Filed: Nov. 06, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 11-6-2008 Mavreshko v. Resorts USA Inc Precedential or Non-Precedential: Non-Precedential Docket No. 06-4403 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Mavreshko v. Resorts USA Inc" (2008). 2008 Decisions. Paper 256. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/256 This decision is brought to you for free and open access by the
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 11-6-2008 Mavreshko v. Resorts USA Inc Precedential or Non-Precedential: Non-Precedential Docket No. 06-4403 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Mavreshko v. Resorts USA Inc" (2008). 2008 Decisions. Paper 256. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/256 This decision is brought to you for free and open access by the ..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-6-2008
Mavreshko v. Resorts USA Inc
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4403
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Mavreshko v. Resorts USA Inc" (2008). 2008 Decisions. Paper 256.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/256
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4403
DMITRIY MAVRESHKO, a minor by his
parents and natural guardians;
IGOR MAVRESHKO, in their own right;
SVETLANA MAVRESHKO,
Appellants
v.
RESORTS USA, INC.; d/b/a Fernwood Hotel and Resort;
FERNWOOD RESORTS INC;
HRP CORPORATION;
TREETOPS, INC;
OUTDOOR WORLD CORPORATION
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 04-cv-00457)
District Judge: Honorable James M. Munley
Submitted Under Third Circuit LAR 34.1(a)
October 23, 2008
Before: RENDELL, SMITH, Circuit Judges,
and POLLAK, District Judge*.
(Filed: November 6, 2008 )
*Honorable Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
RENDELL, Circuit Judge.
Appellants Igor Mavreshko (“Igor”) and Dmitriy Mavreshko (“Dmitriy”) appeal
from the District Court’s order denying their motion for a new trial pursuant to Federal
Rule of Civil Procedure 59. The District Court entered final judgment on the jury’s
verdict in favor of appellees, Resorts USA, Inc. and Ha Ra Corp. d/b/a Fernwood Hotel
and Resort (collectively, “Fernwood”) and against Igor and Dmitriy. Dmitriy, a minor,
sued Fernwood claiming that he suffered permanent brain injury when he hit his head
while snow tubing at Fernwood’s snow tubing facility.1 Igor, Dmitriy’s father, sued
Fernwood in his own right claiming damages arising from Dmitriy’s injuries. Igor and
Dmitriy allege on appeal that the District Court abused its discretion in denying their
motion for a new trial because the jury’s verdict that Fernwood’s negligence did not cause
Dmitriy’s injuries was against the weight of the evidence presented at trial.
Appellant Svetlana Mavreshko (“Svetlana”) appeals from the District Court’s
order granting summary judgment in favor of Fernwood and against Svetlana’s personal
claim for damages arising from injuries to Dmitriy. On appeal, Svetlana alleges that the
1
As a minor, Dmitry sued by and through his parents, Svetlana and Igor. We will
refer to these claims as Dmitry’s claims, to distinguish them from Svetlana and Igor’s
individual claims.
2
District Court erred in holding that her co-signing of a liability release (“release”)
allowing Dmitriy to engage in snow tubing precluded her from suing to recover damages
arising from his injuries. For the reasons stated below, we will affirm the orders of the
District Court.
I. Background 2
This case arises from a snow tubing accident that occurred on the evening of
December 24, 2002, at a snow tubing facility operated by Fernwood in Bushkill, Monroe
County, Pennsylvania. The facility consisted of four snow tubing lanes separated by
dividing ice walls, called “windrows.” Dmitriy, then 13 years old, struck his head when
his snow tube hit a windrow, and he suffered permanent brain injury from the collision.
Fernwood required the Mavreshkos to sign releases before they were permitted to snow
tube. Igor and Svetlana each signed separate releases. Dmitriy signed a third identical
release which Fernwood required Svetlana to co-sign because Dmitriy was a minor.
On the evening of the accident, Fernwood’s employee, Travis Moya (“Moya”),
was the attendant at the bottom of the snow tubing hill. It was his responsibility to
retrieve items that snow tubers dropped while descending the lanes. Another Fernwood
employee, Christine Larsh (“Larsh”), was the attendant at the top of the hill, and it was
her duty to tell the patrons when to descend. Moya had been retrieving an item of
2
As we write for the benefit of the parties alone, we include only those facts necessary
for the disposition of this appeal.
3
clothing and was present in the lanes when Larsh permitted Dmitriy to descend the lane.3
The Mavreshkos filed a negligence action on March 2, 2004. Their theory of
liability was that Fernwood was negligent in the operation and design of the snow tubing
facility, including negligence on behalf of Fernwood’s employees for allowing Dmitriy to
snow tube while Moya was in the lane. The Mavreshkos alleged that Dmitriy collided
with Moya while he was in the lane, causing Dmitriy’s snow tube to careen into the
windrow.
The Mavreshkos and Fernwood filed cross motions for summary judgment based
on the releases that Igor and Svetlana signed and the release that Dmitriy signed and
Svetlana co-signed. On May 31, 2005, the District Court granted in part and denied in
part the cross motions for summary judgment. The District Court granted summary
judgment to Dmitriy and Igor on Fernwood’s affirmative defense of release, and granted
summary judgment to Fernwood on its affirmative defense of release to Svetlana’s
negligence claim.
The District Court held a jury trial from October 31, 2005, through November 8,
2005, on Dmitriy’s negligence claims by his parents and those of Igor in his own right.
Dmitriy and Igor presented the testimony of seven eyewitnesses. Six of their
eyewitnesses were friends or acquaintances of the Mavreshkos. Each of these six
3
Moya’s exact location was vigorously disputed. Fernwood contended that Moya was
straddling the windrow between Dmitriy’s lane and the bordering lane. Dmitriy and Igor
argued that Moya was obstructing the lane either by standing in it or walking across it.
4
eyewitnesses testified either that Dmitriy’s snow tube struck Moya or that the witness did
not see a collision, but that Dmitriy’s snow tube careened and hit the windrow
immediately after he passed Moya. Their seventh eyewitness was Larsh. Larsh testified
that: 1) Moya was straddling the windrow between two lanes; 2) at most his leg or foot
was present in the right side of Dmitriy’s lane; 3) she did not see Dmitriy’s snow tube
collide with Moya; and 4) Dmitriy’s snow tube followed the same angle and path that the
other snow tubes had followed after he passed Moya.
Fernwood denied that Moya was obstructing Dmitriy’s lane, that there was a
collision between Dmitriy and Moya, and that Moya caused Dmitriy’s accident.
Fernwood presented the testimony of one eyewitness, a third Fernwood employee,
Howard Foreman (“Foreman”).4 At the time of the accident, Foreman was coming to
relieve Moya, and was present at the bottom of the hill. Foreman testified that he
believed he was closest to and had the best view of the accident. He also testified that:
1) Moya was straddling the windrow; 2) Dmitriy and Moya did not collide; and
3) Dmitriy “dragged his left foot so hard that he spun the tube into the window.”
(App. 1157a). Fernwood argued that the inherent risks of snow tubing caused Dmitriy’s
accident.
The District Court provided a verdict form which presented the jury with two
questions: 1) Do you find the defendants were negligent?; and 2) Do you find that the
4
Neither Howard Foreman nor Christine Larsh still works at Fernwood.
5
defendants’ negligence was a factual cause of the plaintiffs’ injuries? The jury answered
the first question affirmatively, but answered “no” to the second question. On
November 9, 2005, the District Court entered judgment on the jury’s verdict for
Fernwood and against Dmitriy and Igor. Dmitriy and Igor filed a motion for a new trial
on November 22, 2005, under Federal Rule of Civil Procedure 59. On September 7,
2006, the District Court filed a memorandum and order denying their motion. The
Mavreshkos filed timely notices of appeal on October 6, 2006. Svetlana appeals from the
District Court’s grant of summary judgment against her claim of negligence. Dmitriy and
Igor appeal from the District Court’s denial of their motion for a new trial. This Court
has jurisdiction to hear these appeals pursuant to 28 U.S.C. § 1291.
II. Discussion
A. Denial of Motion for a New Trial
We begin with Dmitriy and Igor’s argument that the District Court improperly
denied their motion for a new trial. We review the District Court’s denial of a new trial
for abuse of discretion. Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290
(3d Cir. 1991).
The District Court may grant a new trial under Rule 59 if “the record shows that
the jury’s verdict resulted in a miscarriage of justice or where the verdict, on the record,
cries out to be overturned or shocks [the court’s] conscience.” Greenleaf v. Garlock, Inc.,
174 F.3d 352, 366 (3d Cir. 1999) (quoting Williamson v. Consol. Rail Corp.,
926 F.2d
6
1344, 1353 (3d Cir. 1991)). Dmitriy and Igor argued that they satisfied this standard
because 1) their evidence that Dmitriy collided with Moya greatly outweighed
Fernwood’s evidence that he did not, and 2) the jury’s finding that Fernwood’s
negligence did not cause Dmitriy’s injuries shocks the conscience in light of Fernwood’s
failure to dispute causation. The District Court held that the jury’s verdict was not against
the great weight of the evidence, stating, “[i]t is not a miscarriage of justice that the jury
decided to credit the defendants’ witnesses over the plaintiffs’ witnesses.” Mavreshko v.
Resorts USA, Inc.,
2006 WL 2583755, at *3 (M.D. Pa. 2006) (Mavreshko II).
Furthermore, the District Court found several grounds to support the jury’s verdict that
Fernwood was negligent, but that such negligence was not the cause of Dmitriy’s
accident.5
Id. at *3-4.
Dmitriy and Igor argue that the District Court abused its discretion in denying their
motion for a new trial because their eyewitnesses who testified that they saw Dmitriy
collide with Moya or saw his snow tube careen immediately after he passed Moya
constituted the great weight of the evidence. After a review of the record, we find no
5
The District Court’s examples included: 1) “The jury could have found that the
defendants were negligent in allowing the attendant in the lane, even if he were merely
straddling the lanes, but that his presence in the lane did not cause the accident;” 2) “The
jury could have concluded that failing to shut all the lanes [when Moya had gone into the
lane to retrieve a piece of clothing] was negligent, but that such negligence did not cause
Plaintiff Dmitriy’s accident;” 3) “The jury could have concluded that the hill was
negligently designed so as to obstruct the guards’ and guests’ view of the track and any
obstacles and that Fernwood failed to re-groom the lanes in a negligent manner,” but that
these actions did not cause the accident. Mavreshko II, 2006 WL 2583755, at *3-4.
7
reason to disturb the District Court’s ruling. As the District Court summarized:
Although plaintiff may have had more witnesses than the defendant on the
issue of how the accident occurred, it is uniquely the province of the
factfinder, here the jury, to choose who to believe and who not to believe . .
. [t]he jury could very well have concluded that [Dmitriy and Igor’s
eyewitnesses’] relationship with the plaintiffs colored their testimony. Both
sides presented witnesses who were cross examined and whose credibility
was impeached. It was the jury’s task to decide who was telling the truth.
Id. at *3 (internal citations omitted). The jury reasonably could have credited the
testimony that there was no collision.6
Dmitriy and Igor further argue that Fernwood failed to dispute causation, and that
the District Court abused its discretion in holding that the jury could properly conclude
that Fernwood’s negligence did not cause Dmitriy’s injuries.7 As the District Court
explained, the jury was presented with different theories of causation. Mavreshko II,
2006 WL 2583755, at *3 (stating, “[t]he jury could have credited the evidence that
indicated that the accident was caused by the defendant dragging his feet”). Under
6
As the District Court noted, even Larsh’s testimony did not “fully support the
plaintiffs’ position,” and even contradicted plaintiffs’ theory that an impact with Moya
caused Dmitriy’s accident. Mavreshko II,
2006 WL 2583755, at *3 n.1.
7
Dmitriy and Igor argue that because the jury found Fernwood negligent and because
Fernwood did not contest that Dmitriy sustained injuries, the jury had to find that
Fernwood caused the accident and thus Dmitriy’s injuries, because the defense did not
allege that Dmitriy was negligent. Under Pennsylvania law, the jury can reach its
conclusion that a defendant was negligent, but did not cause the plaintiff’s injuries,
without having to consider whether the plaintiff was contributorily negligent. Daniel v.
William R. Drach Co., Inc., 849 A.2d 1265, 1272 n.5 (Pa. Super. 2004). We do not agree
that Fernwood did not dispute causation.
8
Pennsylvania law, if other factors may have caused the plaintiff’s injuries, then the jury
may properly find that the defendant’s negligence was not the cause. See Daniel v.
William R. Drach Co., Inc., 849 A.2d 1265, 1269 (Pa. Super. 2004).
The District Court acted well within its discretion in denying Dmitriy and Igor’s
motion for a new trial. The record contains evidence from which the jury reasonably
could have made a number of alternative findings, including, inter alia, that there was no
collision between Dmitriy and Moya, or that Dmitriy caused his own injuries by dragging
his foot and causing the snow tube to hit the windrow. The record further supports the
jury’s conclusion that Fernwood was negligent but not a factual cause of the accident.
B. Release Barring Parent’s Claims for Minor Child’s Injury
On May 31, 2005, the District Court granted summary judgment to Fernwood as to
Svetlana’s claims. Svetlana raises two arguments on appeal: 1) “The release fails to
communicate to a parent who is co-signing her minor child’s “release” that, by
co-signing, the parent will be waiving the parent’s own claim for damages arising from
injuries the child sustains due to the facility’s negligence;” and 2) “Enforcing a child’s
release against a parent even after, as here, the district court holds that the release cannot
be enforced against the child is a truly absurd outcome.” (Appellants’ Br. at 17-18).
Svetlana did not raise these issues in the District Court and is therefore precluded from
arguing them on appeal.
Failure to raise an issue in the district court constitutes a waiver of the argument.
9
See Med. Protective Co. v. Watkins, 198 F.3d 100, 105 n.3 (3d Cir. 1999) (citing Brenner
v. Local 514, United Bhd. of Carpenters,
927 F.2d 1283, 1298 (3d Cir. 1991)); see also
Keenan v. City of Phila.,
983 F.2d 459, 471 (3d Cir. 1992) (holding that defendants
waived argument that evidence of financial condition is a prerequisite to punitive
damages award because they failed to present “the argument with sufficient specificity to
alert the district court”). In their motion for summary judgment, the Mavreshkos raised
only two arguments for the District Court’s consideration: 1) whether the release was
voidable because it was signed by a minor; and 2) whether the release was only applicable
to suits regarding equipment. Mavreshko v. Resorts USA, Inc.,
2005 WL 1309060, at *2
(M.D. Pa. May 31, 2005) (Mavreshko I). The District Court rejected Svetlana’s
argument that the release only barred claims “based on the selection, provision,
maintenance or use of the rented snow tube equipment.” (App. 101a). It held that “the
release is broad enough to cover the negligence asserted in the complaint,” and that
Svetlana’s signature on Dmitriy’s release under his signature barred her claims of
negligence.8 Mavreshko I,
2005 WL 1309060, at *5.
8
The District Court reviewed the relevant portions of the release that made it
sufficiently broad to cover the negligence asserted in the complaint, stating:
[T]he document is entitled: “RELEASE OF LIABILITY FOR
SNOWTUBING.” It provides: “I understand and am aware that
snowtubing is a HAZARDOUS ACTIVITY. I understand that
snowtubing and the use of snowtubes involves a risk of injury to any
and all parts of my body. I hereby freely and expressly assume and
(continued...)
10
Svetlana has not argued in her appeal that the District Court erred in concluding
that the release covered all negligence claims, rather than only those claims arising out of
the service, provision, maintenance, or use of the snow tube equipment. Instead, Svetlana
now asserts that her claim survives summary judgment because 1) the release did not
include specific language stating that Svetlana’s signature on Dmitriy’s release barred her
claims of negligence if Dmitriy sustained injuries while snow tubing, and 2) the release
must be unenforceable against Svetlana if it is unenforceable against Dmitriy. The
District Court did not have the occasion to address these issues; therefore, Svetlana has
waived them.
III. Conclusion
For the reasons set forth above, we will AFFIRM the District Court’s Order on all
grounds.
8
(...continued)
accept responsibility for any and all risks of injury or death while
participating in this activity.” The release proceeds to state: “I, the
undersigned, acknowledge that I have read this agreement and release
of liability and I understand its contents. I understand that my signature
below expressly waives any rights I may have to sue Operator for
injuries and damages.”
Mavreshko I, 2005 WL 1309060, at *2.
11
