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, should not be given two bites at the apple to try to have the sports resort pay for his injuries, according to resort lawyers.

Novice skier Richard Grajeda III, 24, of Westbury, N.Y. had asked federal court jurors in Burlington last month to award him up to almost $97 million, but when they rejected the claim with a defendant’s verdict, his lawyers demanded a judge force the resort to pay its last best settlement offer.

“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 response this week to the request filed by Grajeda’s lawyers.

“There was no offer, no acceptance, no meeting of the minds, no oral agreement. In short, there is no basis for the relief that plaintiff seeks beyond the fact that he charted what proved to be a calamitous litigation course and now wants to escape its consequences,” they said.

The response was filed by Michael J. Curtis, a New York City lawyer, and Joel Iannuzzi of Cleary Shahi & Aicher in Rutland, who are handling the post-verdict motions.

The dispute will likely come down to the “Final Offer” and when it was on and off the table. The proposed settlement amounts have never been 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, 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.

It was unclear when trial Judge Christina Reiss might rule on the cross motions or whether she will order a court hearing for legal arguments. The defense asked that if the dismissal motion is not approved based on the filings, it wants an evidentiary hearing.

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. The accident happened at the convergence of trails known as Open Slope and Lower Mountain Road.

Grajeda 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.

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

The jury deliberated for about seven hours on Feb. 16 before clearing Okemo Mountain and its parent company, Vail Resorts Inc. and Vail Resorts Management Co. of Bloomfield, Col. The lead defense lawyer, Thomas P. Aicher from Cleary Shahi & Aicher in Rutland, had maintained in his closing arguments that Okemo did nothing wrong.

Grajeda’s lawyers filed a motion three days later claiming their client believed he had verbally accepted a pending undisclosed settlement offer just before the jury was due to announce its verdict. The plaintiff filed 54 pages of legal documents, including an 18-page “motion to enforce the settlement” asking Reiss to require payment of the undisclosed alleged settlement. 

Okemo’s lawyers filed a 19-page rebuttal this week. They disputed there was ever an agreement on the table when the jury — five men and five women from northern Vermont — was about to return to the courtroom with its verdict.

Attached to the motion is a two-page affidavit from Daniel Mitchell Jr. of AIG Claims outlining some of the steps at trying to resolve the case before the jury ruled. Mitchell’s affidavit said he made a new “Final Offer” offer about 2:30 p.m. shortly after the jury began to deliberate, but Smiley did not accept it and instead countered with a higher offer that was rejected.

Mitchell said about 4:45 p.m. the jurors asked to have testimony reread to them. It was testimony by Ray Kennedy, the former head of snowmaking at Okemo and the only known witness to the accident.

By 6:11 p.m. the jurors asked the court for some clarity about certain terms involving the Vermont Sports Injury Statute and the defendant’s negligence, court records show. 

Mitchell’s affidavit noted that he believed the notes from the jurors indicated they were leaning toward a defendant’s verdict. Joy Posner, of AXA XL, an excess insurance carrier that was providing coverage, had conversations with Smiley and reiterated the Final Offer, Mitchell wrote.

“It is my understanding that she expressed her view that the plaintiff should accept the Final Offer because of the questions concerning liability and the prospect of a defense verdict which would leave him with nothing,” Mitchell wrote.

He said Smiley rejected the Final Offer and continued to push for higher payout. Mitchell said the jury reported about 8:20 p.m. that they believed they were deadlocked, but Judge Reiss, who has been on the federal bench for more than 14 years, gave them a pep talk and urged them to keep trying. She noted that another jury would struggle over the same issues.

Mitchell said before he left the courthouse about 9 p.m., Smiley spoke to him in private. Mitchell said in his sworn affidavit that at no time during the talk did he indicate the Final Offer remained open or was available.

“Instead, in view of the jury’s notes, each of which made the prospect of a defense verdict more likely, I withdrew the Final Offer by telling Mr. Smiley that I wanted to hear from the jury before having any further settlement talks,” Mitchell wrote in his affidavit.

He said about 9:15 p.m. he learned the jury had a verdict and one of the defense lawyers Craig May of Denver, Colo. reached out to him to say the plaintiff “wished to settle the matter for an amount equal to the Final Offer. As there was every indication that the jury would be returning a defense verdict, and consistent with my last in-person conversation with Mr. Smiley, I instructed Mr. May to take the verdict,” Mitchell said.

In the plaintiff’s motion, Smiley said he had tried to tell Reiss his client wanted to accept the “Final Offer” but when he returned to the courtroom, he said it had apparently been pulled off the table.

Curtis and Iannuzzi, on behalf of Okemo and Vail, said Smiley never said another word or protested the action in court. Instead, they noted Smiley allowed the verdict to be reported.

“Plaintiff’s counsel again, tellingly made no record or mention of the relief he now seeks,” the defense noted.

As the jury was about to report, Aicher told Reiss he and May had no authority to settle the case. Mitchell confirmed that statement in his affidavit that Aicher and May lacked any legal authority to accept the settlement on behalf of the insurance company.

The defense maintains Smiley is stuck with the verdict.

“Elementary canons of contract law likewise require denial,” Curtis and Iannuzzi wrote. “In sum, no fact, no principle of law or equity, and no public policy supports plaintiff’s position. He must sleep in the bed he made.” they said.

Curtis and Iannuzzi also questioned what if the shoe was on the other foot.

“To further illustrate the inequity of this gamesmanship, consider how plaintiff would react if the jury had returned a runaway $97 million verdict that he requested in summation and defendants refused to satisfy it on the grounds that they had accepted plaintiff’s far lower pre-verdict settlement demand, despite affirming to the court before the verdict that they had rejected it,” they wrote.

“Plaintiff’s two-bites-at-the-apple, heads-I-win-tails-you-lose approach is meritless, unfair and impracticable,” Curtis and Iannuzzi wrote. 

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 morning.

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.

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

One of the key 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 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 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.