This case arises from 13-year-old Jake Kaminski’s death from a ski accident at the Christmas Mountain Village resort in March 2023. Melissa Kaminski, who is Jake’s mother, and his sisters Mikayla and Jordan brought claims against the owner of Christmas Mountain, BlueGreen Vacations Unlimited, Inc. The Kaminskis contended that Jake’s death was caused by Christmas Mountain’s negligence in failing to properly mark and pad an electrical box near the site of Jake’s accident. The Kaminskis also brought claims for negligent infliction of emotional distress based on their distress at learning of Jake’s death.
Christmas Mountain filed a motion to strike the testimony of the Kaminskis’ liability expert, Larry D. Heywood.
Heywood opined that (1) Jake had the skiing skills to ski on the run he was on, including the cross-through trail, (2) Christmas Mountain breached its duties as a ski operator by failing to pad or mark the electrical box, and (3) Jake’s death was caused by the failure to mark or pad the electrical box because he hit the electrical box before hitting the tree.
However, Christmas Mountain contended that Heywood is not qualified to offer opinions on the cause of Jake’s injury and that his opinions are not the result of a reliable method applied to the facts of this case. Specifically, Christmas Mountain contended that Heywood’s opinion about the cause of Jake’s death is speculative and not based on either a scientific methodology or Heywood’s specialized experience in the winter recreation industry.
Snow and Ski Safety Expert Witness
Larry Dwight Heywood is a Snow and Ski Safety Consultant. Heywood previously worked in the ski industry as a ski patroller, director of ski patrol, and then director of mountain operations at a ski resort in California and now works as a consultant on operational and safety issues in the winter recreation industry.
Discussion by the Court
Heywood’s experience working in the winter recreation industry qualifies him to offer opinions about what conditions create safety hazards on a ski slope and the duty that Christmas Mountain owed to those skiing on the mountain. But nothing in Heywood’s report or work history shows that he has any training, special knowledge, or experience on which he based his opinion that Jake hit the electrical box before hitting the tree. To write his report, Heywood reviewed photographs of the scene and Jake’s skis, video of Jake skating, witness statements, and Christman Mountain’s discovery responses.
Heywood’s assertion that Jake hit the electrical box is based on two pieces of evidence from those materials: a statement from a bystander who did not see the crash but heard a metallic bang before seeing Jake lying on the ground and a dent in one of Jake’s skis. Heywood did not analyze the scene or electrical box in person and his report does not contain any analysis of photographs of the electric box itself. According to the Court, Heywood’s analysis of these two pieces of evidence applies nothing more than common sense to speculate that the metallic bang the bystander heard was Jake’s ski hitting the electrical box and that the dent in his ski must have been caused by the electrical box because that “type of damage only occurs when ski edges strike very hard materials like a rock or metal.”
Held
The Court granted Christmas Mountain’s motion to exclude testimony from Larry Heywood concerning causation. But the argument in Christmas Mountain’s motion did not justify its request that the Court preclude Heywood from offering any testimony at all.
Heywood may not testify that Jake struck the electric box before hitting the tree, but he may offer testimony consistent with his report on the other topics.
Key Takeaway:
To begin with, Heywood does not have any training or experience in accident reconstruction or materials science, and he did not consider whether any other hard objects on the mountain could have caused the dent or the metallic sound.
An opinion based on nothing more than common sense that would be obvious to a layperson does not assist the trier of fact in understanding the evidence or determining a fact in issue.
Case Details:
| Case Caption: | Kaminski, Melissa Et Al V. Bluegreen Vacations Unlimited, Inc. |
| Docket Number: | 3:24cv270 |
| Court Name: | United States District Court, Wisconsin Western |
| Order Date: | July 29, 2025 |
Leave a Reply