Case 3:12-cv Document 1 Filed 03/01/12 Page 1 of 15

Transcription

1 Case :-cv-000 Document Filed 0/0/ Page of SULLIVAN LAW A Professional Corporation J. D. SULLIVAN, NV Bar No. GENE M. KAUFMANN, NV Bar No. 0 Highway, Suite 0 Minden, Nevada Telephone: () - Telecopier: () - Attorneys for Plaintiffs, Elisabeth Benschop and Calvin Fitzgerald 0 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 0 ELISABETH BENSCHOP and CALVIN FITZGERALD, husband and wife, vs. Plaintiffs, VAIL RESORTS, INC., a Delaware Corporation; HEAVENLY VALLEY, LIMITED PARTNERSHIP, a Nevada limited partnership; ANDREA RAMOS, an individual; and DOES through 0, inclusive, CIVIL COMPLAINT FOR NEGLIGENCE, RESULTING IN BRAIN INJURY, EMOTIONAL DISTRESS AND LOSS OF CONSORTIUM DEMAND FOR TRIAL BY JURY Defendants. / COME NOW PLAINTIFFS, ELISABETH BENSCHOP and CALVIN FITZGERALD, by and through their undersigned counsel, and files this Complaint against the above-named Defendants, averring and alleging as follows: ///

2 Case :-cv-000 Document Filed 0/0/ Page of 0 0 BACKGROUND. This case involved another in a continuing pattern of skiing accidents at Heavenly, caused by Vail s youthful foreign national employees, who are hired seasonally as allowed by the State Department s J- Visa Program. These foreign employees are offered low wages, free season ski passes, discounted food and merchandise, helmets and medical insurance, and thus lured by Vail to travel to the United States and work cheaply at Defendants ski resorts, like Heavenly. However, the foreign employees are not provided with liability insurance, at least not by Vail or Heavenly, so after they crash into other resort guests, seriously injuring them, and return to their home countries, the injured guests have no recourse against the foreign employee who caused the injuries. Being young and a foreign national, soon leaving the United States, there is virtually no chance that injured ski area guests can recover any damages from the foreign employees for injuries suffered. A. If the foreign employee happens to be working and on the clock at the time of the accident, then Vail, on information and belief, assumes responsibility for the injuries, as is typical of an employee-caused accident. This was the case when Heavenly guest, Kimberly Bland ( Kim ) was crashed into, on the Olympic Downhill ski run, by young snowboarding Heavenly foreign employee, Daniel Barreno (from Peru) on January, 0, severely injuring Kim. Kim has still not recovered from surgery arising from that On information and belief, Mammoth Mountain Ski Resort provides its employees with liability insurance. Vail Resorts should step to the plate and do the same. - -

3 Case :-cv-000 Document Filed 0/0/ Page of 0 0 accident. Since Mr. Barreno was working at the time, Heavenly is apparently assuming liability. That claim has yet to be resolved. B. Now, however, on February, 0, just months later, on the same Olympic Downhill ski run, another young snowboarding Heavenly foreign employee and defendant herein, ANDREA RAMOS, aged 0 (from Brasil, on information and belief), has crashed into another Heavenly guest, plaintiff ELISABETH BENSCHOP ( Elly ), knocking Elly unconscious, just as Mr. Barreno knocked Kim unconscious in January 0, and resulting in more serious personal injuries. However, Vail and Heavenly are taking the position that Elly is on her own against Ms. Ramos, who is scheduled to return to her home country on March, 0, and that Elly should try and collect her thousands of dollars in ambulance, ER and CT Scan billings, plus future treatment and disability costs from young Ms. Ramos personally! Vail refuses to acknowledge any responsibility for this accident, stating to Elly s husband Cal that this is a skier-to-skier accident and is no fault of Vail s! C. However, it is Vail and Heavenly who, on information and belief, have a special relationship with their very dependant foreign employees and facilitated, fostered, and created the very skiing and boarding hazards complained of herein by, inter alia: ) soliciting foreign employees, ) offering free season ski passes for the foreign employees to use when they are off duty at the Heavenly/Vail resorts, ) offering discounted merchandise, food and beverages to the foreign employees, ) arranging for reduced See attached Exhibit Vail website solicitation of seasonal workers through its J- partner companies. - -

4 Case :-cv-000 Document Filed 0/0/ Page of 0 0 cost housing for the foreign employees, and ) providing inadequate training and instruction to the foreign employees on skiing and boarding skills and on the primary necessity of strictly following the Heavenly Responsibility Code (Exhibit hereto), as well as the National Ski Areas Association s Responsibility Code ( Code ), established in : Safety on the slopes is everyone's responsibility. Ski safely-not only for yourself, but for others as well. Always stay in control and be able to stop or avoid objects. People ahead of you have the right of way. It is your responsibility to avoid them. Do not stop where you obstruct the trail or are not visible from above. Whenever starting downhill or merging into a trail, yield to others. Always use devices to help prevent runaway equipment. Observe all posted signs and warnings. Keep off closed trails and out of closed areas. Prior to using any lift, you must know how to load, ride, and unload safely. D. As a result, Defendants are liable to Plaintiffs for the injuries suffered on February, 0, when snowboarding foreign employee, Andrea Ramos ( RAMOS ), violated NRS A.0, while negligently or recklessly boarding out of control down Olympic Downhill ski run, on the Nevada side of the mountain, crashing headlong into Elly, knocking her unconscious. /// - -

5 Case :-cv-000 Document Filed 0/0/ Page of 0 0 E. RAMOS was negligent per se and her employer(s), Defendants VAIL RESORTS, INC. and/or HEAVENLY VALLEY, LIMITED PARTNERSHIP, are vicariously liable for RAMOS negligence, and directly liable due to their negligent instruction and training of RAMOS, after having provided her with free snowboarding access to the resort. JURISDICTION AND PARTIES. This case and controversy arises under the substantive laws of the State of Nevada.. This Court has original diversity of citizenship jurisdiction of this case under U.S.C.. Elly is a citizen of Holland and legal resident of the United States and Douglas County, Nevada. Her husband, CALVIN FITZGERALD ( Cal ), is citizen and resident of the State of Nevada, living in Douglas County. Defendant VAIL RESORTS, INC. is Delaware corporation with its principal place of business in Colorado. Defendant, HEAVENLY VALLEY, LIMITED PARTNERSHIP, is a Nevada limited partnership, whose general partner is VR HEAVENLY I, INC., a Colorado corporation, with its principal place of business in Colorado. Defendants VAIL RESORTS, INC. and HEAVENLY VALLEY, LIMITED PARTNERSHIP are collectively referred to herein as Heavenly. Defendant RAMOS is, on information and belief, a temporary foreign resident of the State of California, and citizen of Brasil. The amount in controversy exceeds, exclusive of interest and costs, the sum of $, For purposes of diversity, it is the partner s citizenship that is determinative. Carden v. Arkoma Associates, U.S., (0). The location of the partnership s business is irrelevant to subject matter jurisdiction. Lincoln Property Co. V. Roche, U.S., (00). - -

6 Case :-cv-000 Document Filed 0/0/ Page of 0 0. The true names and/or capacities of Defendant DOES through 0, are unknown to Plaintiffs, who therefore cannot identify them at this time. When the true identities and/or capacities of DOES through 0 are ascertained, Plaintiffs will seek leave of court to amend this Complaint to reflect the same.. Plaintiffs are informed and believe, and based thereon allege, that each of the Defendants is, and at all times herein mentioned was, the agent, servant, and employee of each of the remaining Defendants, and each of the acts or failures to act of each of the Defendants, as herein alleged, was within the course and scope of each such Defendant s authority as such agent, servant, and employee, with the permission, consent, knowledge, prior authorization, and subsequent ratification of each of the remaining Defendants.. Venue is proper in the District of Nevada, under U.S.C. (a), in that a substantial part of the events or omissions giving rise to the within claim took place in Douglas County, in the State of Nevada. FIRST CAUSE OF ACTION (Elly s Negligence and Negligence Per Se Claims against all Defendants). Plaintiffs reallege Paragraphs through and incorporate same herein by reference, as though expressly set forth herein.. On February, 0, at approximately : a.m., Plaintiff Elly was severely injured by Heavenly employee Defendant RAMOS.. RAMOS was a Heavenly foreign employee, as discussed above, who, on information and belief, was snowboarding in the course and - -

7 Case :-cv-000 Document Filed 0/0/ Page of 0 0 scope of her employment, when she failed to board under control and to watch where she was going, thereby crashing into Elly, a Heavenly season pass holder, who was skiing slowly down the Olympic traverse on Olympic Downhill run, in obedience to restrictive signage, gates, and a yellow-jacketed Heavenly monitor employee above the Stagecoach base area. 0. As an employee of Heavenly, RAMOS was well aware, or should have been made well aware by Heavenly, of the posted rule that downhill skiers, i.e., skiers ahead, have the right of way. In addition, under NRS CHAPTER A, Skier and Snowboarder Safety, Section A.0, Duties of skiers and snowboarders, provides that: A skier or snowboarder shall, to the extent that the matter is within his or her control:.... Heed warnings and other information posted by an operator;.... Maintain a proper lookout and control of his or her speed to avoid downhill objects, skiers and snowboarders to the best of his or her ability; and. Conduct himself or herself in such a manner as to avoid injury to persons and property in a snow recreation area. Indeed, Heavenly s lift towers even display warning signs which explicitly state, e.g., Rule #, People Ahead of You Have the Right of Way. This is part of the skier s Responsibility Code, summarized at Exhibit hereto, and displayed by Heavenly at its ski area. RAMOS violated the first two rules thereof, i.e., she failed to stay in control and she failed to give Elly, who was ahead of her on the trail, the right of way. RAMOS also - -

8 Case :-cv-000 Document Filed 0/0/ Page of 0 0 violated Rule, by failing to observe the large orange and yellow warning signs, just above the collision site, which respectively read, YOU ARE NOW ENTERING A SLOW SKIING/RIDING AREA (Black on yellow) and, SLOW (black on orange). See Exhibit photo attached hereto.. RAMOS, in violating NRS A.0, was therefore negligent per se, as was her employer at the time, Heavenly, through agency, vicarious liability, respondeat superior, and special employee relationship. In effect, Heavenly itself crashed into Elly. Heavenly was additionally negligent for failure to properly supervise, train, educate, monitor, and control RAMOS in her boarding ability and conduct while on the mountain, thus putting Plaintiffs and other Heavenly guests at extreme risk of injury. RAMOS unsafe, out-of-control boarding, was a proximate cause of the accident. Elly was properly skiing on the mountain, in a safe place on the run, below the Exhibit warning signs, where she could be easily observed by uphill skiers/boarders, who were moving at a prudent speed and Elly violated no rules or laws. Elly had an expectation of safety and security at the collision site, due to the above-stated signage controls, gates, and yellowjacketed Heavenly safety employee stationed just above the crash site.. By reason of RAMOS and Heavenly s negligence, as aforesaid, and as a direct and proximate result thereof, Elly received injuries consisting of, but not limited to, loss of consciousness for approximately minutes, a Grade IIIb concussion and likely brain injury, as well as pain to her shoulder, neck and back. - -

9 Case :-cv-000 Document Filed 0/0/ Page of 0 0 According to the American Academy of Neurology concussion guidelines, based upon those of the Colorado Medical Society, a grade IIIb concussion involves prolonged loss of consciousness (measured in minutes) and can result in permanent brain injury.. After Elly was knocked unconscious by the collision with RAMOS and she was transported downhill on a sled by the Ski Patrol and taken by ambulance to the Barton Memorial Hospital Emergency Room. There she was diagnosed with concussion and brain injury subsequent to her loss of consciousness and crash suffered at Heavenly.. On or about February, 0, Elly consulted with Carson City Neurologist, Andrew Rice, M.D., Ph.D., who diagnosed the Grade IIIb concussion.. In addition to the serious physical injuries, Elly has suffered severe emotional distress as a result of the accident, and is suffering headaches, dizziness, nausea and crying episodes, worrying that she may have suffered a permanent brain injury. She is also extremely worried about her prospects for recovering and being able to seek gainful employment. She has sleep loss since the accident and concerned about her future ability to enjoy the quality of life, such as skiing, sailing, and snorkeling which she participated in with her husband before the accident. Presently, she is afraid to return to skiing.. As a further direct and proximate result of the Defendants negligence, as herein alleged, Elly was required to and has employed physicians and others for medical examination, treatment and care of said injuries, and incurred medical and incidental expenses, which shall be shown according to proof at the - -

10 Case :-cv-000 Document Filed 0/0/ Page 0 of 0 0 time of trial.. As a further, direct and proximate result of the Defendants negligence, as herein alleged, the injuries thus received by Elly greatly impaired her health, strength, and activity, and caused her great mental, physical, and nervous pain and suffering, and shock to her nervous system, damaged earning capacity and loss of wages, damaging Elly in an amount which shall be shown according to proof at the time of trial. SECOND CAUSE OF ACTION (Loss of Consortium and Emotional Distress against all Defendants). Plaintiffs reallege Paragraphs through and incorporate same herein by reference, as though expressly set forth herein. 0. By reason of the aforesaid wrongful acts, negligence, violation of statutes, violations of rules, and other failures of Heavenly and RAMOS, as set forth herein, and as a direct and proximate result thereof, Plaintiffs, husband and wife, suffered and continue to suffer loss of consortium, society, companionship, and natural and physical affection, due to the injuries suffered by Elly.. In addition, Calvin suffered bystander emotional distress at and after the time of the accident, having been in the zone of danger and almost hit by RAMOS himself, after RAMOS crashed through Ely. WHEREFORE, Plaintiff pray for judgment against the Defendants, and each of them, as follows:. For damages in excess of $,000.00;. For reasonable attorney s fees and expenses; - 0 -

11 Case :-cv-000 Document Filed 0/0/ Page of. For costs of investigation and litigation reasonably incurred;. For prejudgment interest;. For costs of suit herein incurred; and,. For such other relief as the court deems just and proper. 0 0 Dated: March, 0 SULLIVAN LAW A Professional Corporation By: /s/ J. D. SULLIVAN Attorneys for Plaintiffs, ELISABETH BENSCHOP AND CALVIN FITZGERALD - -

12 Case :-cv-000 Document Filed 0/0/ Page of DEMAND FOR TRIAL BY JURY Plaintiffs hereby demand trial by jury in the above entitled action, of all issues so triable, pursuant to FRCP Rules and, and related case law. 0 0 Dated: March, 0 SULLIVAN LAW A Professional Corporation By: /s/ J. D. SULLIVAN Attorneys for Plaintiffs, ELISABETH BENSCHOP AND CALVIN FITZGERALD - -

13 Case :-cv-000 Document Filed 0/0/ Page of Exhibit

14 Case :-cv-000 Document Filed 0/0/ Page of Exhibit

15 Case :-cv-000 Document Filed 0/0/ Page of Exhibit