Ski Safety Expert was Allowed to Opine on the Use of Blue Fencing

This case arises from a skiing accident that occurred at Mountain Creek’s ski resort (“the Resort”). On February 21, 2021, Pierino Perciballi and his sixteen-year-old son Matteo Perciballi chose to ski down the Matchmaker trail, an intermediate difficulty terrain park course contained within the Resort. The Matchmaker trail is adjacent to the Resort’s “learning area.”

Mountain Creek uses blue, mesh fencing to separate Matchmaker trail from the learning area. In his descent down Matchmaker trail, Perciballi collided with this blue fencing, tangling his legs and violently falling to the ground. This collision caused him to sustain significant injuries, requiring four days of hospitalization and leaving him with an ongoing disability. 

Plaintiffs filed this case on February 17, 2023, alleging two causes of action: (1) negligent management and design of the Resort resulting in Mr. Perciballi’s injuries, and (2) loss of consortium on behalf of his wife Brigida R. Perciballi.

Defendants filed a motion to preclude Plaintiffs’ expert witness, Richard Penniman.

Ski Safety Expert Witness

Richard C. Penniman has been a consultant to the ski industry since 1983, and has been qualified as an expert on, inter alia, slope design, snowmaking and impact mitigation in numerous state and federal courts across the United States. He is a member of numerous ski organizations and has lectured extensively on the topic of ski safety. Penniman has served as an Adjunct Instructor at Sierra Nevada College where he taught Ski Area Mountain Operations and Safety for nine (9) years. Penniman has also published numerous peer-reviewed articles on ski safety

Want to know more about the challenges Richard Penniman has faced? Get the full details with our Challenge Study report.

Discussion by the Court

A. Penniman’s unannounced inspection of the Mountain Creek Resort does not justify barring his testimony

Mountain Creek’s first argument against the admissibility of Penniman’s decision does not challenge the sufficiency or applicability of his expertise; rather, it asked the Court to exclude Penniman’s opinion as a sanction for failing to follow Fed. R. Civ. P. 34(a)(2).

In his deposition, Penniman admitted to taking an unannounced trip to the Resort in March 2023, where he conducted an examination of the Resort’s grounds to assess the site of the accident and the Resort’s safety procedures in general.

When determining whether to impose a discovery sanction, the movant must first show that there has been a violation of the rules of discovery or the orders of the Court. Plaintiffs argued that there was no need for Penniman to get special permission from Mountain Creek to investigate a publicly accessible location, even if that location was owned by Mountain Creek.

The Court held that where the premises are open to the public and the inspecting party has permission to enter (and does not deviate from the parameters of the permission), parties are not required to seek approval prior to inspection under Rule 34, unless the inspection poses a greater, articulable danger or burden to the business, employees, or other visitors than is expected of a typical visitor.

Applying this rule, Penniman acted in almost every way as an ordinary skier. Even if Penniman’s inspection was a discovery violation, Mountain Creek did not sufficiently argue that exclusion was warranted. Though Mountain Creek claims it is “severely prejudiced” by the unannounced inspection, the only prejudice it cited is that it was “not present to observe the inspection,” or able “to document the conditions observed or observable on that date.”

B. The Penniman Report is sufficiently reliable to assist the jury and will not be excluded

Mountain Creek’s second argument for precluding Penniman’s testimony and report from the jury is that he lacks a reliable foundation for his opinion. Mountain Creek sought to exclude the following topics from Penniman’s opinion: (1) the “use of blue fencing” in the skiing industry; (2) the role, if any, shadows played in causing the accident; (3) how most North American ski resorts organize their ski trails; and (4) whether the “progression area” used to train new skiers is a hazard when placed next to a trail for more experienced skiers.

1. Penniman is permitted to testify to the relative advantages of fence coloring at different ski resorts

In his expert report, Penniman discussed the significance of fencing colors on the safety of skiing trails. According to Penniman, “blue fabric fencing such as that with which Mr. Perciballi became entangled can be very difficult to discern from shadows on the snow surface later in the day,” and for that reason the industry standard is that “any fencing, hazard marking or safety signs be brightly colored and highly visible so as to attract attention.”

However, Mountain Creek believed that this testimony lacked “factual evidence from the record in this case,” and is instead “based solely on his personal experience and limited discussions with ski patrollers.”

The Court disagreed. Penniman’s report and testimony contain sufficient foundation. It is uncontested that: (1) Mountain Creek used blue fencing at the time of the accident; (2) Plaintiffs’ accident happened in the afternoon; (3) Penniman made an inspection of the site of the accident and observed the shadow cover of the area in the afternoon; (4) at least some ski resorts in North America use brightly-colored fencing; and (5) Penniman claimed, in his professional experience, use of brightly-colored fencing is standard. This is a sufficient factual foundation whereby a reasonable jury could find that such a standard exists, should they credit Penniman’s testimony.

2. Penniman may not testify that the shadows ’caused’ Plaintiffs’ accident

The Penniman Report also assesses the role that shadows play in terms of hazardous course conditions while skiing, both in general and in how it contributed to Plaintiffs’ accident in particular.

Mountain Creek challenged the admissibility of these claims on two grounds. First, it argued that Penniman improperly opined on the cause of an accident he was not present to witness and of which has no personal knowledge. Second, Mountain Creek interpreted Penniman’s opinion as contradicting the fact witnesses in this case without cause and believed the contradiction is severe enough to warrant precluding his testimony.

Mountain Creek specifically objected to a line in the Penniman Report claiming “the shadows appear to have caused Mr. Perciballi not to discern the difference between the long tree and pole shadows across his path and the blue fence.” In making this conclusion, Penniman did not quote Perciballi or his son, and by his own testimony has not personally spoken to either fact witness. The Court held that Penniman’s inspection of the site on a different day, without personally witnessing or reviewing the accident, is not sufficient personal knowledge to testify about its cause.

To the extent Mountain Creek challenged the admissibility of any opinion offered by Penniman pertaining to shadows on the ski track, the Court found this opinion admissible. Perciballi may believe the lack of visibility was caused by snow cover, rather than shadows, but this is consistent with the Penniman Report which states that shadows and snow make blue mesh fencing less visible.

3. Testimony about an alleged generally-applicable standard for ski course design is admissible, even when based on personal experience

Finally, Mountain Creek objected to the sections of Penniman’s report and testimony that claimed the “standard custom and best practice” of ski resorts is to have “learning areas . . . separated geographically from the other trails,” to avoid conflict with other skiers.

However, Mountain Creek did not provide a legal basis for its assertion that Penniman must have a “written . . . industry standard,” to support his opinion that the placement of the learning area at the Mountain Creek resort was not best practice.

Plaintiffs argued that Penniman is not testifying that Mountain Creek failed by not living up to his personal standard. Instead, they contended he is testifying that there is an unwritten industry standard and—as an expert—he is in a position to know it. To support their interpretation of Penniman’s opinion, Plaintiffs offered several surveys and reports on the safety protocols of ski resorts authored by Penniman, most notably The California Mountain Resort Safety Report: Survey Methodology and Scoring Criteria (the “California Mountain Report”), as evidence of his knowledge of ski safety standards. For his part, Penniman also testified in his deposition about this study and the research he performed for that study alongside his personal observation of the practices at “over 300 ski areas in the U.S.,” which formed the basis for his opinion that it is an industry standard for resorts to separate learning areas “geographically.”

This may be a “shallow basis as to any industry standard,” as Mountain Creek says, but it is nonetheless sufficient for the “liberal policy of admissibility,” for expert opinions.

C. Experience as a professional ski instructor and ski resort safety consultant are sufficient to testify as an expert

Mountain Creek also challenged Penniman’s qualifications to give his opinion on how skiers typically act, and how they navigate a trail because he is “not trained in human factors, human behavior, biomechanics, engineering, or psychology.”

Mountain Creek’s assertion that Penniman’s decades of experience as a trainer, ski patrol member, and ski trail safety designer “does not constitute superior knowledge, education, experience or skill on the subject matter of skier’s behavior,” to a jury who may have never skied before, because he does not have an unrelated degree in “human factors, human behavior, biomechanics, engineering, or psychology,” is not credible.

The Court found that Penniman is sufficiently qualified to serve as an expert on skier behavior and expectations. 

Held

The Court granted in part and denied in part Mountain Creek’s motion to preclude Richard Penniman’s testimony.

Key Takeaway

An expert may testify as to his or her opinion on the ultimate cause of an injury, even “in the absence of complete information,” so long as the expert has sufficient direct knowledge to ground his or her opinion.

But when an expert opinion “is not based on any direct or circumstantial evidence,” it is inadmissible conjecture, even if the safety measures the expert advocates for would have made the injury “less likely.”

Case Details:

Case Caption:	Perciballi V. Mountain Creek Resort, Inc.
Docket Number:	2:23cv948
Court Name:	United States District Court, New Jersey
Order Date:	January 29, 2026