Herzog v. Vail Resorts

2025 UT App 69
THE UTAH C OURT OF APPEALS
A MY HERZOG AND S HANE HERZOG,
Appellees and Cross-appellants,
v.
VAIL R ESORTS , I NC .,
Appellant and Cross-appellee.
Opinion
No. 20230549-CA
Filed May 15, 2025
Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
No. 200500069
Carolyn S. Stevens, Frederick Yarger, William P.
Sowers Jr., and Adam Strachan,
Attorneys for Appellant and Cross-appellee
William J. Hansen, Karra J. Porter, Kristen C.
Kiburtz, John E. Hansen, and Mitchell T. Brooks,
Attorneys for Appellees and Cross-appellants
JUDGE R YAN D. T ENNEY authored this Opinion, in which
JUDGES R YAN M. HARRIS and A MY J. O LIVER concurred.
TENNEY, Judge:
¶1 	One evening in 2019, the employees of a ski resort owned
by 	Vail 	Resorts, 	Inc. 	(Vail) 	gathered 	for 	a 	work-sponsored
bowling party. During that party, some of Vail’s employees began
bowling in increasingly creative ways. At one point, Amy Herzog,
who was an employee of the bowling alley, was struck by a
bowling ball that had been thrown from another lane by Joe Ellis,
who was a Vail employee. The ball crushed Herzog’s hand,
leaving her with painful and debilitating injuries.

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¶2 	Herzog later sued Vail for both negligent supervision and
respondeat superior (based on Vail’s alleged liability for Ellis’s
negligence). Herzog prevailed on both claims at trial, and the jury
awarded her over $2 million in damages. After trial, the district
court granted Vail’s motion for judgment as a matter of law on the
respondeat superior claim, reasoning that there was insufficient
evidentiary support for that verdict. But the district court denied
a separate motion that Vail filed asking for a new trial on
damages, reasoning that there was a sufficient basis for the jury’s
award.
¶3 	Vail now appeals, challenging several rulings from the
district court, while Herzog cross-appeals, challenging the court’s
decision to grant Vail’s motion to vacate the respondeat superior
verdict. For reasons explained below, we need address only two
of the issues raised on appeal: (1) we first address the issue raised
in Herzog’s cross-appeal, and we conclude that the district court
erred in vacating the jury’s verdict on the respondeat superior
claim; and (2) we next address Vail’s challenge to the denial of its
motion for a new trial on damages, and we affirm the district
court’s conclusion that there was a sufficient basis for the jury’s
award. We accordingly reverse and remand with instructions to
reinstate the original verdict.
BACKGROUND1
The Bowling Party
¶4 	Near the end of the 2018–2019 ski season, the senior
manager of mountain activities (Manager) at Park City Mountain
Resort, which was owned by Vail, organized an “end-of-season
party” for the employees she supervised. To request funds for the
party, 	Manager 	filled 	out 	a 	form 	for 	“company-sponsored
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict.” Meeks v. Peng, 2024 UT 5, n.1, 545
P.3d 226 (quotation simplified).

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events.” On that form, Manager designated the party as “an
official event.” The form had a provision stating that it was
“intended to ensure that the appropriate level of management has
been 	informed 	of 	a 	company-sponsored 	event 	and 	that
supervisory personnel have been identified and are in attendance
to provide oversight for the event.”
¶5 	The party was held at a bowling alley in Park City.
Manager paid for the bowling, food, and drinks with a company
credit card from Vail. Manager also encouraged her employees to
attend the party. Specifically, Manager sent an invitation by email
to her employees, posted a notice on a bulletin board at work, and
mentioned the party at several morning meetings.
¶6 	Ellis worked at the resort that year as a seasonal employee
in the mountain activities department. Ellis later testified that he
felt that Manager “wanted [him] to go” to the bowling party.
¶7 	At the party, the employees socialized with one another
and bowled. The employees bowled a couple of games, and as the
evening progressed, some of them began engaging in “unusual
. . . 	bowling 	maneuvers.” 	These 	employees 	seemed 	to 	be
participating in an informal “competition” to “one-up” each other
by “bowl[ing] in an unorthodox manner.” For example, one
employee bowled a ball between his legs while facing the pins,
while another bowled a ball between his legs with his back to the
pins. Another employee rolled a ball with his foot, while another
employee bowled while covering his eyes. Two other employees
bowled two balls in the same lane immediately after one another,
causing one of the balls to hit the barricade and get stuck in the
gutter.
¶8 	Amidst all this, Ellis did a “360-degree spin” move while
bowling during one of his turns. On his next turn, Ellis tried the
same spin move again. This time, however, Ellis’s ball flew into
an adjacent lane where Herzog was retrieving a ball that was
stuck in the gutter. Ellis’s ball pinned Herzog’s left hand against

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the other ball, injuring it. Herzog walked back to the island where
customers check in and then “collapsed” in pain.
Herzog’s Injury
¶9 	Herzog was taken from the bowling alley to a local hospital
by ambulance. At the hospital, Herzog “couldn’t [get] enough
pain medication to stop the pain.” Herzog was eventually sent
home with “prescription painkillers.” Doctors told Herzog that
she needed surgery on her hand, but the surgery couldn’t be
performed for a week because her hand was too swollen.
¶10 	According 	to 	the 	orthopedic 	surgeon 	(Surgeon) 	who
eventually performed that surgery, Herzog’s hand sustained “a
very severe crush injury,” including “fractures to her index and
middle finger[s]” and “metacarpal bones that were extremely
fragmented,” as well as “soft tissue crush.” The surgery was
“extremely difficult” and took almost five hours. About 20 screws
and pins were put into Herzog’s hand. After the surgery, Herzog
“had bruising all the way up to [her] elbow.” Herzog later needed
two additional surgeries to remove the hardware from her hand.
¶11 	In the weeks following her injury, Herzog “didn’t sleep
very well” and would wake “up in the middle of the night in
screaming pain.” Herzog had to keep her hand above her heart at
all times to “keep the swelling down.” She experienced “sharp
pain” 	and 	“aching,” 	which 	the 	pain 	medication 	failed 	to
“alleviate.”
¶12 	During this time, Herzog couldn’t use her left hand—
which was her dominant hand—at all. As a result, she “developed
trigger finger” in her right hand “from overuse,” which would
cause “the tendon in [her] thumb” to get “locked down.” While
recovering, Herzog couldn’t work, drive, cook, paint, or garden,
which were all things that she normally did. Herzog and her
husband also “weren’t able to be romantic for quite a long time,”
and her injury impacted their social life.

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¶13 	As of the time of trial over two years later, Herzog still had
trouble engaging in activities that require fine motor skills, she
couldn’t 	make 	a 	normal 	fist 	with 	her 	left 	hand, 	and 	her
handwriting had changed. At trial, Herzog’s husband observed
that her left hand now appeared “clawlike” with “enlarged”
knuckles. 	Surgeon 	testified 	that 	“[t]here’s 	an 	underlying
deformity and stiffness that . . . just won’t improve” and that
there’s “a high probability” that she’ll develop “arthritis at the
knuckle joints.”
Complaint and Trial
¶14 	Herzog 	sued 	Vail, 	asserting 	claims 	for 	negligent
supervision 	and 	respondeat 	superior. 	In 	her 	negligent
supervision claim, Herzog alleged that Vail breached its duty of
care by “[f]ailing to use ordinary care to prevent the negligent
bowling of its employees,” “[f]ailing to properly supervise its
employees at the event,” “[f]ailing to stop the reckless conduct of
its employees and see that they bowled in a safe manner,” and
“[f]ailing to warn the employees and patrons of the bowling alley
of 	the 	unsafe 	bowling 	practices 	of 	its 	employees.” 	In 	her
respondeat superior claim, Herzog alleged that Ellis had acted
negligently and that Vail was liable for Ellis’s negligence. In
support of her assertion that Vail should be held liable for that
negligence, Herzog alleged that Manager “organized” the party,
Manager 	“was 	present 	at 	the 	party,” 	all 	attendees 	“were
employed by Vail,” the party “was for the benefit of” Vail, “Vail
intended for its employees to participate in bowling,” and “Vail
provided food and activities as an incentive for employees to
attend the event.” Herzog sought noneconomic damages, special
damages, litigation expenses, prejudgment and postjudgment
interest, 	and 	“further 	relief 	as 	the 	court 	deems 	just 	and
equitable.”2
2. Amy Herzog’s husband, Shane Herzog, was also a named
plaintiff in the complaint. He alleged loss of consortium based on
(continued…)

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¶15 	The case proceeded to a jury trial in November 2022. At
trial, Herzog, Herzog’s husband, Manager, and Surgeon testified
to the events described above. Ellis was not available to testify, so
Vail’s counsel read portions of his deposition into the record.
¶16 	Some of the testimony focused on the purpose of the
bowling party. In a portion of Ellis’s deposition that was read to
the jury, Ellis expressed his view that the bowling party “certainly
benefited Vail.” When asked to explain why, Ellis responded that
it “foster[ed]” a “team-building activity, [made] a more solid
crew,” and “maybe incentivize[d] employees to stay or to recruit
other employees.”
¶17 	The parties each called an expert to opine on the purpose
of the party. Herzog called a human resources expert, who
testified that in her opinion, Vail “use[d] this bowling party as a
team-building 	effort.” 	Herzog’s 	expert 	testified 	that 	“team-
building activities” are “absolutely” necessary and “especially”
important 	for 	companies 	that 	use 	“seasonal 	or 	part-time”
employees and “want them to return.” She explained that in her
own past business experiences, she had “approved parties” for
that very purpose “because employees are very expensive and it’s
hard to recruit, so you do those things in order to retain or get
them to come back.” She further opined that “in seasonal work,
you want people to come back” and that an activity “like that” is
a 	“loss 	of 	services, 	emotional 	support, 	conjugal 	fellowship,
assistance, 	comfort, 	love, 	felicity, 	companionship, 	affection,
intimacy, and solace.” In the special verdict form described below,
the jury awarded Shane $50,000 to compensate him for his loss of
consortium. In its opening brief on appeal, Vail made two passing
references to that award and suggested that it should be vacated.
But Vail did 	not adequately brief any such 	challenge, and
certainly not to a degree that would persuade us to reverse it. We
therefore decline to do so.
Also, because the issues that we do address in this appeal
are focused on Amy Herzog’s claims, we have used, and will
continue using, the singular “Herzog” to refer to Amy Herzog.

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“something that you do in order to . . . hopefully retain some
employees in the new season.”
¶18 	By contrast, Vail’s ski industry expert testified that in his
opinion, “the bowling party was not work-related” and Ellis’s
“bowling maneuver was not consistent with [his] job duties.”
¶19 	Some of the testimony focused on what purpose motivated
Ellis when he performed the bowling move that led to Herzog’s
injury. In a portion of his deposition testimony that was read to
the jury, Ellis was asked, “Doing a 360 didn’t accomplish any of
your job duties, did it?” to which Ellis responded, “No.” Ellis was
then asked what motivated him to do the 360-spin move. Ellis
responded, “I’m not sure of any particular motivation. Maybe
just, you know—I don’t know.”
Jury Instructions, Special Verdict Form, and Verdict
¶20 	In one of the final jury instructions, the court informed the
jury that it needed to answer three questions related to negligence:
• 	“First, you must decide whether Vail is at fault for
negligent supervision.” (Underlining in original.)
Under this heading, the instruction told jurors that
Herzog was alleging that Vail was negligent for
“[f]ailing to properly monitor and supervise Joe
Ellis at the bowling event,” and it laid out the
elements of a negligent supervision claim.
• 	“Second, you must also decide whether Joe Ellis was
negligent.” (Underlining in original.) Under this
heading, the instruction told jurors that Herzog was
alleging that Ellis was negligent for “[f]ailing to use
reasonable 	care 	when 	bowling 	at 	the 	bowling
event,” and it laid out the elements of a negligence
claim.

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• 	“Third, you may also need to decide whether Amy
Herzog is at fault.” (Underlining in original.) Under
this heading, the instruction told jurors that Vail
was claiming “that Amy Herzog was negligent in
causing her own harm,” namely, by “[e]ntering a
bowling lane without making sure it was safe to do
so.”
¶21 	In another instruction, the jury was told that with respect
to Ellis’s alleged negligence, Herzog was claiming that Ellis “was
acting in the scope of his employment with Vail when he did the
360-spin 	maneuver 	at 	the 	bowling 	event.” 	The 	instruction
continued:
To succeed on this claim, Amy Herzog must prove
that Mr. Ellis’s 360-spin maneuver: (1) was of the
general kind of conduct Joe Ellis was employed to
do, or was subject to Vail’s control; and (2) was
motivated, at least in part, by the purpose of serving
Vail’s interest.[3]
¶22 	In another instruction, jurors were told that Vail was
alleging “that more than one person’s fault was the cause of the
harm.” Jurors were told that if they decided that “more than one
person [was] at fault,” they must then “decide each person’s
percentage of fault that caused the harm” and the “allocation
must total 100%.” Jurors were further told that even if they
“determine[d] 	Joe 	Ellis 	was 	acting 	in 	the 	scope 	of 	his
employment,” 	they 	“must 	separately 	allocate 	fault, 	if 	any,
between Vail and Mr. Ellis based on their separate conduct.”
Finally, jurors were told that they could “decide to allocate a
3. In a preliminary instruction given at the outset of trial, jurors
were likewise told that Herzog was alleging that Vail was “at
fault,” in part, “because Joe Ellis was an employee of Vail, and
was acting in the scope of his employment” when “he hurled the
bowling ball that struck Ms. Herzog.”

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20230549-CA 	9 	2025 UT App 69
percentage” to Herzog, that her “total recovery [would] be
reduced by the percentage” the jury “attribute[d] to her,” and that
if they decided “that Amy Herzog’s percentage [was] 50% or
greater,” she would “recover nothing.”4
¶23 	When jurors were sent back to deliberate, they were given
a special verdict form. The special verdict form contained a series
of 12 questions, and at the outset, it told jurors to answer those
questions “in the order they [were] presented.”
¶24 	While 	deliberating, 	the 	jury 	submitted 	a 	handwritten
question that read as follows:
Assume Ellis is a Vail Employee
- If Ellis [is] 60%
- And Vail is 40%
Is Vail off the hook?
The district court sent back a written response that said:
No. Vail is responsible for any fault allocated to Vail.
Vail may also be responsible for fault allocated to
Mr. Ellis if the jury determines Mr. Ellis was acting
in the scope of his employment when he performed
the 360-spin maneuver. But do not add Mr. Ellis’s
4. 	This 	instruction 	was 	an 	apparent 	reference 	to 	Utah’s
comparative negligence scheme. Under the controlling statute,
“[a] person seeking recovery may recover from any defendant or
group of defendants whose fault, combined with the fault of
persons immune from suit and nonparties to whom fault is
allocated, exceeds the fault of the person seeking recovery prior
to any reallocation of fault made under Subsection 78B-5-819(2).”
Utah Code § 78B-5-818.

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fault (if any) to Vail’s fault (if any). The Court will
make the appropriate adjustments after the jury
reaches a verdict.
¶25 	At the close of deliberations, the jury returned its verdict
through a marked and signed copy of the special verdict form.
There, in order, jurors found that:
• 	Vail was at fault and its fault was “a cause of Amy
Herzog’s harm” (which were questions 1 and 2 on
the specifical verdict form);
• 	Ellis was at fault and his fault was “a cause of Amy
Herzog’s harm” (questions 3 and 4); and
• 	Herzog was not at fault (question 5).
Jurors then found that:
• 	the “percent of the fault that caused Amy Herzog’s
harm” that was “attributable to Vail” was 80%
(question 7); and
• 	the “percent of the fault that caused Amy Herzog’s
harm” that was “attributable to Mr. Ellis” was 20%
(question 8).
¶26 	The special verdict form then told jurors that if they found
that Herzog’s fault was less than 50%, they should determine
whether Ellis was “acting in the scope of his employment with
Vail 	when 	he 	did 	the 	360-spin 	bowling 	maneuver.” 	Jurors
checked “Yes” on the accompanying box. Finally, jurors were
asked, “What amount, if any, fairly compensates Amy Herzog”
for a series of identified damages. There, jurors awarded Herzog
$102,000 in economic damages (broken down on the special
verdict form into $88,000 for medical expenses and $14,000 for lost
earnings), as well as $2,250,000 in noneconomic damages.

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¶27 	In December 2022, the district court entered an order and
judgment 	on 	the 	jury’s 	verdict, 	which 	included 	awards 	of
prejudgment and postjudgment interest based on applicable 2022
interest rates.
Posttrial Motions
¶28 	After the judgment was entered, Vail filed two posttrial
motions that are relevant to the issues raised on appeal.
¶29 	First, Vail filed a motion for a new trial on damages,
arguing 	that 	the 	jury’s 	noneconomic 	damages 	award 	“was
excessive and objectively fueled by passion and prejudice” and
that there was “insufficient evidence to support it.” Vail argued
that the award was disproportionate with “the nature and extent
of [Herzog’s] injuries,” her “pain and suffering,” the extent to
which she had been “prevented from pursuing her ordinary
affairs,” “the degree and character of any disfigurement,” the
extent to which she “has been limited in the enjoyment of life,”
and “whether the consequences of the injuries are likely to
continue and for how long.” Vail further argued that the jury’s
mid-deliberation question about allocation of fault principles was
“direct evidence” that the jury was “focused on punishing Vail.”
¶30 	The district court denied this motion, ruling that there was
“sufficient 	evidence” 	to 	support 	the 	noneconomic 	damages
award. The court walked through the factors that it had instructed
the jury to consider and compared those to the evidence admitted
at trial. On the question of whether the damages award was
excessive, the court noted that “Herzog suffered a severe crush
injury of her hand that was . . . difficult to repair” and “required
upwards of twenty screws and pins”; that she suffered “severe”
pain and underwent multiple surgeries; that she has “an ongoing
injury,” permanent “malrotation of the fingers,” an “inability to
form a fist,” and “scarring”; and that she has “a high probability
. . . of developing arthritis.” On the question of whether the
damages award was a product of passion or prejudice, the court
noted that it had “carefully considered and vetted [the] issue” of

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juror bias toward or against Vail “during jury selection” and that
“the jury seemed to pay attention during the trial,” was “engaged,
[and] took a reasonable amount of time to deliberate and consider
the evidence.” Finally, the court declined to “read in any intent to
get a certain result from the question” jurors asked during
deliberations, 	instead 	concluding 	that 	“the 	only 	reasonable
reading is that the jury was seeking to understand whether the
fifty-fifty rule would apply between Vail and Mr. Ellis.”
¶31 	Second, Vail filed a motion for judgment as a matter of law
on the respondeat superior claim, arguing that Herzog had
“presented no evidence to prove that Mr. Ellis did the 360
maneuver with an intent to serve Vail Resorts’ interests.” Vail
further argued that if this motion was granted, it was also
“entitled to a new trial on the remaining negligent supervision
claim because there is no way to know how the unsupported
respondeat superior claim affected the jury’s finding of negligent
supervision or the resulting allocation of fault.”
¶32 	In a decision issued in May 2023, the district court granted
Vail’s motion for judgment as a matter of law on the respondeat
superior claim. The court ruled that there was “ample evidence in
the trial record from which the jury could and did reasonably
conclude that Mr. Ellis’s attendance at the bowling party was
motivated, at least in part, [by] the purposes of serving Vail’s
interest such as the interest in maintaining a team of employees
that operated well and smoothly together.” But it then concluded
that on the narrower question concerning “the 360-spin-bowling
maneuver, the evidence [was] much more limited and insufficient
to support a reasonable finding by the jury that Mr. Ellis was
motivated, at least in part, to serve Vail’s interest when he
performed that 360-spin-bowling maneuver.” The court pointed
to Ellis’s “unrebutted” testimony “that he had no particular
motivation when he performed the maneuver,” as well as Ellis’s
“sworn admission that the maneuver did not comply with or
serve any of his job responsibilities.”

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¶33 	But although the court vacated the respondeat superior
verdict, it rejected Vail’s assertion that this meant it must vacate
the negligent supervision verdict too. In the court’s view, “the
structure of the special verdict form and the contents of the jury
instructions” were such that the negligent supervision claim
could survive on its own. The court explained that it was “simply
not persuaded as a matter of law or under the facts of this case
that there is a sufficient level of entanglement between the course
and scope of employment question and the other questions that
were a necessary part of determining [Herzog’s] claims for a new
trial to be granted.” In light of this decision, the court concluded
that Vail would now be liable for the percentage of fault that the
jury had allocated to it for Vail’s negligent supervision (which, as
indicated, was 80%), but that it would not be liable for the other
20% of the damages that the jury had concluded Herzog sustained
(which, again, the jury had attributed to Ellis’s negligence).
¶34 	At 	the 	court’s 	request, 	Herzog’s 	counsel 	prepared 	a
proposed order that would reflect the court’s rulings on the
posttrial 	motions. 	The 	proposed 	order 	included 	awards 	of
prejudgment and postjudgment interest based on 2023 interest
rates, both of which were several percentage points higher than
the rates that were applicable in 2022. Vail subsequently objected,
arguing that the 2022 interest rates should apply because the court
had originally entered judgment in December 2022. In June 2023,
the district court entered an amended judgment that reflected the
20% reduction in damages and that applied 2023 interest rates to
that figure.
¶35 	Vail appealed, after which Herzog filed a cross-appeal.
ISSUES AND STANDARDS OF REVIEW
¶36 	For reasons explained below, we first address Herzog’s
cross-appeal. There, Herzog argues that the district court erred in
granting Vail’s motion for judgment as a matter of law on the
respondeat superior claim. We review an “order granting [a]

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motion for judgment as a matter of law . . . for correctness, and in
doing 	so 	[we] 	accept 	as 	true 	all 	testimony 	and 	reasonable
inferences that support the jury’s verdict.” Smith v. Volkswagen
SouthTowne, Inc., 2022 UT 29, ¶ 38, 513 P.3d 729 (quotation
simplified).
¶37 	We next address one issue raised by Vail in its appeal—
namely, Vail’s argument that the district court erred in denying
its motion for a new trial on damages. We review a district court’s
“decision to grant or deny a new trial” for “abuse of discretion,”
and “in doing so, we review the legal standards applied by the
district court for correctness and the district court’s factual
findings for clear error.” Id. ¶ 40 (quotation simplified).
ANALYSIS
¶38 	In its direct appeal, Vail argues that the district court erred
by: (1) denying its request for a new trial on the negligent
supervision claim; (2) denying its motion for a new trial on
damages; 	and 	(3) 	applying 	the 	2023 	prejudgment 	and
postjudgment interest rates in the amended judgment. In her
cross-appeal, Herzog argues that the district court erred in
granting Vail’s motion for judgment as a matter of law on her
respondeat superior claim.
¶39 	We address Herzog’s cross-appeal first, and the reason for
this is that Vail’s first and third arguments are both dependent on
the continued viability of the district court’s decision to vacate the
respondeat 	superior 	verdict. 	With 	respect 	to 	negligent
supervision, Vail argues that once the district court vacated the
respondeat superior verdict, it was required to then vacate the
negligent supervision verdict as well because the two claims were
intermingled. But Vail did not separately challenge the negligent
supervision verdict on its own terms. At oral argument, Vail thus
agreed that if we rule in Herzog’s favor on her cross-appeal, we
would have no need to address its first argument. With respect to
the interest rates, the original verdict was issued in 2022, so the

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only reason the district court applied the 2023 interest rates was
that in 2023, it had granted Vail’s motion for judgment as a matter
of law on the respondeat superior claim. As a result, at oral
argument, both sides agreed that if we rule in Herzog’s favor on
the cross-appeal, there would be no basis for continuing to apply
the 2023 interest rates.
¶40 	In light of this, we first address Herzog’s challenge to the
decision vacating the respondeat superior verdict. As explained
below, we agree that the district court erred. As a result, we next
turn to the sole remaining issue, which is Vail’s challenge to the
court’s denial of its motion for a new trial on damages.
I. Respondeat Superior
¶41 	The district court granted Vail’s motion for judgment as a
matter of law on Herzog’s respondeat superior claim, concluding
that there was insufficient evidence for the jury to have found that
Ellis was motivated even in part to serve Vail’s interest when he
did the 360-spin move that led to Herzog’s injuries. Herzog
challenges this ruling on appeal. We agree that the district court
erred.
¶42 	Rule 50 of the Utah Rules of Civil Procedure “permits a
court to grant judgment as a matter of law only where ‘the court
finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party’ on a claim or defense.”
Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 46, 513 P.3d
729 (quoting Utah R. Civ. P. 50(a)(1)). When ruling on a motion
for judgment as a matter of law, the district court “must look at
the 	evidence 	and 	all 	reasonable 	inferences 	in 	a 	light 	most
favorable to the nonmoving party.” Id. (quotation simplified); see
also Meeks v. Peng, 2024 UT 5, ¶ 28, 545 P.3d 226 (“To prevail, the
[moving party] must demonstrate that there was no basis in the
evidence, including reasonable inferences which could be drawn
therefrom, to support the jury’s verdict.” (quotation simplified));
Sheppard v. Geneva Rock, 2021 UT 31, ¶ 24, 493 P.3d 632 (“A trial
court is justified in granting a judgment as a matter of law only if,

Herzog v. Vail Resorts
20230549-CA 	16 	2025 UT App 69
examining all evidence in a light most favorable to the non-
moving party, there is no competent evidence that would support
a 	verdict 	in 	the 	non-moving 	party’s 	favor.” 	(quotation
simplified)).
¶43 	Respondeat superior is a common law doctrine under
which “an employer can be held vicariously liable for the torts of
[its] employees” when an employee acts “within the scope of
employment” or is “subject to the employer’s control.” Sampson v.
HB Boys, LC, 2024 UT App 56, ¶ 24, 548 P.3d 538 (quotation
simplified). 	An 	“employee’s 	acts 	are 	within 	the 	scope 	of
employment if (1) the employee’s conduct is of the general kind
the employee is employed to perform and (2) the employee’s acts
were motivated, at least in part, by the purpose of serving the
employer’s interest.” Id. (quotation simplified). “The question of
whether an employee is acting within the scope of employment is
a question of fact,” and it “must be submitted to a jury whenever
reasonable minds may differ as to whether the employee was at a
certain time involved wholly or partly in the performance of his
employer’s business or within the scope of employment.” Clover
v. Snowbird Ski Resort, 808 P.2d 1037, 1040 (Utah 1991) (quotation
simplified).
¶44 	Here, 	the 	district 	court 	ruled 	that 	there 	was 	“ample
evidence in the trial record from which the jury could and did
reasonably conclude that Mr. Ellis’s attendance at the bowling
party was motivated, at least in part, [by] the purposes of serving
Vail’s interest such as the interest in maintaining a team of
employees that operated well and smoothly together.” On this
point, we agree with the district court.
¶45 	As explained above, Manager filled out a form requesting
funds for the bowling party as a “company-sponsored event[],”
and on that form, Manager designated the party as “an official
event.” The event was approved by and paid for by Vail. Manager
encouraged Vail’s employees, including Ellis, to attend the party.
Ellis later testified in his deposition that he thought Manager
“wanted [him] to go” to the party. He said that he was motivated

Herzog v. Vail Resorts
20230549-CA 	17 	2025 UT App 69
to attend the party to build “comradery with [his] coworkers” and
because “it was all paid for.” And he further explained that “[b]y
increasing morale outside of work, it incentivizes you to work
harder at work.” In addition, Herzog’s human resources expert
testified that in her opinion, Vail “use[d] this bowling party as a
team-building effort,” which is especially important for retention
of seasonal employees because they “are very expensive and . . .
hard to recruit, so you do those things in order to retain or get
them to come back.” Indeed, at oral argument, Vail conceded that
there was evidence from which the jury could find that Ellis’s
attendance at the party was motivated, at least in part, by serving
Vail’s interest.
¶46 	Since 	the 	jury 	could 	reasonably 	think 	that 	Ellis’s
attendance at the party was motivated, at least in part, by a desire
to benefit Vail’s interest, then we believe the jury could also think
that Ellis’s participation in the bowling aspect of the bowling
party was motivated by that same desire. After all, this was a Vail-
sponsored team-building activity at a bowling alley, and, among
other 	things, 	Vail 	had 	specifically 	paid 	for 	the 	employees’
bowling. At oral argument, Vail thus conceded that it was
“possible” that the jury could find that Ellis’s participation in
bowling generally was at least partially motivated by a desire to
benefit Vail’s interest.
¶47 	The remaining question, then, is whether Ellis also needed
to have the intent to benefit Vail when he performed the specific
360-spin move that directly led to Herzog’s injuries. Vail argues
that Ellis was legally required to have this intent with respect to
that move, and it then argues that, as a factual matter, Ellis did
not. As noted, the district court agreed with Vail on both points.
By contrast, Herzog argues that the intent question should not be
narrowed to such a level—she thinks it was enough that Ellis
intended to benefit Vail while bowling generally—and in any
event, Herzog contends that there was evidence from which the
jury could conclude that Ellis had the requisite intent even with
respect to the particular move.

Herzog v. Vail Resorts
20230549-CA 	18 	2025 UT App 69
¶48 	We need not decide whether, as a matter of law, the intent
analysis could stop at bowling generally, as opposed to the 360-
spin move more particularly. This is so because, even if we accept
Vail’s contention that the intention question could be narrowed to
that particular move, we agree with Herzog that the jury could
find that even this move was motivated by the requisite intent.
¶49 	As noted, whether an employee was acting within the
scope of employment is “a question of fact” that “must be
submitted to a jury whenever reasonable minds may differ.”
Clover, 808 P.2d at 1040 (quotation simplified); see also Newman v.
White Water Whirlpool, 2007 UT App 303, ¶ 3, 169 P.3d 774 (noting
that “scope of employment questions are inherently fact bound”
(quotation simplified)). As also noted, one part of the “scope of
employment” analysis is the determination of whether the acts at
issue “were motivated, at least in part, by the purpose of serving
the 	employer’s 	interest.” 	Sampson, 	2024 	UT 	App 	56, 	¶ 	24
(quotation simplified). Our supreme court has thus treated the
question of whether an employee was motivated, at least in part,
by the purpose of serving the employer’s interest as a question of
fact. Christensen v. Swenson, 874 P.2d 125, 129 (Utah 1994).
¶50 	As a result, this question was properly left in the jury’s
hands if there was any competent evidence to support Herzog’s
claim. See Smith, 2022 UT 29, ¶ 70. And in light of this, Utah
appellate courts have repeatedly reversed district court decisions
that took scope-of-employment questions away from juries. See,
e.g., Newman, 2008 UT 79, ¶ 12 (affirming the court of appeals’
reversal of summary judgment because “reasonable minds in fact
could differ as to whether [the employee] was in the scope of his
employment” (emphasis in original)); Christensen, 874 P.2d at 129
(reversing a district court’s grant of summary judgment because
“reasonable minds could differ as to whether [the employee] was
acting within or outside the scope of her employment”); Clover,
808 P.2d at 1043, 1048 (reversing a district court’s grant of
summary judgment because there was evidence from which a
jury could conclude that the employee “was acting within the
scope of his employment”); Sampson, 2024 UT App 56, ¶ 24

Herzog v. Vail Resorts
20230549-CA 	19 	2025 UT App 69
(reversing a district court’s grant of summary judgment because
“reasonable minds could differ as to whether [the employee] was
acting within the scope of her employment”); Aguila v. Planned
Parenthood of Utah, 2023 UT App 49, ¶ 24, 530 P.3d 959 (reversing
a district court’s grant of a motion to dismiss because there was
no showing that the employee’s “conduct was so clearly within or
outside the scope of her employment that reasonable minds could
not differ”).
¶51 	While there are cases in which our appellate courts have
affirmed decisions to take such questions away from juries, those
cases 	have 	involved 	situations 	where 	there 	was 	simply 	no
competent evidence from which the jury could conclude that the
employee was even partially motivated by a desire to benefit the
company. In one recent case, for example, our supreme court
concluded that a doctor could not be held liable for sexual assaults
committed by a physician’s assistant who worked at his clinic,
concluding that “no reasonable juror could find” that sexual
assault was “the general sort of acts” the physician’s assistant
“was hired to perform.” Burton v. Chen, 2023 UT 14, ¶ 32, 532 P.3d
1005. In another somewhat similar case, our supreme court held
that a municipality could not be held liable when one of its police
officers molested a minor, concluding that no evidence existed
“that would lead reasonable minds to conclude” that the officer
“was 	acting 	in 	the 	interest” 	of 	the 	municipality 	“when 	he
committed 	acts of 	molestation,” 	and 	where 	the 	officer 	had
“admitted that he committed the acts for his own personal
gratification and that he knew the acts were . . . outside the bounds
of his employment.” J.H. ex rel. D.H. v. West Valley City, 840 P.2d
115, 123 (Utah 1992).
¶52 	But this case is qualitatively different. Again, respondeat
superior doesn’t require that the employee be solely motivated by
the intent to benefit the company; rather, it’s enough if the
employee was motivated “in part” by this intent. Sampson, 2024
UT App 56, ¶ 24 (quotation simplified). And here, there was
evidence showing that Ellis was not acting “from purely personal
motives in no way connected with [Vail’s] interests.” Birkner v.

Herzog v. Vail Resorts
20230549-CA 	20 	2025 UT App 69
Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989) (quotation
simplified). Ellis was at a work-sponsored bowling activity, and
the district court found (and Vail has conceded) that the jury
could rationally conclude that Ellis was motivated to bowl, at least
in part, by a desire to benefit Vail. But drawing on that same
evidence, the jury could also conclude that the 360-spin move was
done to serve that same interest. Since the jury could conclude that
bowling with a group of fellow employees was partially done to
benefit Vail through an act of team-building camaraderie, then it
could also conclude that bowling in an unorthodox manner with
those same employees at the same bowling activity was done to
serve that same team-building interest.
¶53 	Put differently, the court thought there was a meaningful
factual and legal line between bowling and bowling in this manner.
But in our view, the same facts that would support a conclusion
that Ellis had the requisite intent for the former would also
support the conclusion that he had the requisite intent for the
latter. And this is precisely what the jury found. The jury was
instructed that to find that “Ellis was acting in the scope of his
employment with Vail when he did the 360-spin maneuver at the
bowling event,” Herzog had to “prove that Mr. Ellis’s 360-spin
maneuver . . . was motivated, at least in part, by the purpose of
serving Vail’s interest.” Having been instructed in this regard, the
jury expressly found that Ellis was acting in the scope of his
employment at that particular moment.
¶54 	On appeal, Vail nevertheless defends the district court’s
conclusion by pointing to a particular statement from Ellis’s
deposition (which, again, was read to the jury at trial) where Ellis
said that he had no “particular motivation” when he did the 360-
spin move. We take the point that, if viewed in isolation, this
statement might undercut Herzog’s position. But even so, we
don’t believe that it undercuts her position to such a degree that
the district court was entitled to take this factual question away
from the jury.

Herzog v. Vail Resorts
20230549-CA 	21 	2025 UT App 69
¶55 	When evaluating factual questions, juries are allowed to
consider the testimony and evidence as a whole. See State v.
Cardona-Gueton, 2012 UT App 336, ¶ 11, 291 P.3d 847. Juries are
also 	allowed 	to 	use 	common 	sense 	and 	make 	reasonable
inferences. See State v. Ashcraft, 2015 UT 5, ¶ 37, 349 P.3d 664. And
juries are empowered to disregard testimony if there’s reason to
do so. See State v. Torres, 2018 UT App 113, ¶ 20, 427 P.3d 550. The
jury thus “serves as the exclusive judge of both the credibility of
witnesses and the weight to be given [to] particular evidence.”
Salt Lake City v. Christensen, 2013 UT App 283, ¶ 2, 317 P.3d 478
(per curiam) (quotation simplified).
¶56 	When read in its full context, the statement in question here
was hardly definitive. Ellis was asked what motivated him to do
the 360-spin move, to which he responded, “I’m not sure of any
particular motivation. Maybe just, you know—I don’t know.” The
questioner did not ask a follow-up question at that point, so Ellis
did not elaborate further or expound on this answer.
¶57 	But there were several qualifiers within the answer—“I’m
not sure . . . Maybe just . . . I don’t know”—which collectively
suggest that Ellis may have either been confused by the question
or just didn’t have strong feelings about it. And more to the point,
Ellis didn’t say that he had no motivation. Rather, what he said
was 	that 	he 	was 	“not 	sure 	of 	any 	particular 	motivation.”
(Emphases added.) In other words, Ellis didn’t say (and never
said) 	that 	the 	360-spin 	move 	was 	somehow 	a 	reflexive 	or
involuntary action (i.e., that he had tripped, spun around, and
accidentally dropped the ball). If it was not a reflexive move,
however, then Ellis had to have been motivated by something
when he did it. And in the context of the evidence as a whole, the
something seems clear enough—when Ellis performed this move,
he 	seems 	to 	have 	been 	motivated 	by 	the 	same 	thing 	that
motivated him to attend and bowl in the first place. Ellis’s use of
the word “particular” within this very answer is consistent with
this interpretation, suggesting that Ellis was saying he wasn’t sure
that there was a particular (which, in context, can be read as
meaning unique or perhaps different) motivation for making this

Herzog v. Vail Resorts
20230549-CA 	22 	2025 UT App 69
move as opposed to any other move that he made that night. At
bare minimum, the evidence as a whole could support this
conclusion, and this single statement from Ellis’s deposition
(which was decidedly qualified) doesn’t persuade us that the jury
could not conclude otherwise.
¶58 	In short, we don’t believe that the 360-spin move was so
different in kind or purpose from the other acts that Ellis
performed that night that a jury could not conclude that it was
motivated 	by 	the 	same 	intent. 	And 	since, 	by 	Vail’s 	own
acknowledgment, a jury could rationally conclude that Ellis was
at least partially motivated by the intent to benefit Vail when he
bowled that night, we conclude that the district court erred when
it vacated the jury’s verdict holding Vail responsible for Ellis’s
negligence under a respondeat superior theory. We accordingly
reverse that decision, and we remand with instructions for the
court to reinstate the jury’s verdict on that claim.
¶59 	As explained above, this reversal has two additional
ramifications relevant to this appeal. First, because we have ruled
in Herzog’s favor on the respondeat superior issue, we have no
need to address Vail’s challenge to the court’s denial of its request
for a new trial on the negligent supervision claim. Second, because
the district court’s decision to apply the 2023 interest rates was a
direct result of its decision to vacate the jury’s original verdict, and
because we’re now directing the court to reinstate that verdict, we
further direct the court on remand to reinstate its original
judgment that both (1) awarded Herzog all (rather than just 80%)
of the damages found by the jury and (2) calculated interest by
using the 2022 interest rates. See Smith v. Volkswagen SouthTowne,
Inc., 2024 UT App 33, ¶¶ 4–6, 18, 547 P.3d 198, cert. denied, 558 P.3d
90 (Utah 2024).
II. Damages
¶60 	Herzog sought both economic and noneconomic damages.
“General damages, which are sometimes referred to as ‘pain and
suffering’ 	or 	‘noneconomic’ 	damages, 	measure 	the 	amount

Herzog v. Vail Resorts
20230549-CA 	23 	2025 UT App 69
needed to compensate an individual for a diminished capacity for
the enjoyment of life.” Pinney v. Carrera, 2020 UT 43, ¶ 36, 469 P.3d
970 (quotation simplified). “In other words, general damages
attempt to measure the difference between what life would have
been like without the harm done and what it is like as a result of
the harm.” Id. (quotation simplified).
¶61 	The jury was instructed that it could consider the following
factors in assessing and awarding noneconomic damages:
• 	“the nature and extent of injuries”;
• 	“the pain and suffering, both mental and physical”;
• 	“the 	extent 	to 	which 	Amy 	Herzog 	has 	been
prevented from pursuing [her] ordinary affairs”;
• 	“the degree and character of any disfigurement”;
• 	“the extent to which Amy Herzog has been limited
in the enjoyment of life”; and
• 	“whether the consequences of these injuries are
likely to continue and for how long.”
Vail has not argued that these factors were impermissible as a
guide for the jury’s decision.5
¶62 	In the original verdict, the jury awarded Herzog $2,250,000
in noneconomic damages. After trial, Vail filed a motion for a new
trial on damages, arguing that the damages were excessive. The
5. Most of these factors were expressly approved by our supreme
court in Pinney v. Carrera, 2020 UT 43, ¶ 37, 469 P.3d 970, and the
entire 	list 	aligns 	with 	the 	Model 	Utah 	Jury 	Instruction 	on
noneconomic damages, see Model Utah Jury Instructions 2d CV
2004, https://legacy.utcourts.gov/muji/?cat=1 [https://perma.cc/X
N5G-HVCE].

Herzog v. Vail Resorts
20230549-CA 	24 	2025 UT App 69
district court denied that motion, and Vail now challenges that
ruling on appeal.
¶63 	As an initial matter, in a few places in its brief, Vail
suggests that there was insufficient “evidence to justify the
verdict” under rule 59(a)(6) of the Utah Rules of Civil Procedure.
But in Utah, “a party challenging . . . [the] sufficiency of the
evidence to support a verdict will almost certainly fail to carry its
burden of persuasion on appeal if it fails to marshal” the evidence
supporting the decision in question. State v. Nielsen, 2014 UT 10,
¶ 42, 326 P.3d 645, superseded by statute on other grounds as
recognized in State v. Richins, 2025 UT 10, -- P.3d --. And several
past cases have applied the marshaling rule to a party’s challenge
to a damages award. See, e.g., Traco Steel Erectors, Inc. v. Comtrol,
Inc., 2009 UT 81, ¶ 18, 222 P.3d 1164; Wilson v. Sanders, 2019 UT
App 126, ¶ 24, 447 P.3d 1240; Boyer v. Boyer, 2008 UT App 138,
¶ 21, 183 P.3d 1068; Dejavue, Inc. v. U.S. Energy Corp., 1999 UT App
355, ¶ 12, 993 P.2d 222.
¶64 	But 	Vail’s 	briefing 	on 	the 	question 	of 	damages 	was
decidedly incomplete when it came to describing the evidence
about Herzog’s injuries. Vail focused almost exclusively on the
state of Herzog’s hand several months after the incident and her
surgeries. In its opening brief, Vail told us that Herzog “testified
that her hand caused her no pain” and that the injury had
“minimal to nonexistent” lasting effects, and Vail gave almost no
indication that there was any evidence to the contrary. As
discussed above in the Background and again below, however,
there was a great deal of evidence presented at trial showing that
while Herzog’s pain may have no longer been a daily occurrence
by the time of trial, Herzog suffered enormous pain in the weeks
and months following the incident and will continue to have
lasting effects from her injuries moving forward. By ignoring this
evidence, Vail presented this court with a skewed evidentiary
picture, and by doing so, Vail did not carry its burden of
persuading us that, in light of the full evidentiary picture, the
factual evidence was lacking. To the extent that Vail’s challenge

Herzog v. Vail Resorts
20230549-CA 	25 	2025 UT App 69
to the damages award is factual in nature, we reject it for this
reason.
¶65 	The main thrust of Vail’s argument is directed at the
alleged excessiveness of the award itself. Under rule 59(a)(5) of
the Utah Rules of Civil Procedure, “a new trial may be granted”
based on “excessive or inadequate damages that appear to have
been given under the influence of passion or prejudice.” In
assessing motions made under this rule, our supreme court has
“emphasized that juries are generally allowed wide discretion in
the assessment of damages.” USA Power, LLC v. PacifiCorp, 2016
UT 20, ¶ 71, 372 P.3d 629 (quotation simplified). And our supreme
court has further held that because the trial judge was “present
for all phases of the trial, the trial judge is in the best position to
ascertain if the jury has exceeded its proper bounds,” and an
appellate court “will reverse only if there is no reasonable basis
for the decision.” Id. ¶ 84 (quotation simplified); see also ASC Utah,
Inc. v. Wolf Mountain Resorts, LC, 2013 UT 24, ¶ 21, 309 P.3d 201
(“A motion for a new trial invokes the sound discretion of the trial
court, 	and 	appellate 	review 	of 	its 	ruling 	is 	quite 	limited.”
(quotation simplified)); Crookston v. Fire Ins. Exch., 817 P.2d 789,
804 (Utah 1991) (“The reason that any determination as to whether
the jury exceeded its proper bounds is best made in the first
instance by the trial court is that the trial judge is present during
all aspects of the trial and listens to and views all witnesses.
Therefore, he or she can best determine if the jury has acted with
‘passion or prejudice’ and whether the award was too small or too
large in light of the evidence.”).
¶66 	As a result, to prevail on appeal, Vail must essentially
surmount a double-layer of deference—i.e., it must overcome the
deference the district court gave to the jury, as well as the
deference that we give to the district court’s assessment of
whether the jury’s award was excessive. And “in case of doubt,
the deliberate action of the trial court should prevail.” USA Power,
2016 UT 20, ¶ 84 (quotation simplified).

Herzog v. Vail Resorts
20230549-CA 	26 	2025 UT App 69
¶67 	Here, Vail broadly argues that the noneconomic damages
award was “grossly excessive” and must therefore be vacated. In
rejecting that same argument below, the district court pointed to
the extensive evidence presented at trial of Herzog’s pain and
injuries (which, again, Vail did not marshal in its opening brief).
This included evidence showing that Herzog “suffered a severe
crush injury of her hand that was . . . difficult to repair” and
“required upwards of twenty screws and pins”; that she suffered
“severe” pain and underwent multiple surgeries; and that she
now 	has 	“an 	ongoing 	injury” 	that 	involves 	permanent
“malrotation 	of 	the 	fingers,” 	an 	”inability 	to 	form 	a 	fist,”
“scarring,” and “a high probability . . . of developing arthritis.” In
light of all this, the district court declined to overturn the jury’s
damages award.6
¶68 	Vail nevertheless offers several reasons why, in its view,
the award should have been overturned under rule 59(a)(5). But
we find none of them persuasive.
¶69 	First, Vail argues that the noneconomic damages award
was 	necessarily 	“the 	product 	of 	passion 	or 	prejudice” 	as
contemplated by rule 59(a)(5) because it was “so excessive that it
shocks the conscience.” In support of this argument, Vail relies on
Duffy v. Union Pacific Railroad Co., 218 P.2d 1080 (Utah 1950). In
6. As noted above in the Background, there was ample evidence
to support these conclusions. Among others, Herzog testified that
she was in pain after the incident, that she would wake “up in the
middle of the night in screaming pain” in the weeks after her first
surgery, that her pain was so intense both before the surgery and
in the weeks that followed that pain medication could not
ameliorate 	it, 	and 	that 	her 	life 	activities 	were 	significantly
impaired for a substantial period of time while she was recovering
from the surgery. The jury observed her hand firsthand and heard
various descriptions of it, including from her husband, who
described her hand as now being “clawlike” with “enlarged”
knuckles, as well as from Surgeon, who testified that “[t]here’s an
underlying deformity and stiffness that . . . just won’t improve.”

Herzog v. Vail Resorts
20230549-CA 	27 	2025 UT App 69
that case, our supreme court explained that a “verdict might be so
grossly excessive and disproportionate to the injury that we could
say from that fact alone that as a matter of law the verdict must
have been arrived at by passion or prejudice,” but to do so “the
verdict 	must 	be 	so 	excessive 	as 	to 	be 	shocking 	to 	one’s
conscience.” Id. at 1083. But as just discussed, a noneconomic
damages award can turn on a range of factors for which there is
no fixed measure—how to value a person’s pain and suffering, or
the loss of enjoyment of daily activities, or the other things listed
above. 	Cases 	such 	as 	this 	call 	upon 	juries 	to 	make 	value
judgments. And while courts certainly play some role in policing
the outer bounds of what’s permissible, juries are “generally
allowed wide discretion in the assessment of damages,” USA
Power, 2016 UT 20, ¶ 71 (quotation simplified), and it’s generally
left to the district court to determine “whether the award was too
small or too large in light of the evidence,” Crookston, 817 P.2d at
804. Here, unlike members of this court, jurors and the district
court heard the evidence firsthand, including Herzog’s testimony
about her significant pain and suffering, as well as the testimony
and evidence of the impairments she has suffered and will suffer
moving forward. In light of the jury’s advantaged position, we
don’t believe that this award was so large that we must, or even
can, substitute our judgment for that of the jury and then the
district court. We therefore reject this argument.
¶70 	Second, Vail points out that the noneconomic damages
award exceeded the amount requested by Herzog at trial. But our
supreme court has cautioned that “the amount requested by the
plaintiff does not provide a reliable standard upon which to
measure the reasonableness of a jury award.” Pinney, 2020 UT 43,
¶ 40 n.40; see also Morga v. FedEx Ground Package System, Inc., 2022-
NMSC-013, ¶ 46, 512 P.3d 774 (“[T]he fact that the jury chose to
award more [noneconomic damages] than what [the plaintiffs]
may have suggested is insufficient to infer passion or prejudice.”);
2 Robert E. Larsen, Navigating the Federal Trial § 13:25 (2024 ed.)
(recognizing that a “jury is under no obligation to follow the
requests for damages from plaintiff’s lawyer” and that a “jury
may award more or less, so long as the verdict is supported by the

Herzog v. Vail Resorts
20230549-CA 	28 	2025 UT App 69
evidence”). Vail points to no decision holding that a jury cannot
award more than a plaintiff has requested, much less a decision
holding that a district court must invalidate an award if it did.
¶71 	We do recognize the possibility that, in an extreme case, a
court could overturn an award if it is truly excessive, and in such
a case, the nature of the plaintiff’s request may inform that
analysis. See, e.g., 2 Robert E. Larsen, Navigating the Federal Trial §
13:25 (2024 ed.). But in such a case, the analysis would still turn
on the perceived excessiveness of the award itself. And as
indicated, we conclude that the award here was not so large that
it can be overturned on that basis. As a result, we likewise decline
to reverse based on the fact that the jury’s assessment of the
proper amount of damages was higher than that requested by
Herzog’s counsel at trial. We therefore reject this argument as
well.
¶72 	Third, Vail argues that the award was excessive when
compared to a few noneconomic damages awards that Vail has
identified from other cases. It was unclear to us from Vail’s
briefing where it drew these cases from, and at oral argument,
Vail informed us that it drew these verdicts from a “judgments
search” it conducted in an online database. But Vail has provided
us 	with 	nothing 	from 	which 	we 	could 	conclude 	that 	this
particular database is comprehensive—nor, for that matter, has
Vail notified us of the full range of potentially relevant examples,
as opposed to those that support its position—so we have no basis
for concluding that the few cases Vail chose to highlight are
representative of the range of verdicts that are out there in any
meaningful sense. And we note that the Restatement has recently
expressed caution about relying on such databases, explaining
that “[j]ury verdict reporters” are often “incomplete,” in part,
because they are “generally dependent on lawyers to report their
cases,” and it further cautioned that such databases “typically
contain little detail about the plaintiff and the injury, and what
they do contain is not always accurate.” Restatement (Third) of

Herzog v. Vail Resorts
20230549-CA 	29 	2025 UT App 69
Torts: Remedies § 17 cmt. f (Am. L. Inst., Tentative Draft No. 2,
2023).7
¶73 	In any event, our supreme court in Duffy expressed some
wariness about the possibility of making an excessive damages
decision 	through 	comparative 	analysis, 	observing 	that
“[p]reviously decided cases are of little value in fixing present day
standards or in assisting courts in determining excessive awards.”
218 P.2d at 1084. True, Duffy is over 70 years old, and we recognize
that some jurisdictions now do permit courts to assess the alleged
excessiveness of an award, in part, by comparing the award with
awards 	from 	“similar 	cases.” 	Restatement 	(Third) 	of 	Torts:
Remedies § 17 cmt. f (Am. L. Inst., Tentative Draft No. 2, 2023).
But some other jurisdictions forbid such comparisons. See 3 Jacob
A. Stein, Stein on Personal Injury Damages § 20:7 (3d ed. 2025)
(collecting cases). And the Restatement has recently chosen not to
“endorse comparative review,” in part, because of its concern that
“so many facts about each case are relevant to the assessment of
damages that no two cases—or at best, very few pairs of cases—
are truly comparable.” Restatement (Third) of Torts: Remedies
§ 17 cmt. f (Am. L. Inst., Tentative Draft No. 2, 2023).
¶74 	We have similar concerns. Different juries are confronted
with different facts involving different plaintiffs who suffered
different injuries to different body parts and then endured
different ongoing problems. We thus agree with Duffy that
awards from other cases should ordinarily provide “little value”
in determining whether an award from a particular case was
excessive. And in light of these concerns, we’re not persuaded that
7. As explained by the American Law Institute on its website,
although this provision is currently labeled as a “Tentative Draft,”
it 	has 	been 	approved 	by 	the 	American 	Law 	Institute’s
membership—it’s apparently just awaiting publication of the
“official text”— and it “represents the most current statement of
the American Law Institute’s position on the subject.” Torts:
Remedies, 	The 	Am. 	L. 	Inst., 	https://www.ali.org/project/torts-
remedies [https://perma.cc/XZ6T-DARH].

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20230549-CA 	30 	2025 UT App 69
the few cases highlighted by Vail in its brief provide a reliable
basis for making a meaningful comparison, nor are we persuaded
that they give us sufficient reason to invalidate this jury’s award.
¶75 	Finally, Vail points out that, mid-deliberation, the jury sent
a question to the court asking, “If Ellis [is] 60%—and Vail is 40%—
is Vail off the hook?” In Vail’s view, this question shows that the
jury was improperly motivated by a desire to punish Vail and that
this verdict was therefore necessarily the product of “passion or
prejudice” as contemplated by rule 59(a)(5). But when Vail made
this 	same 	argument 	to 	the 	district 	court 	below, 	the 	court
considered and rejected it. The court noted that it had “carefully
considered and vetted [the] issue” of juror bias “during jury
selection,” and it further noted that “the jury seemed to pay
attention 	during 	the 	trial,” 	was 	“engaged,” 	and 	“took 	a
reasonable 	amount 	of 	time 	to 	deliberate 	and 	consider 	the
evidence.” As to the question itself, the court concluded that “the
only reasonable reading is that the jury was seeking to understand
whether the fifty-fifty rule would apply between Vail and Mr.
Ellis.” And there was some reason for the jury to grapple with this
concept. The jury was being asked to apportion fault between
three different persons or entities (Vail, Ellis, and Herzog). And in
both the jury instructions and the special verdict form, the jury
was told about the 50% rule that underlies Utah’s comparative
fault regime. While the question does suggest that the jury was
seeking to “understand” how those principles work, as the district
court put it, we agree with the district court that, on its own, this
question does not demonstrate that the jury was so motivated by
a desire to improperly “punish” Vail that its damages award can
now be reversed.
¶76 	In sum, we recognize that this case resulted in what some
may see as a very large noneconomic damages award. But this
award was based on evidence that the jury saw and heard, and
the decision about how to compensate Herzog for her pain and
suffering was the jury’s to make. We’re not persuaded that the
jury’s ultimate decision was based on any impermissible factor or
fell outside the range of its discretion. We therefore see no abuse

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20230549-CA 	31 	2025 UT App 69
of discretion in the district court’s decision to deny Herzog’s
motion for a new trial on the question of damages.
CONCLUSION
¶77 	We first hold that the district court erred in granting Vail’s
motion for judgment as a matter of law on Herzog’s respondeat
superior claim. We reverse that decision and order the district
court to reinstate the original judgment on remand, as well as to
apply the 2022 interest rates. We next hold that the district court
did not abuse its discretion in denying Vail’s motion for a new
trial based on excessive damages, so we affirm that decision.