis. Before using the skis, Anderson tested the bindings to see how they would release. The Voilé complete release bindings are multiaxial, which means that they release laterally and vertically at the toe. Anderson testified that when he tested the bindings, the boots "came out fairly easily." Anderson said that he also read the Voilé warning. The Voilé warning states that the release plates on the bindings would not release in all circumstances.
With a telemark ski binding, the boot only attaches to the ski at the toe, as opposed to an alpine ski binding, where the toe and heal of the boot attach to the ski.
The Voilé warning states:
WARNING. Telemark skiing is a hazardous sport. The sport of Telemark skiing and the use of the equipment involve a risk of injury to any and all parts of the body. Voilé release plates WILL NOT RELEASE OR RETAIN in all circumstances. It is not possible to predict every situation in which they will or will not release or retain the skier. The use of the Voilé release binding can not guarantee the user's safety or prevention from any injury or death while telemark skiing. The Voilé release binding may reduce chances of injury, but they do not eliminate the risk of injuries to the knee or any other part of the body.
Anderson went with friends to telemark ski for the first time near the Alpine Lakes Wilderness Area. The day was sunny and there was a thick layer of soft, wet snow on the ground. While skiing down the mountain, Anderson had difficulty turning. At one point Anderson slowed down to do a kick turn, but he lost his balance and fell onto his right side. As Anderson fell, he twisted his knee and heard a popping sound. Anderson was in a great deal of pain and called for help. A rescue team took Anderson to the hospital, where he had surgery for a fractured femur.
On March 10, 2006, Anderson filed a personal injury lawsuit against Marmot.
Anderson alleged that Marmot improperly and negligently installed the Voilé release bindings on the telemark skis causing his femur to facture.
Anderson retained Dr. Alan Tencer as an expert witness to determine what caused his femur to fracture. Dr. Tencer is a professor of orthopedics. He also has a Ph.D in mechanical engineering and is an adjunct professor of mechanical engineering. In addition, Dr. Tencer is an experienced skier and a certified alpine ski instructor. As an orthopedic and biomechanical engineering expert, Dr. Tencer analyzes the biomechanics of fractures.
In a written report, Dr. Tencer stated it was clear that "a gap is required between the front edge of the binding plate and the toe piece of the binding for proper function" and that "if the plate-toe piece gap is not properly adjusted, [it] could butt up against the toe piece and hinder sideways release." Dr. Tencer noted that Voilé recognized the need for a sufficient gap between the toe piece and the binding plate and provided a shim or hex key to ensure that the correct adjustment is made.
Based on his examination of the Voilé bindings mounted on Anderson's skis, Dr. Tencer concluded that "the gap was not correctly set when Mr. Anderson received the skis and bindings from the ski shop that mounted them. Specifically, the gap was too small and the shim would not fit into it." Dr. Tencer also concluded:
because the gap between the binding plate and the toe release was less than specified in the manufacturer's instructions, the forward thrust of the foot caused the binding plate to interfere with the toe piece, which could then not accommodate rotation, trapped the foot, and loaded Mr. Anderson's femur until fracture occurred.
. . . The binding was not correctly adjusted, explaining why Mr. Anderson's foot was trapped and his femur fractured.
Because he is not a ski binding technician, Dr. Tencer suggested that Anderson should also have a binding technician examine the Voilé bindings.
In January 2007, Anderson asked the master technician for the ski department in the downtown Seattle REI store, Richard Lang, to test the Voilé bindings that Marmot mounted on the skis. Lang has been an REI employee for approximately 21 years and has installed hundreds of Voilé bindings on telemark skis. Lang told Anderson that there were no guidelines to test the Voilé bindings. According to Lang, Voilé had not released any guidelines about the release of the bindings or how much force is required for the bindings to release. Nonetheless, Lang agreed to test the bindings on a calibrator used for alpine bindings in order to measure the upward release values.
Lang said that when he evaluated the bindings for lateral consistency "with torque registering devices they proved equal left/right." Lang also concluded that the bindings "appear as new in excellent condition all functions appear to be correct and release as intended."
Before trial, Marmot filed a motion in limine to exclude any testimony from Dr. Tencer concerning the standard of care for mounting Voilé bindings on telemark skis. In response, Anderson did not dispute that Dr. Tencer was not an expert on installing bindings, and stated his testimony would be limited to the mechanics of the Voilé bindings and "the biomechanics related to the fracture."
Dr. Tencer is not an expert on mounting ski bindings. We've never said that he is. What he is is a mechanical engineer and biomechanical engineer.
There is one issue in this case on the function of these bindings that he's perfectly competent to testify about. And this is not a design defect case. . . .
There is one area where this binding was incorrectly mounted. There's a little tool that comes with the bindings called a hex key, and the instructions clearly indicate that when installed, this little hex key has to check the gap where this little piston comes out against the toe plate, and you just insert it in there.
What Dr. Tencer observed is . . . that this tool did not fit in the gap. And as a mechanical engineer, the extent of Dr. Tencer's testimony on this issue . . . is the biomechanics of leading to the fracture, how the binding didn't release.
The court ruled that Dr. Tencer could not "testify to what the standard of care of an employee in a ski shop mounting these bindings should be" but that Dr. Tencer "would be able to testify as to the basic engineering principles of this particular piece of equipment. . . ." And that "if, in fact this would be his testimony, that when I put the shim between the two pieces, I had to use X amount of force, or it did not fit. But he shouldn't use the value terms of `properly' and `correctly' and things of that nature."
Anderson's theory at trial was that because the hex key did not fit in the binding gap, the Marmot employee failed to follow the manufacturer's instructions when installing the Voilé bindings, which resulted in the binding failing to release when Anderson fell, causing the femur fracture.
At the beginning of trial on December 4, 2007, Anderson's attorney informed the court that by the time the jury was empaneled, Dr. Tencer would not be available to testify in person. The court granted Anderson's motion to perpetuate Dr. Tencer's testimony by videotape. That afternoon, the court presided over Dr. Tencer's examination and ruled on objections. Without objection, Dr. Tencer testified that based on the instructions that come with the Voilé bindings, the hex key was designed to be placed between the metal plate on the skier's boot and the plastic barrel in the binding. Dr. Tencer said that when he tested the bindings, the hex key did not fit.
Anderson, his friend Gregg Overman, and Lang testified at trial. Anderson described purchasing the skis and bindings, the accident, his injuries, and meeting with Dr. Tencer and Lang. Anderson said he told Lang that he thought the bindings were improperly mounted because it appeared to him that the hex key did not fit in the gap. Overman testified that when he looked at Anderson's bindings, he also observed that the hex key did not fit in the gap.
Anderson called Lang as an expert witness on mounting the Voilé ski bindings. Lang testified that when he examined the bindings, there was space between the metal piece of the toe and the plastic barrel housing. Lang said that when he tested the bindings with the hex key that it was "a tight fit." But Lang also said that Anderson's bindings were mounted in accordance with good ski shop practices. In addition, Lang testified that if a skier fell when stopped or nearly stopped, he would not expect the binding to release.
Marmot filed a motion for judgment as a matter of law under CR 50. Even though the jury had not seen Dr. Tencer's videotaped testimony, for purposes of the motion, the court also considered that testimony. Marmot argued that based on Lang's testimony and Dr. Tencer's testimony, there was insufficient evidence to take the case to the jury on the issues of breach and proximate cause.
In opposition, Anderson argued that there was a question of fact as to whether the gap in the binding was improperly set according to the manufacturer's instructions resulting in the failure of the binding to release. The court granted Marmot's CR 50 motion for judgment as a matter of law and dismissed Anderson's lawsuit. Anderson appeals.
DECISION
Anderson asserts that his testimony and the testimony of Overman, Lang, and Dr. Tencer, present sufficient evidence to permit a jury to decide whether the gap in the binding was properly set and whether Marmot breached its duty to exercise reasonable care.
We review a trial court's order on a CR 50 motion for judgment as a matter of law de novo, applying the same standard as the trial court. Estate of Borden ex rel Anderson v. State Dep't of Corrections, 122 Wn. App. 227, 240, 95 P.3d 764 (2004). A motion for judgment as a matter of law is appropriate "when viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party." Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997); CR 50. Substantial evidence is evidence that is sufficient "to persuade a fair-minded rational person of the truth of the declared premise." Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986). In a ruling on a motion for a judgment as a matter of law, the court must treat the nonmoving party's evidence as true and draw all reasonable inferences from that evidence in the light most favorable to the nonmoving party. Lockwood v. AC S, Inc., 109 Wn.2d 235, 243, 744 P.2d 605 (1987). "The credibility of witnesses and the weight to be given the evidence are matters which rest within the province of the jury." Johnson v. Carbon, 63 Wn. App. 294, 301, 818 P.2d 603 (1991).
CR 50(a)(1) provides in pertinent part,
If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against the party on any claim . . . that cannot under the controlling law be maintained without a favorable finding on that issue.
To prove Marmot negligently installed the Voilé bindings, Anderson had to establish: (1) the existence of a duty, (2) breach, (3) injury, and (4) that the claimed breach proximately caused the injury. Hansen v. Friend, 118 Wn.2d 476, 479, 824 P.2d 483 (1992).
There is no dispute that Marmot had a duty to exercise reasonable care in mounting the Voilé bindings on the skis. To establish breach of that duty, Anderson had to prove that Marmot failed to exercise the reasonable care that a ski shop employee would exercise in mounting Voilé bindings. See Mathis v. Ammons, 84 Wn. App. 411, 416, 928 P.2d 431 (1996) (breach is the failure to exercise the care a reasonable person would exercise under the circumstances). Whether Marmot failed to exercise reasonable care "is a question for the jury, unless reasonable minds could not differ." Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 553, 192 P.3d 886 (2008).
Anderson contends that Marmot breached its duty to exercise reasonable care in mounting the bindings because the "barrel distance" or gap was not set in accordance with the manufacturer's instructions.
There is no dispute that Lang is an expert on how to install bindings. At trial, Lang testified that the purpose of the hex key is to test the gap on the bindings and stated, "It's my understanding that the gap is necessary to be there in order for the binding to be able to release. There needs to be a space between the barrel housing, the very forward portion of the binding, and the portion of the binding that holds the boot. So there needs to be a gap in order to allow that [sic] an area to move." Lang also testified that the manufacturer's instructions provide the only written material on how to install the bindings.
The Voilé instructions state that a ski shop employee mounting Voilé bindings is supposed to set the distance with the hex key, tighten the screws, and then check the barrel distance again with the hex key. The manufacturer's instructions provide in pertinent part:
Loosen barrel adjustment screw to relieve spring tension from piston. With binding mounted to release plate or CRB toe piece, snap into piston. Set barrel distance with hex key and tighten barrel screws. Tighten adjustment screw to proper setting (see enclosed chart), and recheck barrel distance.
Anderson, Overman, and Dr. Tencer testified that the hex key did not fit in the gap of the Voilé binding. Anderson stated that "the key could not be inserted in the ski bindings." Overman said that it "was not possible" to fit the hex key into the gap "without either hammering it in or shaving the shim in some way to fit in the gap at that time." Dr. Tencer testified, "I observed this, carefully tested it several times, and found that [the hex key] did not fit."
Accepting Anderson's evidence as true and drawing all reasonable inferences in his favor, Anderson presented sufficient evidence for a jury to decide whether Marmot exercised reasonable care in mounting the Voilé bindings.
Anderson also contends that Dr. Tencer's testimony presented sufficient evidence to allow a jury to decide whether Marmot's negligence proximately caused Anderson's injury. We agree.
As a general rule, proximate cause is a question of fact for the jury. Richland School Dist. v. Mabton School Dist., 111 Wn. App. 377, 389, 45 P.3d 580 (2002). Dr. Tencer testified that if the gap in the barrel housing is too small, the plate cannot clear the barrel and the binding gets stuck. Dr. Tencer stated that if the gap was too small "it could . . . prevent release." Dr. Tencer testified that on a more probable than not basis, that because the gap was too small, when Anderson fell, the binding did not release. Dr. Tencer further testified that Anderson's femur fracture was caused by bending and torsion rather than impact and that if the binding had released, Anderson would not have broken his femur.
We reject Marmot's contention that Dr. Tencer's testimony was too speculative and did not take into consideration the condition of Anderson's fall. Dr. Tencer's testimony was based on his review of the Voilé instructions, the mechanics of the bindings, and the radiographs of Anderson's injuries. In addition, Dr. Tencer testified about the force Anderson experienced in falling and the cause of the fracture.
Accepting Anderson's evidence as true and drawing all reasonable inferences in his favor, there is sufficient evidence to allow a jury to decide whether the bindings as installed by Marmot proximately caused the femur fracture.
We reverse the trial court's decision to grant Marmot's CR 50 motion for judgment as a matter of law and remand for a new trial.
WE CONCUR: