by Mike Donoghue

A federal judge in Burlington has dismissed a claim by a New York skier that he had accepted a multi-million dollar out-of-court settlement minutes before a jury in February rejected all the legal claims he made about an accident that left him paralyzed at Okemo Mountain.

The injured skier, Richard Grajeda of Westbury, N.Y., was unhappy with the ruling from the bench by U.S. District Court Judge Christina Reiss in Burlington after she heard legal arguments last week.

“They accepted it,” Grajeda yelled at the judge as he stepped back from his walker and slumped into his wheelchair.

“You can’t do that,” Reiss said as she adjourned court after about a 75-minute hearing.

As Reiss left the courtroom, Grajeda continued, “I don’t understand.”  The Long Island man held his head in his hands.

He looked over at the two defense lawyers and said they were “a bunch of liars.  You guys are going to get yours,” Grajeda yelled.

“Karma comes around for everyone.  Karma comes around,” Grajeda said as his mother began to wheel him out of the fifth-floor courtroom.

It was the latest in an ongoing, dramatic and potential precedent-setting lawsuit.

The defendants, Okemo Mountain of Ludlow and its parent company, Vail Resorts Inc. and Vail Resorts Management Co. of Bloomfield, Col. maintain they did not have an offer on the table when the plaintiff said he wanted to accept the final offer as the jury prepared to report its verdict.

The court case stems from a ski accident on Thursday, Dec. 19, 2019.  Grajeda, then 21, was heading down a beginner’s trail at Okemo about 10 a.m. when he fell. He slid into the padded pole for the snowmaking gun located in the middle of the trail and became a paraplegic, court papers note.

Grajeda admitted during his testimony that he had smoked cannabis shortly before hitting the mountain that morning.  It was a ski day with friends, but nobody saw the fall on his second run of the day.

He filed a civil lawsuit seeking $50 million in October 2020, but by the time closing arguments were made to the jury in mid-February, lead lawyer Andrew J. Smiley of New York City asked for $97 million, including $88 million in pain and suffering.

During the closing arguments Smiley said Grajeda also wanted the jury to award $664,918 in past medical bills for his client’s life-altering injuries. Smiley also asked for $7,904,805 in future economic losses. 

Testimony indicated Grajeda’s future medical care will cost between $3.2 million and almost $5 million during the next 55 years of his projected life.  He needs near constant care and has braces on both legs and can stand the help of a walker, which he used to walk across the stage when he graduated from the University of Alabama.

The jury – five men and five women — heard testimony from 29 witnesses and legal arguments from lawyers over 12 trial days. Two jurors were excused including one that fainted during medical testimony. 

Okemo and Vail have both tried to avoid any disclosure of the multi-million-dollar amounts that were at stake during the settlement talks.  A proposed settlement amount from Feb. 9, and a counteroffer from Feb. 12, are blacked out in the court papers.

One of their appeal lawyers, Michael J. Curtis of New York City, at the start of the hearing asked Judge Reiss to ensure no dollar amounts from the negotiations were mentioned in open court. 

After the hearing last week Smiley said in an interview he plans to appeal the latest ruling by Judge Reiss.  He noted the actual jury verdict for the defense was appealed earlier to the on U.S. Second Circuit Court of Appeals in New York City.

Curtis, on behalf of the defendants, said after the hearing he had no comment.

The verdict dispute unfurled this way going into President’s Day Weekend:

After the jury deliberated for about seven hours, Smiley said he told the defendants his client wanted to take the last settlement offer.  The message was provided just before the jury said it was ready to deliver the verdict about 9:20 p.m. Friday Feb. 16. However, a defense lawyer said the insurance company for the ski company directed the jury verdict be received.

The plaintiff lost.  However, over the long holiday weekend his lawyers worked up a 54-page appeal to ask Reiss to enforce what they said was an undisclosed private settlement offer.  The defense maintains it was taken off the table before the verdict was announced.

Smiley admitted last week he did not have the case law with him to cite when the settlement dispute surfaced as the jury returned.

Smiley argued in court a valid final offer was made and he maintained there was no time limit provided by Okemo and Vail. He said it was undisputed the plaintiff accepted it. 

The only issue was whether the final offer was somehow revoked, Smiley said.  He said the plaintiffs provided no evidence it was withdrawn.

“The jury verdict is not taken for sport,” Curtis said.

Reiss said it was a difficult decision because there were declarations both ways about the final offer:  it was withdrawn and it wasn’t withdrawn.

She said contract law governs the case and there had to be a meeting of the minds:  an offer by one side and an acceptance by the other side.

The court was told during the trial by the primary defense lawyer Thomas P. Aicher of Rutland that nobody remaining in the courtroom that night had authority to accept the offer. 

Efforts were made to try to reach the insurance claims representative, Daniel Mitchell Jr., of AIG Insurance who had left the courthouse less than an hour before the verdict. Mitchell was reached by phone by attorney Caig May of Denver and was told to allow the verdict to come.

Reiss said during the hearing it was hard to understand why the insurance adjustor, would leave the courthouse that night if settlement talks were actually underway as the jury deliberated.

“There was no indication of what the terms of the settlement was, what the amount, would it be paid over time, would it be placed in an annuity, would it – how are medical bills going to be paid, was it only going to be the uninsured portion of the bills that were going to be paid, what would the release say,” Reiss told the lawyers as she ruled from the bench.

“None of that had been resolved, none of it put on the record.  There was no indication that there was a settlement, nothing to enforce,” the judge said.

“I feel for your clients, Mr. Smiley.  Mr. Grajeda seems to be an exceptional person.  I felt for his parents.  But I did not see a settlement in this case, and you told me unequivocally that there was no settlement, and on that basis the court accepted the verdict and rendered it on that basis,” Reiss said.

That’s when Grajeda yelled at the judge from the gallery, “They accepted it.”

After Grajeda was told he could not have any more outbursts, Reiss asked if there was anything else for the court.  She adjourned the hearing. 

Grajeda then sounded off on the lawyers.

Before the hearing, the defense had asked the court to reject Smiley’s “Motion to Enforce the Settlement,” which included his own seven-page declaration.

“Having gambled and lost his recovery on the prospect of the jury returning a $97-million verdict, plaintiff now makes a frivolous attempt to enforce a ‘settlement’ that he admitted to this Court never existed,” the defense said in court papers.

During a 5-minute hearing May 7, Judge Reiss and the lawyers all agreed the hearing last week would focus on legal arguments.  They said no testimony from witnesses was needed.

The settlement request, which had sought confidentiality, also never said how much Grajeda’s lawyers stood to gain.

Lawyers in personal injury cases often agree to take cases for between 33 and 40 percent of the outcome.  If the jury had provided the requested $97 million verdict that would mean a payout to the lawyers somewhere between about $32 million and about $39 million.

Still pending is a request by the defendants to have Grajeda cover some trial costs from the unsuccessful lawsuit brought by him and his lawyers.

The defense wants the plaintiff to pay $40,970 in fees for the printed transcripts prepared daily from the trial.

Smiley & Smiley, the law firm for Grajeda, said it was unfair to ask the injured skier to now pay for some of the costs for bringing the lawsuit.  Grajeda said he thought the case had been brought in good faith.

Grajeda, through Smiley & Smiley, has asked the Vail Resort to absorb the costs of the trial expenses.

Smiley & Smiley maintain Grajeda, 25, is unemployed and has been approved for $590 a month by Social Security for his disability.  He lives at home with his parents and does not have a car.

The legal dispute for the trial centered on whether Okemo and Vail were negligent in any way. The accident happened at the convergence of trails known as Open Slope and Lower Mountain Road.

The lead winning defense lawyer, Thomas P. Aicher from Cleary Shahi & Aicher in Rutland, had maintained in his closing arguments that Okemo did nothing wrong.

One of the key issues at trial was whether the 6-foot plus heavy foam blue padding for the snowmaking gun extended fully to the base of the pole. The lawsuit maintained Grajeda’s body came in direct contact with the bare and unprotected metal portion of the gun as he slid.

The Okemo Ski Patrol responded to the scene and provided medical aid. Grajeda, who said he had no lower body feeling, was airlifted to Dartmouth-Hitchcock Medical Center in Lebanon, N.H. where he spent a few weeks and learned he would never walk again, Smiley said. Grajeda later was moved to a rehabilitation facility and continues with rehab.

Aicher maintained Grajeda was facing the normal risks associated with skiing. He said snowmaking is required in Vermont for the sport to be successful. Aicher said Okemo works hard to make the sport safe.

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