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.
Cases
Review a few Ski Law cases from New York below.
Plaintiff appealed and court of appeals held that a fact issue existed as to whether ski resort was negligent in operation of the chairlift.
Defendant moved for summary judgment and the trial court denied the motion. The court of appeals affirmed, holding that that there was “a triable issue of fact whether defendant’s conduct rose to the level of recklessness and thus was over and above the risk assumed by plaintiffs’ daughter, a novice skier who was injured while skiing slowly on an easy trail in a slow skiing area. Indeed, we note that defendant struck plaintiffs’ daughter with such force that the daughter’s arm was “shattered” and defendant’s kidney was lacerated,” and thus there was “at least a question of fact as to whether the defendant’s speed in the vicinity and overall conduct was reckless.
The court found that defendant was not liable pursuant to the immunity afforded under General Obligations Law § 9–103, and further that the credible evidence supported a finding that Sonnenberg had assumed the risk of injury. The claim was dismissed.
The court of appeals found that the trial court properly denied the motion. The lift operator failed to stop the lift and prevent the release of plaintiff into the unloading area, resulting in plaintiff’s injuries. Plaintiff’s deposition testimony demonstrates that plaintiff and her son were frantically attempting to untangle plaintiff’s skis from the snowboard as the lift approached the unloading area, and that plaintiff’s son yelled to her that he was unable to do so. Plaintiff’s expert relied on that testimony as well as other evidence in concluding that the top lift attendant had sufficient time in which to observe plaintiff’s distress and to engage in what defendants’ night lift operation supervisor characterized as the exercise of judgment to slow or stop the lift. According to plaintiff’s expert, once braked the lift would have come to a stop almost immediately, which would have enabled plaintiff and her son to exit the lift in a safe and controlled manner.
Plaintiff appealed and the court of appeals found that the accident was the result of inherent risks in downhill skiing. Defendant made prima facie showings of entitlement to judgment as a matter of law based on the doctrine of assumption of risk; plaintiff admitted awareness of the inherent risks of downhill skiing and defendants submitted proof that they did not enhance such risks. Plaintiff failed to show any issue of fact, dismissal affirmed.
Estate of snowmobile driver who was killed brought wrongful death action against owner of property on which gate was located, and against company that maintained the snowmobile trail. The trial court granted summary judgment in favor of property owner, and denied motion for summary judgment filed by company that maintained trail.
General Obligations Law § 9–103 “grants a special immunity to owners,
lessees or occupants from the usual duty to keep places safe” when those using the property are engaged in specified recreational activities. It was undisputed that decedent was engaged in a covered activity, i.e., snowmobiling, and that the property had been used extensively for snowmobiling for years and was suitable for that purpose. But the trial court determined that the statute was inapplicable because Sno–Seekers was guilty of “ affirmative” acts of negligence, thereby rendering the statute inapplicable pursuant to section 9–103(2)(a).
The trail maintenance company appealed. The court of appeals found that Sno–Seekers was not guilty of willful or malicious conduct so as to trigger the statutory exception under General Obligations Law § 9–103(2)(a), and granted the motion of defendant Northern Erie Sno–Seekers, Inc. for summary judgment dismissing the complaint against it.
The court of appeals found that the bike path on which snowmobiler was traveling when he struck guy wire was proper subject for immunity under recreational use statute, as path was the type of property which was not only physically conducive to snowmobiling but was also a type which would be appropriate for public use in pursuing snowmobiling as recreation. That path was held open to public did not preclude utility from asserting immunity, since utility was not a municipality and path itself was undeveloped and unsupervised. Utility, as owner of guy wire attached to utility pole, had authorized presence on premises where snowmobiler struck guy wire, and thus was “occupant,” under recreational use statute, and owed no duty to keep premises safe for snowmobile operation. Court of appeals affirmed dismissal.
Defendants argue that they are entitled to summary judgment dismissing the complaint because encountering a “stump” on the trail was an inherent risk of snowboarding that plaintiff voluntarily assumed. In the alternative, Windham requests dismissal of the complaint as against it on the basis that it was an out-of-possession landlord that owed no duty of care to plaintiff.
Plaintiff contends that summary judgment should be denied as he did not assume the risk of hidden defects that were allowed to become hazards. He argues that the Whiskey Jack trail was negligently created because it allowed vertical obstacles to remain on the trail. He also contends that defendants continuously covered the trail with snow which concealed stumps and created a trap for everyone using the facility. He does not address Windham’s alternate argument for dismissal.
Plaintiff’s argument that he did not assume the risk because defendants created a trap-like condition by negligently constructing and maintaining the trail fails to raise a triable issue of fact ( see Alvarez, 68 N.Y.2d at 324; Farone, 51 A.D.3d at 602). Plaintiff does not dispute that the object that he claims his snowboard struck, i.e. the ” stump,” is statutorily enumerated as an inherent risk associated with downhill skiing and snowboarding. Defendant’s motion for summary judgment granted.
We affirm. Claimants argue that the doctrine of primary assumption of risk is inapplicable here because the rail at issue was defective and unreasonably dangerous-and, thus, presented an increased risk beyond that inherent in the sport.
In New York, expert skiers may assume the inherent risk of colliding with another skier while skiing.
Sontag asserted that Holiday Valley could have provided more lighting to make skiing conditions safer. Holiday Valley filed a Motion for Summary Judgment arguing that Sontag was an experienced skier who had skied at Holiday Valley more than 100 times over a 30 year period and was “sufficiently aware of the inherent risks in downhill skiing, including the risk of injury caused by moguls or bumps in the terrain regardless of whether they could be seen.” The court granted Summary Judgment stating that “while more light at the bottom of the trail might have made the conditions safer for plaintiff, “the mere fact that a defendant could feasibly have provided safer conditions’ is beside the point, where, as here, the risk is open and obvious to the participant, taking into consideration his level of experience and expertise, and is an intrinsic part of the sport.” Id. (citing Simoneau v. State of New York, 248 A.D.2d 865, 866-67 (N.Y. App. Div. 1998)).
To recover in New York, plaintiffs must prove that the risk was not open and obvious to the participant, taking into consideration participant’s level of experience and expertise. Further, plaintiff must prove a hazardous condition was not an intrinsic part of the sport. “Where the risks of a sporting activity are fully comprehended and obvious, plaintiff has consented to them and the defendant has performed its duty.” Bailey v. Town of Oyster Bay, 642 N.Y.S.2d 903, 904 (N.Y. App. Div. 1998).
The Jury returned a verdict for $18,000 for pain and suffering, but did not award Singh damages for future pain and suffering. The court held that the Jury’s award for past and future pain and suffering “deviated materially from what is reasonable compensation.”
Martin sought damages for his injuries asserting that Fiutko acted recklessly. Fiutko filed a Motion for Summary Judgment claiming that skier collisions are an inherent risk of skiing under New York’s General Obligations § 18-101. Gen. Oblig. § 18-101. Following Morgan v. State of New York, the court denied summary judgment stating that Fiutko’s conduct raised a triable issue of fact as to whether he acted recklessly. Morgan v. State of New York, 90 N.Y. 2d 471, 484 (N.Y. App. Div. 1997) (holding that participants in sport “will not be deemed to have assumed the risks of reckless or intentional conduct”).
In New York, reckless conduct while skiing raises a triable issue of fact.
In New York, passing a skier within six feet is not reckless conduct.
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).