Kyle Deitrich v. Ward Sand & Materials, et als, Docket No.: BUR-L-213-13

A Burlington County Superior Court jury recently returned a defense verdict after a three-week trial in the matter of Kyle Deitrich v. Ward Sand.

On February 11, 2011, Kyle Deitrich was 17 years old and was riding his ATV on the Ward Sand property in Burlington County, New Jersey.   He testified that although it was Ward Sand property, he had ridden there hundreds of times on the past and he did not necessarily know he was trespassing.

The Ward Sand property is almost 500 acres in the Pinelands of New Jersey and is underdeveloped, natural land with the exception of two acres in the middle of the property that consist of the operational quarry.   Ward Sand had a difficult time as a defendant contesting the fact that the property was constantly trespassed on by ATV riders after hours who accessed the property without consent.   Despite some “No Trespassing” signs, “Wards” was known in the community as a place to ride ATVs and motorbikes.

Prior to the trial, during the course of discovery, Rawle & Henderson LLP learned that someone had even created a “Wards” Facebook page to post photographs of the terrain and videos of ATV riders.   In addition, there are a number of YouTube videos depicting motorcycles and ATV riders accessing the property.

When Kyle Deitrich decided to ride his ATV on Ward’s property on February 11, 2011, he entered the property at dusk.   He rode up a stockpile he had been riding up for years, expecting to find a gradual slope, but instead it had been cut away.   Deitrich went off the side of the pile and was severely injured.   He was airlifted from the site but survived with significant brain trauma.   Experts testified that the severe and permanent cognitive deficits he suffered would prevent him from working in any full-time capacity for the balance of his life.

During the course of discovery, Rawle & Henderson LLP learned that Kyle Deitrich had a Facebook page.  On that Facebook page, he often posted pictures of himself riding.   We moved the Court for that Facebook page.   Our motion was granted so that plaintiff had to provide the non-public portions of the page that may have dealt with riding both before and after the accident.

We learned that Deitrich went back to riding his ATV not too long after the accident despite his brain injury and physical limitations.   In addition, we discovered that Deitrich wrote under his own name on an ATV forum where he would write about riding and at one point indicated that it was “illegal” to ride at Ward Sand.   The various internet investigations and searches of this young plaintiff proved very helpful.

There is a New Jersey statute on point which we believed addressed the situation.   The New Jersey statute had not been cited before in any New Jersey case, but suggested no owner of real property shall assume responsibility for any ATV vehicle unless the operation or use if it is with the express consent of the owner.   However, that statute (N.J.  Stat.  § 39:3C-18) does not limit the liability that would exist for the willful creation of a hazardous condition.

As a result of the statute, we filed a motion for summary judgment, contending that plaintiff’s admission as a result of requests for admissions and his testimony during his deposition suggested that he did not have the express consent of the owner.  In addition, we argued that the statute had to preempt and supersede any traditional duties under common law.

The trial court expressly disagreed, finding in part that the statute may not apply because there were issues as to whether plaintiff had express consent to enter the property and the statute acts as immunity only after liability is established under common law.   In addition, the court held that the defendant may have willfully created a hazardous condition negating the protections of the act.

We filed for reconsideration and the Judge again denied our motion and we proceeded to trial.  Plaintiff’s counsel’s settlement demand was $3 million prior to trial and never changed during the trial of the case.   No offer was made over $100,000.

At trial, plaintiff established that there were trespassers constantly and consistently on the Ward Sand property, including Kyle Deitrich and his father.   As a result, they were entitled to a “constant trespasser charge,” which raised the level of duty for Ward Sand.  Plaintiff also presented expert testimony that Ward Sand violated provisions of MSHA (and its New Jersey equivalent) which governed the quarry.

We moved again for a directed verdict to foreclose plaintiff’s suggestion that an employee had once said it was “ok to ride there,” as this was not the express consent required under the statute and plaintiff had failed to establish that Ward Sand willfully created the hazardous condition.   The court again denied our motion (for the third time), even suggesting that the case may be worthy of punitive damages.

The Court presented the jury with the following questions:

* Did plaintiff have the express consent of Ward Sand to enter and use the property?
*Did defendant willfully create a hazardous condition without reasonable care for plaintiff’s safety?
*Was the defendant’s action a proximate cause of plaintiff’s injury?
*Did defendant breach its duty to plaintiff and is therefore negligent?
*Was defendant’s action a proximate cause of plaintiff’s injury?
*Was plaintiff negligent?
*Was plaintiff’s action a proximate cause of plaintiff’s injury?
*Taking the negligence of both plaintiff and defendant, assign a percentage of negligence to each party.

The jury returned after lunch and approximately an hour of deliberations with the first two questions answered in the negative.   In other words, the jury did what the court would not legally do.   The jury applied the statute as written despite the court’s constant denial of our attempts to raise this issue.

Despite not dropping their demand from $3 million at any time during the course of trial, plaintiffs did not appeal the decision of the jury.