By Mike Donoghue

BURLINGTON – A young New York man, who became a paraplegic after crashing into a snowmaking gun while skiing at Okemo Mountain Resort in Ludlow four years ago, has lost in his effort to obtain up to $88 million in damages from the sports resort.

A jury in U.S. District Court in Vermont has rejected negligence claims filed by Richard Grajeda III, 24, of Westbury, N.Y. against Okemo Mountain and its parent company, Vail Resorts Inc. and Vail Resorts Management Co. of Bloomfield, Colo. The jury deliberated for about seven hours before clearing Okemo and Vail late last Friday night. The lead defense lawyer, Thomas P. Aicher from Cleary Shahi & Aicher in Rutland, had maintained in his closing arguments that Okemo did nothing wrong.

But Grajeda’s lawyers filed a motion early this week claiming their client believed he had verbally accepted a pending undisclosed settlement offer just before the jury was due to announce its verdict. Grajeda’s lawyers now want Federal Judge Christina Reiss to enforce the alleged settlement.

The defense maintains resolution talks were over and there was no settlement offer pending when the jury returned its verdict.

Aicher told Reiss that he and another lawyer in the courtroom were “not in the loop” on the latest offer and they were without authority to settle, according to a preliminary transcript from Friday night.

Another defense lawyer, Craig May of Denver, Colo., reportedly said as the jury was about to report its verdict that he had just been directed by the insurance company to allow the verdict to be announced.

Plaintiff’s attorney Andrew J. Smiley maintains a “final offer” was given to him and three other lawyers for Grajeda after the jury began its deliberations. He said it came on behalf of Daniel Mitchell Jr. of AIG Insurance and Joy Posner of AXA XL, the insurance companies covering the resort.

May said in an email responding to the plaintiffs on Saturday night, “there was no pending offer, no acceptance, no settlement and there is nothing to enforce. Mr. Smiley acknowledged to the court that there was no settlement.”

The dollar amounts being discussed were never disclosed. A proposed settlement amount from Feb. 9, and a counteroffer from Feb. 12, are blacked out in the court papers.

The settlement request, which had sought confidentiality, did not say 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.

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

The legal dispute for the trial centered on whether Okemo and Vail were negligent in any way.

Grajeda filed a civil lawsuit seeking $50 million in October 2020, but by the time closing arguments were made to the jury last Friday, Smiley asked for $88 million.

He said his client has generated almost $665,000 in patient bills for his life-altering injuries The accident happened at the convergence of trails known as Open Slope and Lower Mountain Road.

Testimony indicated it was the fourth time skiing for Grajeda and he was with friends that day, but none observed the fall. He was making his second run of the day.

Grajeda admitted during his testimony that he had smoked cannabis shortly before hitting the mountain that morning.

The jury heard testimony from 29 witnesses and legal arguments from lawyers over 12 trial days.

One of the main issues at trial was whether the 6-foot plus heavy foam 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 assistance. 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 still 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.

Testimony showed Grajeda has ongoing issues with some bodily functions. His legs also often have spasms, and he uses a hand-powered wheelchair much of the time. Grajeda wears braces on his legs and does stand with the aid of a walker. The jury did see a video showing him using a walker to cross the stage to get his diploma during his graduation from the University of Alabama.

During the trial, one juror was removed the afternoon of Feb. 5 after he appeared to have fainted during the medical testimony of Dr. Jeffrey Perry. The trial was halted and Burlington Rescue was summoned to attend to the man, who had slumped over. He declined to be transported.

Reiss questioned the juror and after conferring with lawyers on both sides, made the decision to excuse him. The plaintiffs wanted him to continue as a juror, while the defense asked that he be excused. The defense asked for a mistrial, but Reiss rejected the motion.

A second juror was excused on Feb. 14 due to illness.

The verdict

The jury asked Judge Reiss about 8:45 p.m. Friday what would happen if they were deadlocked. Reiss urged the jurors to keep trying and said they would be allowed to return the following week, if needed. The jury went back to work.  Federal court normally closes at 5 p.m., but juries when deliberating are allowed to stay past closing.

However, Smiley, a lawyer for Grajeda, asked for a short break and when court resumed, Reiss was told that a pre-trial settlement offer had been made and that a phone call was attempted to the insurance company to see if it was still available. However, the parties learned it was off the table and the verdict was eventually announced shortly before 9:30 p.m., the preliminary transcript indicates.

The five men and five women on the jury cleared Okemo of any negligence.

Once it was delivered, Grajeda’s lawyers asked the judge to poll the individual jurors to confirm the defendant’s verdict. After the jurors were polled, Judge Reiss excused the parties about 9:30 p.m. No deadline was mentioned for post-trial motions.

But the plaintiffs worked over the holiday weekend trying to reverse the outcome and filed 54 pages of legal documents by late Monday night. They included an 18page “motion to enforce the settlement,” declarations by four lawyers for Grajeda on what they heard just before the verdict, an affidavit from the plaintiff saying he thought he had accepted a deal, two insurance letters, a partial transcript, a phone log and an email exchange after the verdict.

In their motion Smiley & Smiley also asked the court to direct any audio and video footage of the proceedings from Friday be preserved. They specifically ask for “the acceptance of the final offer by Ric and Andrew Smiley while in open court before the jury announced its verdict…”

The plaintiffs also want any audio or video coverage that captured conversations on the fifth floor of the courthouse regarding the settlement on Friday.

Grajeda’s lawyers had maintained Vail and Okemo, along with various employees, failed to properly operate, control, inspect and repair the facilities, including the snowmaking gun and that their client sustained catastrophic injuries. They also maintained that the snowmaking gun was improperly placed on the trail, that it was improperly wrapped with quality padding and there was inadequate staff to maintain it.

The jury saw otherwise, ruling that Grajeda had assumed the normal risks associated with the sport of skiing.

After the victory, Aicher, the lead defense lawyer who often represents top ski areas, referred questions to Okemo, which declined comment on the case.

A second attempt was made to get a comment from Okemo on Tuesday after the new legal claims about the settlement were filed. A spokeswoman said she would have to consult with management, but no response was received before deadline.

Aicher was joined by May and other lawyers Habib Nasrullah and Emily Linehan from the Denver, Col. law firm of Wheeler Trigg O’Donnell in defending the ski company and Vermont resort.

Eb Kinney Jr. of Brownsville, the longtime senior director of mountain operations for Okemo, was seated at the defense table throughout the trial.

Grajeda was represented by the New York City law firm of Smiley & Smiley. Attempts to to reach Andrew Smiley, the lead lawyer, was unsuccessful.

Andrew Smiley, in his closing argument on behalf of Grajeda, said his client is still interested in going to law school.

Smiley asked the jury in determining any potential damages to look at Grajeda’s potential lifetime earnings as a lawyer and also if he did not go to law school. He urged the jurors to use the higher rate because the future is unknown, and this was the one chance to try to make amends for Grajeda.

Testimony from an expert on behalf of Grajeda said he was likely to live for another 54.7 years, Smiley noted in his closing.