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4 UNITED STATES DISTRICT COURT 5 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6

7 MIROSLAVA LEWIS, CASE NO. 2:23-cv-00812-RSL 8 Plaintiff, v. 9 ORDER REGARDING PLAINTIFF’S FIRST SET OF MOTIONS IN 10 THE VAIL CORPORATION, LIMINE

11 Defendant. 12

13 This matter comes before the Court on “Plaintiff’s Omnibus Motions in Limine.” 14 Dkt. # 94. Having reviewed the memoranda, declaration, and exhibit submitted by the 15 parties, the Court finds as follows: 16 17 1. Evidence and Presentations in Openings 18 The parties agree that they may, during their respective openings, use Power Point 19 presentations and exhibits that counsel in good faith expects to have admitted into 20 evidence during trial. To the extent the parties intend to use any exhibit for which 21 22 admissibility is not stipulated, the parties will confer and attempt to resolve those disputes. 23 24 25 26 ORDER REGARDING PLAINTIFF’S FIRST SET OF 1 2. Workers’ Compensation Contributions 2 The Vail Corporation’s payments of insurance premiums for VR NW Holdings – 3 including workers’ compensation premiums – is irrelevant and inadmissible. This motion 4 5 is GRANTED. 6 3. Workers’ Compensation Immunity 7 The Court has already determined that The Vail Corporation is not entitled to 8 immunity from suit under Washington’s Industrial Insurance Act. The legal issue has been 9 10 decided, and defendant may not offer any evidence or argument to the contrary. To do so 11 would cause jury confusion, risk misleading the jury, and waste time. This motion is 12 GRANTED. 13 4. Employer Fault 14 15 Plaintiff seeks to exclude any evidence or argument that blames Stevens Pass 16 Resort, its agents, or its employees for plaintiff’s injuries. Although Washington law is 17 clear that the jury shall not be asked to determine the percentage of fault attributable to the 18 employer when it is immune from liability under the Industrial Insurance Act, The Vail 19 Corporation must be allowed to argue and show that it was the decisions and actions of 20 21 Stevens Pass employees that prevented upgrades to and/or safety net installation on the 22 Kehr’s chairlift and were the sole proximate cause of plaintiff’s injuries. This motion is 23 DENIED. 24

25 26 ORDER REGARDING PLAINTIFF’S FIRST SET OF 1 5. Untimely Affirmative Defense 2 In its answer, The Vail Corporation asserted affirmative defenses of comparative 3 negligence and that plaintiff’s damages were caused by third-party Stevens Pass Alpine 4 5 Club. Dkt. # 49 at 6. Plaintiff seeks to hold defendant to the affirmative defenses as 6 alleged, precluding it from arguing or submitting evidence that any persons or entities 7 other than plaintiff and Stevens Pass Alpine Club are at fault. Defendant failed to respond 8 to this motion in limine. 9 10 An affirmative defense precludes defendant’s liability even if plaintiff proves all of 11 the elements of her claim. In this case, defendant is not attempting to hold Stevens Pass 12 Resort liable for any portion of plaintiff’s injuries. In fact, it cannot do so given the 13 employer’s immunity under the Industrial Insurance Act. Its defense is arguably aimed at 14 15 showing that The Vail Corporation did not make any of the decisions that led to plaintiff’s 16 injuries and, therefore, that plaintiff cannot establish her negligence claim against it. 17 Negating elements of plaintiff’s claim is defendant’s right and need not be pled as an 18 affirmative defense. Zivkovic v. S. Cal. Edison Co.,

(9th Cir. 2002). 19 Even if defendant should have identified the employer as an at-fault party in its answer, 20 21 plaintiff has long known that The Vail Corporation denies having any involvement in the 22 hiring of Stevens Pass Alpine Club members as lift operators, the training of lift operators, 23 the operation of the Kehr’s lift on the day of the accident, or the decision to not install 24 safety nets on the Kehr’s lift. If necessary, the Court will grant defendant leave to amend 25 26 its answer under Fed. R. Civ. P. 15(b). This motion is DENIED. ORDER REGARDING PLAINTIFF’S FIRST SET OF 1 6. ANSI Standards 2 Plaintiff seeks to exclude evidence of the American National Standards Institute’s 3 standard for the design, manufacture, maintenance, and construction of ski lifts, ANSI 4 5 B77.1 – 2017 and ANSI B77.1 – 1960, on the ground that it is irrelevant because it does 6 not cover nets and fall protection from such structures. The motion is DENIED. Plaintiff 7 has argued in the past that The Vail Corporation should have replaced the Kehr’s lift in the 8 years following its purchase of Stevens Pass Resort because the lift had exceeded its 9 10 design life and had outdated safety mechanisms. This evidence rebuts that argument. If 11 defendant attempts to use the ANSI Standards to justify the lack of safety nets and fall 12 protection on the Kehr’s lift, plaintiff may point out the problems of that argument – and 13 identify the correct and applicable standards – on cross-examination. This motion is 14 15 DENIED. 16 17 Dated this 24th day of February, 2025. 18 19 Robert S. Lasnik 20 United States District Judge 21 22 23 24 25 26 ORDER REGARDING PLAINTIFF’S FIRST SET OF