Jamieson v. THE STATE OF NEW YORK and THE OLYMPIC REGIONAL DEVELOPMENT
AUTHORITY, #2000-007-005, Claim No. None, Motion No. M-61255
Claimants made an application to late file a claim premised upon a ski
accident that occurred at Whiteface Mountain Ski Center. The application
included a report from an expert asserting various alleged dangerous conditions
at the ski center. The motion was granted.
JoANN JAMIESON and MARK JAMIESON
Footnote (claimant name)
THE STATE OF NEW YORK and THE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
Footnote (defendant name)
John L. Bell
KENNETH P. RAY, P.C.(CHARLES W. WASON, ESQ., of Counsel)
HON. ELIOT SPITZER, ATTORNEY GENERAL(FREDERICK H. McGOWN, III, ESQ., Assistant Attorney General, of Counsel)
April 11, 2000
See also (multicaptioned
Claimants have made an application for permission to late file a claim
pursuant to Court of Claims Act § 10. The following papers were read and
considered by the court:
Notice of Motion, Affidavit of Charles
W. Wason, Esq., Annexed Exhibits,
Affidavit of Mark Jamieson, Affidavit
of JoAnn Jamieson 1, 2, 3, 4, 5
Affirmation in Opposition of Frederick
H. McGown, III, Esq., Affidavit of A.
James Allott 6, 7
On December 25, 1998, claimant JoAnn
was injured while skiing on a trail
known as "Excelsior" at Whiteface Mountain Ski Center (hereinafter Whiteface) in
the Town of Wilmington, Essex County. Whiteface is owned by the State of New
York and operated by the Olympic Regional Development Authority. Mr. and Mrs.
Jamieson and their four children arrived at Whiteface on the morning of December
25th and skied without incident until mid-afternoon, including a prior run by
claimant down Excelsior. Excelsior was classified by Whiteface as a trail for
skiers of intermediate ability. At approximately 3:00 p.m., claimant, who
characterized herself as an intermediate skier, states that she came upon a
section of Excelsior that was entirely covered with ice. She was unable to
negotiate the icy area and ostensibly skied off the trail and into the woods,
where she struck trees.
Claimant was taken down the mountain in a sled by the ski patrol. She was
seen at a first-aid station at Whiteface and then transported by ambulance to a
nearby hospital. Thereafter, she was "air-lifted to the Hartford Hospital"
(Affidavit of Wason, ¶ 6), which was near her home in Connecticut.
Claimant allegedly sustained, among other things, fractures to her back, left
leg, left hip and right hip. She underwent several surgeries and remained
hospitalized until January 9, 1999, when she was transferred to a convalescent
home where she remained until February 28, 1999.
Claimants failed to serve a notice of intention or claim within 90 days of the
incident and are thus seeking permission to late file a claim. The initial
issue is whether the motion was filed before the expiration of the Statute of
Limitations applicable to filing a like claim against a citizen (Court of Claims
Act § 10). The proposed claim is for personal injuries purportedly
caused by negligence and is thus governed by a three-year Statute of Limitations
(see, CPLR 214). The motion is timely since it was filed approximately
14 months after the claim accrued. The court will next consider the relevant
The factors weighed by the court on an application to late file include: (1)
whether the delay in filing was excusable; (2) whether the State had notice of
the essential facts constituting the claim; (3) whether the State had an
opportunity to investigate the circumstances underlying the claim; (4) whether
the claim appears meritorious; (5) whether substantial prejudice resulted from
the failure to timely file and the failure to serve upon the Attorney General a
timely claim or notice of intention; and (6) whether any other remedy is
available (Court of Claims Act § 10). The court is afforded
considerable discretion in determining whether to permit the late filing of a
claim (see, e.g., Matter of Gavigan v State of New York, 176 AD2d 1117).
The presence or absence of any particular factor is not dispositive (Bay
Terrace Coop. Section IV v New York State Employees' Retirement System
Policemen's & Firemen's Retirement System, 55 NY2d 979).
The primary excuse proffered by claimants is the extent of the injuries
sustained by JoAnn Jamieson. The excuse for failing to file in a timely manner
must be reasonable (Carmen v State of New York, 49 AD2d 965; Stabile v
State of New York, 12 AD2d 698). Complete physical or mental disability is
not a prerequisite to a reasonable excuse (Carmen v State of New York,
supra; Stabile v State of New York, supra). Hospital stays for less
than the entire 90-day period following an incident have been found sufficient
to excuse untimely filing of a claim (Cole v State of New York, 64 AD2d
1023; Plate v State of New York, 92 Misc 2d 1033, 1039).
Claimant describes her injuries and convalescing, in part, as follows:
"In the accident I broke my left femur, shattered my left hip socket, broke my
right hip socket, and broke my back at L2. My back above L7 was unstable. I
suffered facial abrasions, a closed head injury, a loss of consciousness and
damage to the spinal canal. I spent months in the hospital and convalescent
home convalescing. I was in a wheelchair for months, then a walker, followed by
crutches and now get around by use of a cane." (Affidavit of JoAnn Jamieson,
Some of claimant's medical records are included in the motion papers, and it is
readily apparent that claimant sustained several serious injuries in the skiing
accident. She did not return home until February 28, 1999 and undoubtedly the
focus of her energy and attention was upon attempting to readjust to life in
light of the problems caused by her injuries. The court finds the claimants'
excuse reasonable and the first factor weighs in favor of granting the relief
The court further finds that claimants have successfully established notice
and opportunity to investigate. Claimant was removed from the mountain by
members of Whiteface's ski patrol and received initial treatment at a first-aid
station at the base of the mountain. A report was prepared regarding the
accident which, among other things, lists the place of the accident, the slope
conditions and the members of the ski patrol who assisted claimant. Such facts
establish notice and an opportunity to investigate (see, Carmen v State of
New York, 49 AD2d 965, 966, supra).
The presence of notice and an opportunity to investigate generally establish a
lack of substantial prejudice. Defendants, however, argue that they will be
prejudiced in defending the action because the trail was redesigned following
the accident as part of extensive modifications on the mountain to accommodate
the installation of a gondola in 1999. It is apparent from the papers
presented, including the affidavit of A. James Allott, that at least some of
defendants' employees are familiar with the pre-modification configuration of
Excelsior. The court is not convinced that defendants will suffer substantial
prejudice in defending the claim.
The next factor, a meritorious claim, is significant since it would be an
exercise in futility and a waste of all parties' resources to permit a meritless
claim to proceed (Savino v State of New York, 199 AD2d 254; Matter of
Professional Charter Servs. v State of New York, 166 Misc 2d 306, 308). The
hurdle for the merit factor is, however, set low. A claimant must merely show
that the papers submitted establish reasonable cause to believe a valid claim
exists (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d
The Legislature has explicitly "recognized that skiing is a voluntary activity
that may be hazardous regardless of all feasible safety measures that can be
undertaken by ski area operators" (General Obligations Law § 18-106).
Accordingly, participants in downhill skiing and snowboarding assume the
significant risks inherent in such activities, including the potential for
injury-producing accidents attributable to terrain, weather conditions, slope
conditions, trees and person-produced objects that are incidental to maintaining
a ski area (Jordan v Maple Ski Ridge, 229 AD2d 756, 757; Fabris v Town
of Thompson, 192 AD2d 1045, 1046). To establish liability, a claimant must
show that the accident was caused by a unique condition, which constituted a
hazard over and above the usual dangers inherent in the sport (Simoneau v
State of New York, 248 AD2d 865; see, Morgan v State of New York, 90
NY2d 471, 485).
Here, claimants have produced, inter alia
, a report from an engineer,
Helge Lien, who purports to be an expert in ski accidents and who opines that
there were four dangerous conditions that caused claimant's fall and
The court observes that the strength of some of the expert's conclusions appear
emaciated even upon cursory review when juxtaposed with the prevailing law and
the factual scenario set forth by claimant. Nevertheless, the expert's
contention that claimant's accident was caused by an unusually dangerous patch
of ice that existed on Excelsior does not plummet to the level of being
"patently groundless" or "frivolous" (Matter of Santana v New York State
Thruway Auth., 92 Misc 2d 1, 11, supra; see, Sytner v State of New
York, 223 AD2d 140). Further, Mr. Jamieson avers that during the time he
was with his wife in the first-aid station at the foot of Whiteface there was a
steady stream of injured skiers and a "continuous flow of ambulances" (Affidavit
of Mark Jamieson, par. 8). The court finds that the papers presented provide a
sufficient foundation to establish the factor of merit as such factor is broadly
interpreted for purposes of a section 10(6) application.
There is no other apparent remedy available to claimants.
Upon weighing and considering the factors set forth herein, the court
exercises its discretion and grants claimants' application.
ORDERED that claimants' motion is granted and they are directed to
serve and file their claim within 30 days of service of a filed-stamped copy of
Plattsburgh, New York
HON. JOHN L. BELL
Judge of the Court of
The proposed claim of Mark Jamieson is derivative. Therefore, references herein
to claimant are to JoAnn Jamieson unless otherwise noted.
The court is cognizant that there is authority holding that the physical injury
of one spouse does not establish an excuse for the other spouse who is pursuing
a derivative claim (Rios v State of New York
, 67 AD2d 744). Rios
however, has arguably been eroded by the Court of Appeals holding that an
action for loss of consortium should be joined with the main action by the
impaired spouse whenever possible (Buckley v National Frgt
., 90 NY2d
210). Moreover, in the matter at bar, the court would not change its ultimate
conclusion herein even if Mark Jamieson was found not to have an acceptable
Claimants' expert states that the following "[d]angerous conditions" existed on
"1. Snowmaking operations created `white ice' that was undetectable by
2. There was no barrier to prevent Jamieson from inadvertently falling
off the trail.
3. Trees had been allowed to remain where they could be struck by
4. There was no clear and effective warning of the long and steep
(Exhibit G annexed to Affidavit of Charles W. Wason,
Esq., at 4).