New York Ski Law
“Safety in Skiing” Code at N.Y. Gen. Oblig. §§ 18-101 et seq. New York sets certain statutory duties for skiers, passengers, and operators, with additional duties pertaining to the possibility that skiing may be “hazardous regardless of all feasible safety measures.” Id. at § 18-106. The possibility of negligence per se is coupled with traditional common law negligence, the status quo of which is expressly maintained, absent a contrary and specific legislative directive. Id. at § 18-107. Operators have statutory duties to provide warnings and notice, including notice that refunds for unused lift tickets are available should a skier determine that they can not safely participate after exercising their duty to become informed of potential skiing hazards. Id. at §§ 18-103, 18-105, 18-106. Operators must also inspect run conditions twice a day and pad lift towers. Skiers must maintain general “control” and ski within their abilities, having first familiarized themselves with the course. Operators of ski lifts at ski areas are excluded from the definition of “common carrier” under N.Y. Transp. Law § 2, and cannot contract out of their own negligence liability, per N.Y. Gen. Oblig. § 5-326. Volunteer ski patrol members are granted immunity, except for “gross negligence.” N.Y. Unconsol. Laws § 7310.
Review a few Ski Law cases from New York below.
Prior to 2006
A 14-year old skied out of bounds and caught his ski on a concealed cable on defendant’s mountain. His injuries included multiple fractures, weeks of traction, and months of pain. A jury award of pain and suffering that included only $18,000 for past and nothing for future pain and suffering, was set aside. The court concluded, in part, that the jury award materially deviated from reasonable compensation. Singh v. Catamount Development Corp., 801 N.Y.S. 2d 290 (N.Y. App. Div. 2005). As shown, New York courts are relatively receptive of ski injury claims, often conducting a thorough, traditional duty and standard of care analysis. However, in an unpublished opinion, Conery v. Snow Time, Inc., 2004 WL 2347212 (N.Y. Sup.), the court granted summary judgment to defendant. The plaintiff had alleged that the large wood shard on which he had been impaled was not a “natural” condition but resulted from incomplete trail expansion; the court responded that even were the shard the result of an incomplete cleanup, such was incidental to ski area maintenance, and thus an inherent risk assumed by the adult plaintiff, an experienced skier. This case encourages contrast with Basilone v. Burch Hill Operations, Inc., 605 N.Y.S. 2d 423 (Sup. Ct. App. Div. 1993). There, 15-year-old skier Dana Basilone struck a split rail fence, and her mother argued that Burch Hill should have padded it. Defendant moved for summary judgment stating there was no duty to pad poles or fences off skiable terrain, away from slopes or trails. In concluding that a triable issue of the post’s location on or off a trail, the court impliedly suggests that were the post found to have been on a skiable trail, then an argument could be made that defendant should have padded it. “On the record before us, we cannot conclude as a matter of law that the infant, an inexperienced skier, assumed the risk related to this type of man-made obstacle located within the confines of the ski trail.” Id. at 424 [emphasis added]. See also De Lacy v. Catamount Development Corp., 755 N.Y.S.2d 484 (N.Y. App. Div. 2003) (denial of summary judgment affirmed, as genuine issue of material fact with respect to whether 7-year-old was aware of, appreciated, and voluntarily assumed inherent risks of skiing, including falling from lift). This correlation by the courts between an individual skier’s own experience and comprehension of possible risks, and the level of risk actually assumed, led to the dismissal of a complaint brought by a skier injured from contact with a “submerged ice divot.” Painter v. Peek’n Peak Recreation, Inc., 769 N.Y.S.2d 678 (N.Y. App. Div. 2004). The court concluded that Painter, a skier with 60 years of experience, had assumed the particular risk of collision with the divot. Id. The risk of injury by another skier has been declared an inherent risk of downhill skiing; however, the risk actually assumed by the plaintiff is measured based on the background and experience of the plaintiff. Lamprecht v. Rhinehardt, 778 N.Y.S.2d 310 (N.Y.App. Div. 2004). See also Zielinski v. Farace, 737 N.Y.S.2d 199 (N.Y. App. Div. 2002). However, New York trial courts have questioned whether another’s negligence is in fact an inherent risk, and whether proof of reckless conduct is required to survive summary disposition of a claim. See discussion of this emerging conflict in Martin v. Fiutko, 2005 WL 742368 (N.Y. Sup.). At Hunter Mountain there is an expert trail named Eisenhower Drive. An intermediate skier inadvertently found himself on Eisenhower, having intended to take a less difficult trail. He encountered a small drop off, a patch of ice, and then a tree, the impact of which rendered him paraplegic. In attempting to avoid an assumption of inherent risk defense, plaintiff alleged that the owner’s signage and warnings were inadequate, and that he would not have been on the trail in the first place if properly warned. The court determined that even were plaintiff’s argument proved, which it was not, such a failure could not be considered a proximate cause of plaintiff’s injury. Lapinski v. Hunter Mountain Ski Bowl, Inc., 760 N.Y.S.2d 549 (N.Y. App. Div. 2003). Eisenhower Drive was the setting of an earlier federal case that was allowed to proceed to the jury on whether trail conditions themselves created a reasonable or unreasonable risk of harm for plaintiff, who fractured both legs on encountering a manmade berm. Younger v. Hunter Mountain Ski Bowl, Inc., 1995 WL 170269 (N.D.N.Y. 1995).