HYLAND v. THE STATE OF NEW YORK, #2001-007-118, Claim No. 95790, Motion Nos.
Claimant Richard M. Hyland was seriously injured while skiing on an expert
trail at Whiteface Mountain Ski Center. Claimants alleged that defendant
negligently failed to mark a hidden bare spot and that a wooden fence adjacent
to the trail constituted a dangerous condition. Both sides moved for summary
judgment. The court found no basis for liability regarding the alleged bare
spot. Factual issues were found, however, regarding the wooden fence. Both
RICHARD M. HYLAND and ELEANOR HYLAND
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JOHN L. BELL
FARACI & LANGE, LLP (BRIAN M. ZORN, ESQ. and MATTHEW F. BELANGER, ESQ., of Counsel)
HON. ELIOT SPITZER, ATTORNEY GENERAL (FREDERICK H. McGOWN, III, ESQ., Assistant Attorney General, of Counsel)
August 8, 2001
See also (multicaptioned
Defendant has made an application for an order granting summary judgment
dismissing the claim. Claimants have made a cross-motion for summary judgment
on the issue of liability.
papers were read and considered by the court:
Defendant's Notice of Motion, Affirmation of Frederick
H. McGown, III, Esq., Annexed Exhibit, Affidavit of
Ted Blazer, Annexed Exhibits, Affidavit of A. James
Allott, Annexed Exhibits, Affidavit of Jeffrey B.
Byrne, Annexed Exhibits, Additional Exhibits
(including videotape and EBT transcripts), Defendant's
Memorandum of Law 1 - 11
Claimants' Notice of Cross-Motion, Affidavit of Brian
M. Zorn, Esq., Referenced Exhibits (set forth in three
notebooks and containing numerous parts of EBT
transcripts, photographs, maps, reports, a videotape),
Affidavit of Claimant Richard M. Hyland, Affidavit of
Kevin Williams, Annexed Exhibits, Affidavit of Paul
K. Maurer, M.D., Affidavit of Helge Lien, Claimants'
Memorandum of Law 12 - 20
Reply Affirmation of Frederick H. McGown, III, Esq.,
Annexed Exhibits, Affidavit of Elizabeth Lynne
Brittain, Annexed Exhibits, Reply Affidavit of Alfred
James Allott, Annexed Exhibits, Affidavit of Jasper E.
Shealy, Annexed Exhibit 21 - 28
Reply Affidavit of Brian M. Zorn, Esq., Annexed
Exhibits 29 - 30
Supplemental Brief in Opposition to the State's Motion
for Summary Judgment, Letter Memorandum of
Defendant (dated June 1, 2001) 31 - 32
Filed Papers: Claim, Answer 33 - 34
On March 29, 1995, claimant Richard M.
sustained severe permanent injuries
while skiing at Whiteface Mountain Ski Center (hereinafter
in the Town of Wilmington, Essex
County. Claimant alleges that as he descended an expert trail known as
"Mountain Run" he caught a ski on an unmarked bare spot causing him to fall.
After falling, he slid headfirst into a wooden fence at the side of the trail.
Claimants subsequently commenced the current claim alleging, inter alia
that defendant negligently failed to mark a hidden bare spot and that the wooden
fence adjacent to Mountain Run constituted a dangerous condition. Following
extensive disclosure, defendant moved for summary judgment dismissing the claim.
Claimants cross-moved for summary judgment on the issue of liability.
Skiing Experience and Knowledge of Claimant
At the time of the accident, claimant was 45 years old and an experienced
skier. He had started skiing while in high school during the mid-1960's and
continued skiing when attending a community college. He did not ski between
December 1969 and February 1971 because he served in Vietnam, where he was the
recipient of numerous medals for his military
Upon returning from Vietnam,
claimant resumed skiing and also worked in several ski shops. Claimant
testified at his deposition that his skiing decreased after his children were
born. In 1988, however, his children became involved in competitive skiing and
the next year claimant volunteered as a ski coach, which he continued doing
until the March 1995 accident. Claimant characterized his skiing ability, as of
the time he started coaching, as "advanced intermediate," which he defined as
"Advanced intermediate, in my mind it's somebody who can parallel ski more than
95% of the time showing a degree of proficiency as opposed to maintaining an
edge, be able to ski in several different kinds of snow, new fallen snow, packed
powder, mogul areas with about that same level of competency one to the other."
(Hyland EBT, at 61).
After claimant began coaching skiers, he joined the United States Ski Coaches
Association (hereinafter USSCA) and attended clinics sponsored by USSCA. Part
of the requirements for membership in the USSCA and participation in its clinics
included executing a waiver and release of liability to such organization. The
waiver and release signed by claimant prior to the 1994-95 ski season provided,
"In consideration for the rights and privileges associated with
‘participation in a United States Ski Coaches Association event', I
acknowledge and agree to be bound by the following:
"1. Identification of Risks, I understand that participation in any
skiing activity, including but not limited to, preparation for, participation
in, coaching and related activities in alpine, nordic, freestyle, speed and
snowboarding competitions (‘the Activity'), involves risks of serious
injury, including permanent disability, death, and other losses, both to me and
my property. I understand that these injuries and losses might result not only
from my actions, but the actions, inactions, or negligence of others.
"2. Assumption of the Risk, I agree that I am responsible for my safety
while participating in the Activity and that such responsibility includes
participating in the Activity only: a) when I am both physically and
psychologically prepared to participate safely, b) after fully familiarizing
myself with the venue before beginning the Activity, and c) while using the
equipment of a type and condition reasonably necessary to safely participate in
the Activity. I assume all risks connected with responsibility for any injury
or loss connected with my participation in the Activity." (Ex. B annexed to
Byrne Affidavit; see also, McGown Affirmation of Jan. 9, 2001, at par.
12; Hyland EBT, at 149-152).
Claimant acknowledged that he was familiar with the warnings to skiers
typically referenced on the back of ski tickets and set forth on posters where
tickets were sold. The warning posters in place at Whiteface on March 29, 1995,
"WARNING TO SKIERS: Downhill skiing, like many other sports, contains
inherent risks including, but not limited to the risk of personal injury,
including catastrophic injury, or death, or property damage, which may be caused
by variations in terrain or weather conditions; or, surface or subsurface snow,
ice, bare spots or areas of thin cover, moguls, ruts, bumps, or other persons
using the facilities; or rocks, forest growth, debris, branches, trees, roots,
stumps; or other natural objects or man made objects that are incidental to the
provision or maintenance of a ski facility in New York State. New York law
imposes a duty on you to become apprised of and understand the risks inherent in
the sport of skiing, which are set forth above, so that you make an informed
decision of whether to participate in skiing notwithstanding the risks. New
York also imposes additional duties upon you, to which you must adhere, for the
purpose of avoiding injury caused by any of the risks inherent in skiing. If
you are not willing to assume all of these risks and abide by these duties, you
must not participate in skiing at this area." (Ex. I annexed to Allott
Affidavit; see, 12 NYCRR § 54.5[l]).
Numerous other warnings were posted at Whiteface (see, e.g., Ex. I
annexed to Allott Affidavit) and ski condition reports were available at many
locations (Allott Affidavit, par. 11). In addition, a daily risk awareness
class was provided to skiers interested in instruction about such topics
(id., par. 14).
Conditions at Whiteface on the Morning of March 29
Claimant traveled to Whiteface on March 29, 1995 to participate in a clinic
sponsored by USSCA.
Claimant recalled that,
upon arriving at the base lodge on the morning of March 29, clinic participants
were told that it was "spring skiing and there were bare spots and thin snow in
places and coming down from the top of the mountain we had to be careful, * * *
from the top of the mountain down had a few spots where you had to go over straw
and other stuff" (Hyland EBT, at 195; see also
, Hyland Affidavit, par.
19). Indeed, Timothy R. Ross, a representative of USSCA who was at Whiteface on
March 29, testified at his deposition that the existence of spring conditions
was apparent from glancing at the mountain while driving into the parking lot
(Ross EBT, at 36-37). The videotape taken on March 29 (Claimants' Ex. T-3-A;
Defendant's Ex. B) and numerous photographs from March 29 and 30, 1995 reveal,
indeed, that bare spots were readily apparent on the trails at Whiteface
., Claimants' Ex. E-3, E-4, E-5, E-5A, E-9, E-11, E-11-A). The
"General Snow Condition Report" prepared at Whiteface on the morning of March
29, which was posted for review by the public, listed the trails that were
as having "spring conditions" (Ex. III
annexed to Allott Affidavit), a term defined by the Ski Areas of New York as
"This term is used to characterize the wide variety of surface conditions which
results from the alternate freezing and thawing of snow cover in spring weather.
This term is used in place of other terms when the usual surface descriptions
cannot accurately or completely describe the situation, that is, when no single
surface type covers at least 50% of the skiable surface of a trail." (Ex. II
annexed to Allott Affidavit; see also, Allott Affidavit, par. 9).
Before clinic participants met for a skiing exercise on the mountain, they
were permitted to take some "free skiing" runs, which claimant described
"[W]e were just going to ski not having to perform any certain activities other
than skiing down this one trail and meeting at a certain spot and getting there
by making whatever turns you wanted to make, short turns, medium turns, wide
turns." (Hyland EBT, at 216).
Claimant related that the purpose of the free skiing runs was to "get our skis
underneath us" (id., at 230), which he defined as:
"It means, you know, off from your first run of skiing and second run of skiing
you're a little stiff and just get your body placement so you are where you feel
natural or your skis neutral and natural. Just kind of get comfortable and
ski." (Id., at 231).
Claimant stated that he took two chair lifts to reach the summit of "Little
Whiteface" for his first free skiing run. While going up the first lift, over a
section of Whiteface referred to as the "Lower Mountain," claimant observed an
area on the trail where the snow cover was so thin that straw had been placed on
the slopes (id., at 215).
The second lift ridden by claimant to ascend the summit of Little Whiteface
passed directly over the entire length of Mountain Run (see, e.g., Ex.
VII annexed to Allott Affidavit; Claimants' Ex. E-9). When asked at his
deposition whether he observed the slope below as he rode up the lift, claimant
responded, "I may have" (Hyland EBT, at 231). After reaching the summit of
Little Whiteface, claimant took at least one free skiing run without incident.
He stated, however, that he did not take a free skiing run on the Mountain Run
trail. He could not remember the name of the trail he skied down, but he
described the conditions on the trail as: "There was plenty of snow on the
trail, but off of the trail and in the woods, it was thin to bare" (Hyland
Affidavit, par. 21).
After taking one or two free runs,
and the other participants of the clinic met near the mid-station lodge and were
instructed to take the lift to the summit of Mountain Run (see
EBT, at 237-238). Claimant thus necessarily again rode the chair lift that
transported passengers over the length of the Mountain Run trail (see,
., Blazer Affidavit, par. 10 and 12). Claimant related that he may not
have observed Mountain Run while riding above it because he was conversing with
the other occupant of the chair and enjoying the views from the lift.
Conditions on Mountain Run
Because of the paucity of snow near the summit of Mountain Run, Patrol Foreman
Patrick Doyle and other members of Whiteface's ski patrol were busy constructing
a path of snow from the exit of the lift to Mountain Run on the morning of March
29. Doyle recalled that he had been working at such project from approximately
8:30 until 10:00. Doyle testified in relevant part as follows:
"Q And what else do you remember?
"A I remember in the middle of constructing that path the clinic people had
arrived, depart from the mid-station point of that lift and started down the
path while we were still constructing it. I remember they were skiing too close
too for the size of the path, too closely, one after another, and telling them
to take it easy, slow down, et cetera, et cetera.
"Q This is you just described this is before the clinic group got to Mountain
"A They were coming down the path to get to the trail. They had already depart,
gotten off the lift at the mid-station point.
"Q Okay. What else do you remember?
"A That there was too many, probably too many people in the clinic for
conditions of the trail up there.
"Q Can you tell me the name of the trail you are referring to?
"A The Mountain Run.
"Q Okay. You think there were too many people in the clinic for the Mountain
"A Yes." (Doyle EBT, at 15-16).
* * *
"Q You mentioned that I think it was your view that there were too many people
in the clinic for the Mountain Run trail?
"A That's right.
"Q Why do you say that?
"A Because we were operating under spring conditions, and from what I understood
the intent of the clinic was that, you know, it was just probably not safe to
have that many doing it.
"Q Why do you say that?
"A Well, basically because one of these, these clinics involve high speed, and
if you are going to involve that you need all the room you can get.
"Q What did you know about the clinic before the clinic?
"A Basically that it was a clinic consisting of race coaches. And that's as far
as my extent of it as far as what I knew beforehand." (Id., at
* * *
"Q When you were up on the mountain when you had the concern that it was
probably not safe to have that many skiers in the clinic going down the Mountain
Run trail, did you report that to anyone?
"A Well, basically it is reported in a general sense that the spring conditions
of the trail which are reported on our daily trail condition report on that in
itself says spring conditions are prevalent." (Id., at 23).
* * *
"Q In any event, what was it about spring conditions that cause you to have
concern that there were too many skiers in the clinic?
"A There was quite large bare spots on the Mountain Run.
"Q Okay. So it was the bare spots that raise the concern about the clinic being
on the mountain that day?
"A Yes, pretty much.
"Q I'm sorry, I said ‘on the mountain,' I meant on the Mountain Run
"A Right, yes." (Id., at 27-28).
Doyle was not, however, the patrol member assigned to inspect Mountain Run on
the morning of March 29. It had been inspected and authorized to be open by
Christopher Gallagher. Gallagher skied down the trail and reported it open at
8:41 a.m. (Gallagher EBT, at 32). Gallagher recalled the conditions as
"A [I] inspected it for skiing conditions. I mean, primarily that's what we are
out there in the morning, just looking for what are the conditions, and that
morning it was spring conditions.
"Q Okay. When you put SC next to it, that means spring conditions?
"Q And what does that mean?
"A In the spring you have a melt/freeze process, and whether it is hard in the
morning or loose in the morning, in the spring if you have a bunch of bare spots
and lots of corn snow and not such great access from the ramps, and it is warm
out, you know, by the middle of the day, spring conditions is a pretty much what
we go with in the spring." (Id., at 33).
Instructions to Clinic Participants
Clinic participants, including claimant, had been informed that their descent
down Mountain Run was going to be videotaped by Timothy Ross. Ross recalled the
directions given to participants as follows:
"Q For the purpose of the videotaped runs what was the skier supposed to do, you
know, the student skier supposed to do?
"A Make medium to short radius turns starting at the top of that of the pitch on
Mountain Run and skiing down past me. I positioned myself on the hill and just
making short to medium radius terms [sic] skiing at their comfortable
"Q When you say ‘skiing at their comfortable level,' do you mean that in
terms of speed or how did you mean that?
"A In terms of speed, in terms of turn shape, turn size. What we were really
trying to do there was to just give them the chance to see some footage of
themselves in their typical skiing so it was a very general assignment.
"A So it wasn't make five turns from here to here or make 15 turns from here to
here. It was here is a chance for you to get videoed in your skiing so you can
get some visual input." (Ross EBT, at 17-18).
Claimant essentially agreed with Ross' testimony regarding the instructions
given to participants:
"Q * * * What specific instructions did Tim Ross provide?
"A We were to ski down the hill making short and medium turns and that he would
be videotaping us, and we would critique ourselves and other group members."
(Hyland EBT, at 241).
* * *
"Q Was there any indication or any instruction provided to you as to the speed
that you should make your descent?
"A We were attempting to take slow short and Medium turns. We were working on
form." (Id., at 247; see also, Hyland Affidavit, par. 22
[indicating that each clinic participant would be videotaped making one run
doing slalom and giant slalom turns at a comfortable speed].)
The testimony, photographs and videotape reflect that the snow cover was
fairly good on the first part of Mountain Run. Approximately halfway down the
trail, however, there were bare spots. As a skier descended Mountain Run, one
large bare spot existed to the skier's left and another to the skier's right.
The bare spots were located near the intersection of the "1900 Road" and
Mountain Run, in an area where spring conditions gave rise to "chronic bare
spots" (see, e.g., Horst Weber EBT, at 11-12). The bare spot to a
skier's left was marked with two "lollipops." A "lollipop" is ostensibly ski
slang describing an orange pole with an orange circle on top, which is sometimes
used to mark hazards on or near trails. There were no lollipops marking the
bare spot to a skier's right.
Numerous patrol personnel from Whiteface were questioned during disclosure
regarding the prevailing policy for marking bare spots on the mountain. A.
James Allott stated that merely because a bare spot was difficult to see did not
necessitate marking such spot since "the skier has responsibility and they are
to be skiing in control and they are basically able to maneuver around bare
spots" (Allott EBT, at 56). Allott noted that if there was "some sort of
obstacle associated with a bare spot," such as "a sharp point at this rock ... a
stump or something" then the spot would be marked (id., at 55-56).
Thomas P. Colby testified essentially consistent with Allott. Paul Casson
related that generally bare spots caused by the weather were not marked whereas
bare spots artificially created, such as by grooming, would be marked. While
Casson agreed that visibility of the bare spot was not a controlling
consideration, he added that "personally I would mark a bare spot if it was in a
certain location where you could not see it" (Casson EBT, at 13). Virginia
Rodgers testified that "[y]ou can't mark everything that is out there" and,
while she related that an item such as a rock in the middle of a trail or a
"man-made" object might be marked, she added that "[w]e don't mark bare spots
because bare spots are made by * * * weather * * *" (Rodgers EBT, at
Patrick Doyle stated that "most likely a lollipop" would be put up to mark a
bare spot that was "out of the skier's line of sight" (Doyle EBT, at 109).
Christopher Gallagher, who inspected and authorized the opening of Mountain Run
on March 29, testified as follows:
"Q If you have spring conditions and there are bare spots, do those get marked
under any circumstances with lollipops?
"A No. Generally not unless there is a sink hole, like something that you drop
"Q You mean within the bare spot?
"A Yeah. It is really not a bare spot. You are talking spring conditions if we
mark anything, and I would have to say that where there are sink holes, that
trail probably isn't even open by then, but the only thing that we open that
would be a melt/freeze factor would be sink holes because part of it, the trail
is hollowed out so the closer you get to the sink hole, the chances are you
could fall through the snow.
"Q Are you aware of any sink holes on Mountain Run?
"Q So as far as Mountain Run is concerned –
"A Right, there are no sink holes.
"Q Under any circumstances on which you would mark bare spots on Mountain Run
"A Especially not on Mountain Run because you can see them from the lift. You
are riding right over them. You are looking at the trail that you are going to
ski. And, you know, you say, ‘There is a rock I want to miss. There is a
big bare spot I want to miss.'
"Q When you saying riding the chair, you are talking about if the skier is
looking at the trail while riding up the lift?
"A Right. The lift is over the trail." (Gallagher EBT, at 14-15).
Claimant's Run and Fall on Mountain Run
Timothy Ross videotaped the clinic participants as each skied down Mountain
Run. Ross was located part way down the trail and to the skier's left. The
videotape reveals that 39 participants descended Mountain Run before claimant.
Three of the 39 fell at various places while skiing down the trail. Claimant
testified as follows regarding his ability to observe the runs of prior
"Q As you were waiting in your assembly point, were you able to observe the
individual skiers make their runs?
"Q And did you, in fact, watch skiers as they made their runs?
"A Some of them.
"Q Were you able to watch, if you selected to watch a skier were you able to
watch the skier's entire run from beginning to end?
"MR. ZORN: Form.
"A Was I able to, yes.
"Q And did the individual skiers have, each take a course of their own choosing
as opposed to following the same course?
"A Correct." (Hyland EBT, at 247).
When initially asked whether he recalled skiing down Mountain Run, claimant
responded, "Not really" (Hyland EBT, at 256). He stated he did remember
studying the hill before starting the run in order to determine the "line"
(i.e., path) he wanted to use down the trail (id., at 257).
Defense counsel again inquired, "Do you recall any of the portion of your run
down the mountain from the time you left the group until you were injured?"
Claimant testified, "No" (id., at 258). Questioning regarding the
incident continued as follows:
"Q Do you recall making any observations concerning the condition of the slope
from the time you took off until the accident?
"MR. ZORN: Do you mean regarding bare spots or regarding anything?
"Q He didn't recall a bare spot, I'm asking any condition of the slope.
"A I remember from where I was taking off that there were lift towers I wanted
to avoid and that there was some sort of, something, an orange bamboo pole with
one of those orange circles on it that I was going to avoid. That honestly is
all I can tell you that I know for sure.
"Q Did you, or do you recall seeing Tim Ross at any time during the course of
"Q Do you have any recollection of the fall itself?
"A The only recollection I have of the fall is, and this is the,
‘recollection' is the word I'm going on, that I was skiing and all of a
sudden this big bare spot was in front of me just as I turned into it, that I
hit it with my ski, was mad because I was dulling my edges. I think I may have
seen a spark or two. This big flat sandstone-colored rock, a bunch of pebbles
and mud, and a rise or a bump to get out of it and trying to avoid it, not being
able to, and going over it and that's all I can recollect.
"Q Do you recall where this bare spot was located on the slope?
"A No." (Id., at 259-260).
* * *
"Q Can you describe the bare spot in terms of dimensions?
"A It was more than a ski length across and five or six ski lengths down. A ski
length is probably six feet. Six-four, maybe five." (Id., at
The witnesses of claimant's fall were not uniform in their recollection of the
relevant events. Timothy Ross, who was running the video camera near the fall,
stated that "one of [claimant's] ski edges caught in the snow" and caused him to
fall (Ross EBT, at 23), and that where claimant caught the edge of his ski
"[t]here were no bare spots in that area" (id
., at 35). Ross further
characterized claimant, prior to the fall, as skiing under control and at a
reasonable speed for the prevailing conditions (id
., at 38). Bart Hayes,
a ski instructor at Whiteface who was riding the chair lift above claimant when
he fell, related that claimant was skiing fast, not paying attention to the
trail and "didn't have control over his skis" (Hayes EBT, at 18-19). When asked
whether claimant's skis went over the bare spot, Hayes responded, "I believe
they did" (id
., at 46).
The videotape reflects that claimant's right ski, which was the uphill ski,
caught on something
and he started spinning
clockwise. Claimant fell as he spun and landed on his back. His momentum and
the grade of the mountain caused him to continue sliding across the trail. He
slid headfirst into a wooden fence at the edge of Mountain Run.
Wooden Fences on Whiteface
The wooden fence that claimant struck is one of many similar fences scattered
over Whiteface. The construction of the relevant fence pre-dated the 1980
Winter Olympic Games (see, Plausteiner EBT, at 43) and, although Mountain
Run was widened for the Olympics and used as a trail for some Olympic ski races,
the fence remained intact (id., at 35-36). Claimants' expert, Helge
Lien, described the physical composition of the fence:
"I have traveled to Whiteface Mountain on several occasions both during the ski
season and in the off-season to examine and measure the wooden wall at issue in
this case. It is a 10-foot tall U-shaped structure made from approximately 8" x
8" wooden posts with 3 x 10" cross members and 2" x 6" vertical slats. In the
back, the fence is braced on all sides with 4" x 4" lumber." (Lien Affidavit,
Ted Blazer, a former manager of Whiteface and the current Chief Executive
Officer of the Olympic Regional Development Authority, stated as follows
regarding fences on Whiteface and the particular fence relevant to the current
"5. The ski slopes at Whiteface Mountain Ski Center are generally defined by
the groomed surface provided to the skiers. Adjacent to numerous slopes
throughout the mountain are located fences which serve the function of
maintaining the snow upon the trails, serve as a visual definition of the edge
of trail, mark the convergence or divergence of various ski slopes, and protect
the terrain, trees and equipment located there behind.
"6. The Hyland accident took place at the intersection of two trails, Mountain
Run and Lower Thruway. At that location at the up hill end of a large growth of
trees is located a ten foot high wooden fence which extends around the up hill
tree growth on three sides. The growth itself is one which starts at a width of
approximately ten yards and increases in width as it moves down the mountain for
several hundred yards increasing to a maximum width of approximately 150-200
yards at its greatest width. Located behind the fence are trees, boulders
removed from the ski slope by blasting and other means, snow making pipes, and
other debris removed from the groomed service [sic] and placed outside such
surface within the trees adjacent to the designated ski slope."
* * *
"11. In addition to the fence which is located adjacent to the Mountain Run
trail which was the subject of the current action it is noteworthy that fences
of a similar design and structure are located at numerous locations throughout
the mountain. By way of example, Blazer Aff. Ex. A-C7 and A-C8 demonstrate the
location of fences within the ski area which serve to define the limitation of
the skiing boundaries as well as to control the movement of snow into areas
which are not designated as skiable terrain. The type of fence used at the
location of the Hyland accident is of a design which is used throughout the ski
* * *
"13. The cutting of trees or removal of trees at Whiteface Mountain Ski Center
falls under the jurisdiction of the Department of Environmental Conservation and
Adirondack Park Agency. Whiteface Mountain is not permitted, under New York
State Law, to cut trees without permits and plans approved by the Department of
Environmental Conservation and Adirondack Mountain Park Agency. Statutorily
Whiteface Mountain is restricted in trail widths and must maintain tree growths
adjacent to the slopes such that trails within Whiteface Mountain Ski Slope do
not become wider than (120-200 feet). The presence of the fence at the top of
the stand of trees adjacent to Mountain Run serves to protect those trees from
erosion by maintenance equipment, skier contact or other means which might serve
to endanger the life and health of the tree stand." (Blazer Affidavit).
Dusan Plausteiner, who was a manager of Whiteface for many years including
during the 1980 Winter Olympic Games, testified essentially consistent with
Blazer regarding the fences at Whiteface:
"Q Did you at any point for any reason discuss with anyone at Whiteface why that
fence was there? I am asking now apart from any reasons you may have thought on
"A No. There would be no reason for discussing it because the reason was quite
obvious if you look at the fence that it designated the point where the two
"Q Now I don't mean to be difficult but I don't understand what you mean when
you say designated point. Do you mean was it a sight warning?
"A No. It was a visual structure which designated where the trail split, yes.
Because with the vegetation whenever you work in areas like that the vegetation
will always have a die back so what you have at the time when you build the
fence and have the vegetation immediately behind it, it may grow to become
larger or die out because it was injured during the construction part so
"Q But if I understand you then it was a visual, you said it was a visual
structure so the skier would know that the trails split at that point?
"A It was a visual structure for the purpose of the skier could see it, yes. It
was also a structure there which prevented us from pushing the snow down because
that's very steeply down sloping of going down and allowed us to build up the
snow in front of it, and in that form shape the configuration of the trail
* * *
"Q And tell me again, and I don't mean to limit you if there is more than one
purpose, tell me the purpose why you think that specific fence was put
"A The fence was put there, I believe, in that particular location to define the
general area of the split in the two trails between Thruway and Mountain Run,
and in that form protected the trees, helped in what you call it building the
snow up on the upper area to create a better fall line for the skier to ski on
. . ." (Plausteiner EBT, at 45-46, 48).
Later in his deposition, Plausteiner expanded his explanation of the use of
fences at a "world class" ski area such was Whiteface (id., at 75-76),
which hosts international competitions, as follows:
"A But actually what I would say is contouring the trail, okay, because even so
we banked the snow up against fences in certain places for several hundred feet.
At the same time we still couldn't create a fall line but we certainly came a
long ways in complimenting the contour over the preexisting contour.
"Q You lost me.
"A * * * Let me put it this way: What I mean by contouring of the snow as an
extreme example for the 1980 Olympics there was certain areas in the mountain
where the snow on one side of the trail was probably one or two feet deep, and
on the opposite side was probably 20 feet deep.
"Q The same trail?
"A The same trail. And the reason for that was to sculpture the trail in such a
way that it was more conducive and had less side hill and fall away in it, and
the purpose, purposes of those fences is exactly one of those reasons so you
could push the snow up against it rather than just in infinitum." (Id.,
Claimants' expert, Helge Lien, opined that the fence struck by claimant was
built "on the skiable terrain," that it was "hazardous to skiers" and "does not
serve a useful purpose" (Lien Affidavit, par. 22, 27). Lien added that he has
"visited more than 100 ski areas" throughout the world, including "over 20 in
New York," and has "never seen similar walls in locations in any way similar to
the one at issue in this case" (id., par. 25). Interestingly, in
response to Lien's assertion about never seeing similar fences at other ski
centers, defendant submitted photographs depicting extensive use of similar
fences at Hunter Mountain in the Catskill Mountains of New York (see,
Elizabeth Brittain Affidavit and Exhibits annexed thereto; see, also,
Jasper E. Shealy Affidavit, par. 14). Claimants also submitted an affidavit
from a meteorologist, Kevin Williams, who claims to have an expertise in "the
placement of fences for the control of snow and particularly the control of wind
driven snow" (Williams Affidavit, par. 2). Williams opines, inter alia,
that the subject fence "would have a completely insignificant or no effect
holding snow in that area" (id., at par. 4).
Claimants' analysis of reported ski accidents at Whiteface revealed 70
accidents involving the various wood fences at Whiteface between December 1989
and March 1995 (Zorn Affidavit, par. 12). Defendant counters such statistics
by, inter alia, asserting that many of the most serious accidents at
Whiteface in the past decade (i.e., accidents resulting in death) might
have been minimized by a more extensive use of fences (Allott Reply Affidavit)
and further contending that, statistically, "[t]he percent of injuries at
Whiteface due to collision with fixed objects is in the low single digits, which
is comparable to national statistics" (Jasper E. Shealy Affidavit, par.
The 1995-1996 Annual Report of the Whiteface Ski Patrol, a post-accident
report, includes, among others, the following recommendations:
"A. Fence/Barrier Improvements
"From a safety point of view it is suggested that each fence on the mountain be
inventoried and either removed, repaired, or replaced. In many locations the
fences are hazardous and do not serve a useful function. In other spots fences
could be replaced with hedges which offer the advantages of being: inexpensive,
natural, safer and effective." (Claimants' Ex. U-3-1).
The author of the report, A. James Allott, offered the following regarding
"In the Annual Report of 1995, in the section on recommendations, I suggested
that it might be prudent to do an inventory of all fences. Some of the fences,
due to weather, collisions with maintenance equipment and other natural factors,
were in disrepair and could possibly present a danger. Not all fences were in
poor condition." (Allott Reply Affidavit, par. 7).
Statutory and Case Law
It has long been recognized that engaging in athletic activities implicates
inherent risks for participants (see, e.g., Murphy v Steeplechase Amusement
., 250 NY 479, 482-483). The duty of owners and operators of sports
venues is thus circumscribed and liability will not attach to injuries flowing
from the inherent risks of a sport when a consenting participant is aware of the
risks, has an appreciation of the nature of the risks and voluntarily assumes
the risks (Morgan v State of New York
, 90 NY2d, 471, 484; Lapa v Camps
Mogen Avraham, Heller, Sternberg
, 280 AD2d
While inherency is the primary
factor in the demarcation of duty's boundary, the skill, experience and
knowledge of the particular claimant plays an important role (Morgan v State
of New York, supra
, at 484-486; Benitez v New York City Bd. of Educ
73 NY2d 650, 657; Papa v Russo
, 279 AD2d 744). A participant does not,
however, assume the risks of reckless acts, intentional culpable conduct,
concealed conditions, or risks otherwise above the usual dangers of the sport
(Morgan v State of New York, supra
, at 485; Kane v North Colonie Cent.
., 273 AD2d 526; Hawley v Binghamton Mets Baseball Club
262 AD2d 729).
The downhill skiing genre of tort-sports deviates, but does not totally
depart, from the typical tort-sports analysis because the common law has been
supplemented by Legislative pronouncement regarding skiing (see
generally, General Obligations Law, art 18). The Safety in Skiing Code
(hereinafter referred to as "the Code") sets forth sundry specific duties of
both participants and operators (see, General Obligations Law §
§ 18-103, 18-104, 18-105, 18-106). The Legislature has explicitly
recognized that "downhill skiing * * * contains inherent risks including * * *
the risks of personal injury or death" (General Obligations Law § 18-101)
and that "skiing is a voluntary activity that may be hazardous regardless of all
feasible safety measures * * *" (General Obligations Law § 18-106).
Indeed, unlike most sports, where an initial determination involves discerning
the activities that constitute inherent risks of the particular sport, the
Legislature has set forth a non-exhaustive list of the inherent risks of skiing,
"variations in terrain or weather conditions; surface or subsurface snow, ice,
bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the
facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or
other natural objects or man-made objects that are incidental to the provision
or maintenance of a ski facility." (General Obligations Law §
The Code encroaches upon, but does not eliminate, the common-law analysis
(General Obligations Law § 18-107). "In other words, where a particular
hazardous condition is specifically addressed by the statute, the statute
controls; otherwise, the common law still applies" (Sytner v State of New
York, 223 AD2d 140, 143).
The confluence of Morgan (supra) and the Code creates a manifest
rubric for ski accidents. An accident attributable to one of the
statutorily-listed inherent risks does not fall within the realm of the
operator's duty unless the skier can prove that "the conditions caused by the
[operator's] negligence are ‘unique and created a dangerous condition over
and above the usual dangers that are inherent in the sport'" (Morgan v State
of New York, supra, at 485, quoting Owen v R.J.S. Safety
Equip., 79 NY2d 967, 970). Examples of conduct not considered inherent
include reckless acts, intentional culpable conduct and concealed conditions
(Morgan v State of New York, supra, at 485). Another avenue for a skier
to neutralize the statutory inherent risks analysis is to show that the
operator's alleged conduct constituted a separate violation of one of the
specific statutory duties of operators (see, General Obligations Law
§ § 18-103, 18-106; Sytner v State of New York, supra, at
143-144; see also, Nutbrown v Mount Cranmore, 140 NH 675, 683, 671
An accident allegedly attributable to a condition other than a
statutorily-listed inherent risk does not foreclose the inherent risk analysis
since the statutory list is expressly non-exhaustive. If the operator can
establish that the risk, although not listed in the Code, nevertheless is an
inherent risk of skiing, then the skier must establish a uniquely or unusually
dangerous condition to prevail (see, Morgan v State of New York
, at 485; see also, Nutbrown v Mount Cranmore, supra
, at 684
["the chief cause of [plaintiff's] injuries [was] an unenumerated, yet
quintessential risk of skiing: that a skier might lose control and ski off the
trail"]). If, however, the risk is determined not to be inherent to skiing, the
general common-law standard for those who own or control property applies
(Baker v Olympic Regional Dev. Auth
., Ct Cl, Feb. 2, 2001 [Claim No.
None, Motion No. M-62868], Bell, J., at
5-6; see, Basso v Miller
, 40 NY2d
233; see also
, Sytner v State of New York, supra
Claimants contend that culpable conduct of defendant is found in the presence
on Whiteface of "two hazards: an unmarked hidden bare spot in the middle of the
Mountain Run trail and a large, unyielding and unpadded wooden wall that
Whiteface had erected at the side of the trail" (Supplemental Brief in
Opposition to the State's Motion for Summary Judgment, at 4). The court will
address the alleged hazards seriatim. Initially, it merits noting that there is
a factual question regarding whether the bare spot caused claimant to fall.
Although claimant and eyewitness Bart Hayes relate that the bare spot was a
factor in the fall, eyewitness Timothy Ross testified that there was no bare
spot where claimant fell and that the fall resulted from claimant catching an
edge in the snow. An expert for defendant who reviewed the videotape opined
that claimant's "fall had nothing to do with a bare spot of any type located on
Mountain Run" (Jeffrey B. Byrne Affidavit, par. 5; see also, par. 6-10).
The factual dispute about a crucial aspect of the claim is sufficient to defeat
claimants' motion for summary judgment regarding the bare spot. For purposes of
addressing defendant's motion for summary judgment, the court assumes the bare
spot caused claimant's fall.
Bare spots are a statutory inherent risk of skiing (General Obligations Law
§ 18-101). While such factor would apparently end the analysis in one
adjoining jurisdiction with judgment in favor of defendant (see, McHerron v
Jiminy Peak, 422 Mass 678, 665 NE2d 26; cf., Rayeski v Gunstock
Area/Gunstock Area Commn., NH , 2001 NH Lexis 103
[June 14, 2001]), New York jurisprudence has taken a more moderate trail.
Claimants can bring the particular bare spot back into defendant's orbit of duty
by either establishing a pertinent statutory duty of the operator that applies
to the specific facts at hand or by establishing the existence of a uniquely or
unusually dangerous condition.
Claimants attempt to derive from subdivisions 6 and 13 of General Obligations
Law § 18-103 a statutory duty of operators to mark bare spots. Subdivision
6 of General Obligations Law § 18-103 imposes the following duties on
"To inspect each open slope or trail that is open to the public within the ski
area at least twice a day, and enter the results of such inspection in a log
which shall be available for examination by the commissioner of labor. The log
"a. the general surface conditions of such trail at the time of inspection
(powder, packed powder, frozen granular, icy patches or icy surface, bare
spots or other surface conditions);
"b. the time of inspection and the name of the inspector;
"c. the existence of any obstacles or hazards other than those which may arise
* * *
"(ii) weather variations including freezing and thawing; * * *." (Emphasis
Subdivision 13 of 18-103 provides, among other things, that operators have the
"To, within a reasonable amount of time after the inspection required by
subdivision six of this section, conspicuously mark * * * and to provide
sufficient warning to skiers by such marking or remove such obstacles or hazards
which are located within the boundaries of any ski slope or trail and were noted
pursuant to paragraph c of subdivision six of this section; * * *."
Claimants argue that bare spots are "obstacles or hazards" within the meaning of
paragraph c of subdivision 6 and, therefore, defendant had a duty to mark bare
spots pursuant to subdivision 13. Claimants' argument is unpersuasive. Since
bare spots are specifically listed in paragraph a, it would not be sound
statutory construction to implicitly read bare spots into paragraph c (see,
e.g., McKinney's Cons Laws of NY, Book 1, Statutes §§ 97, 98,
231). Moreover, even if bare spots were implicitly included in paragraph c,
clause ii exempts conditions arising from "weather variations including . . .
thawing," which is an obvious cause of bare spots.
Since bare spots are a statutory inherent risk of skiing and no provision of
the Code has been persuasively shown to impose a germane specific duty upon
defendant regarding the bare spot on Mountain Run, claimants must present
factual evidence that the subject bare spot constituted a uniquely or unusually
dangerous condition. Discerning what constitutes an unusually dangerous
condition necessarily implicates the skill, experience and knowledge of the
particular skier (see, e.g., Morgan v State of New York, supra, at
484-486). Conditions that might be unusually dangerous for a beginner could,
for an experienced skier, constitute the "new challenges and obstacles" that
satisfy an "inherent motivation behind participation in sports" to "improv[e]
one's sporting prowess" (id., at 487). The importance of the skill,
experience and knowledge of the particular skier in measuring the scope of duty
is apparent by comparing the holdings in Sytner v State of New York (223
AD2d 140, supra) and Roberts v Ski Roundtop (212 AD2d 768) –
both of which are relied upon by claimants – with the recent holding in
Ruepp v West Experience (272 AD2d 673).
The Sytner (supra) case involved a "solid beginner skier" who
was skiing on a novice trail. The skier encountered an area of ice, a bare spot
and snowmaking in progress that essentially made the trail impassable for a
beginner. One of the operator's patrol described the conditions as "dangerous"
for a beginner and as an area "that should be marked with traffic cones and
bamboo poles" (id., at 142). Moreover, the defendant in Sytner
failed to provide proper warning regarding the snowmaking as required by the
Code. The Appellate Division, noting that "[t]he experience and skill of the
skier * * * are relevant factors in determining the risks assumed" (id.,
at 144), upheld the trial court's determination of liability.
In Roberts (supra), the Appellate Division addressed a case
where an "inexperienced skier" alleged he did not see a dirt patch in the trail
that caused him to fall. The decision does not provide extensive factual
background, but the Court upheld a denial of summary judgment because an
employee of defendant stated that it was defendant's "practice to mark bare
spots with bright orange poles if the spot could not be seen by a skier coming
down the hill" (id., at 769).
The plaintiff in Ruepp (supra) was an intermediate skier who
participated in the sport on a regular basis. While night skiing at West
Mountain, he allegedly fell when "he was unable to see the one-foot depression
in the trail because a shadow was cast by the island of trees" (id., at
673). The Appellate Division reversed the lower court and granted summary
judgment dismissing the complaint, holding that "plaintiff, who regularly skied,
readily acknowledged that skiing is a sport that contains some risk and
voluntarily chose to ski at night, assumed the risk of encountering inevitable
shadows which might conceal depressions in the terrain" (id., at 674).
Although the specific condition that caused the plaintiff to fall was allegedly
difficult to see, the general conditions prevailing on the mountain were
manifest and such conditions served to warn skiers that visibility would be
restricted in some areas. A host of post-Morgan ski accident cases,
falling within the inherent risk rubric, reflect that "awareness of the risk"
measured by "the background of the skill and experience of the particular
plaintiff" (Maddox v City of New York, 66 NY2d 270, 278; see, Morgan v
State of New York, supra, at 486) often leads to dismissal of the case
(see, e.g., Bono v Hunter Mtn. Ski Bowl, 269 AD2d 482, lv denied
95 NY2d 754 [summary judgment granted in case where experienced
skier fell after striking ice on an expert trail and died from
resulting injuries]; Pitkewicz v Boy Scouts of Am. - Suffolk County
Council, 261 AD2d 462 [summary judgment granted where plaintiff had ample
opportunity to observe the terrain, including the sharp left turn on the
intermediate slope where he ultimately fell]; Bruno v Hunter Mtn. Ski
Bowl, 248 AD2d 660 [summary judgment granted where plaintiff, who was
allegedly momentarily blinded by snowmaking, was aware of the use of
snowmaking equipment on the trail]; Braun v Davos Resort, 241 AD2d
533 [summary judgment granted where the plaintiff, who slid on ice over a steep
drop-off, was aware that there were no fences on the particular expert
Here, claimant had vast ski experience and had skied for more than 20 years.
For several years, claimant worked in ski shops. He served as a volunteer ski
coach, participated in training seminars for coaches and skied at numerous
different ski areas in the northeastern United States and Canada.
Claimant acknowledges that, on March 29, he was informed that spring
conditions prevailed on Whiteface and that there were bare spots on the
mountain. Timothy Ross testified that the fact that spring conditions existed
was readily apparent from the moment he arrived at the mountain. Indeed, the
photographs submitted in the current motion are compelling proof of the
prevailing conditions. The photographs and videotape show that the trails on
Whiteface were dotted with numerous bare spots of various shapes and sizes
., Claimants' Ex. E-3, E-4, E-5, E-9, E-11,
A few of the bare spots were
ostensibly marked with lollipops, but most were not marked. Any reasonable
skier standing at the bottom of the lift up Little Whiteface would be cognizant
of the presence of bare spots on the trails of the mountain (see
Claimants' Ex. E-9, E-11).
Skiers in the USSCA clinic were afforded an opportunity to take free runs on
Whiteface before meeting for the first exercise. In availing himself of this
opportunity, claimant rode to the top of Little Whiteface. The chair lift to
the summit of Little Whiteface went directly above the entire length of Mountain
Run. Claimant rode the lift over Mountain Run a second time in preparation for
the USSCA exercise. The testimony of Patrick Doyle reveals that clinic
participants had to ski on a path of snow constructed by patrol personnel to
reach the summit of Mountain Run. Such fact revealed yet again that snow
coverage was not complete on the mountain.
Claimant had accepted the responsibility, as a member of USSCA, to be familiar
with the venue before beginning an activity (see
, Ex. B annexed to Byrne
Affidavit). Indeed, such responsibility was consistent with the skier's
responsibility code and pertinent statutory duties of skiers (see
General Obligations Law § 18-105; 12 NYCRR § 54.4; see also
Ex. VII annexed to Allott Affidavit). It cannot be reasonably concluded that
the venue did not include many bare spots. The videotape reveals that 39 clinic
participants descended Mountain Run before
A prime argument advanced by claimants regarding the contention that
conditions on Mountain Run were unusually dangerous is that a member of
defendant's patrol, Patrick Doyle, testified that "it was just probably not
safe" to conduct the USSCA clinic on Mountain Run on March 29. Such statement
appears, upon cursory review, to provide sufficient proof to prevent summary
judgment. Doyle's statement, however, was followed immediately by his
explanation of his opinion: "Well, basically because one of these, these clinics
involve high speed and if you are going to involve that you need all the
room you can get" (emphasis added). The uncontradicted proof before the court
reveals that the basic premise upon which Doyle's opinion about the safety of
Mountain Run rested was incorrect. USSCA representative Timothy Ross testified
that participants were directed to ski at a "comfortable level." Claimant, in
both his deposition testimony and affidavit, concurred with Ross that the
participants were instructed to ski at a comfortable level. Indeed, in his
deposition, claimant states:
"We were attempting to take slow short and Medium turns. We were working on
form." (Hyland EBT, at 247).
The clinic did not compel participants to ski at a "high speed." Since the
assumption that provided the rationale for Doyle's opinion was incorrect, his
opinion is insufficient to raise a factual issue as to whether the bare spots on
Mountain Run created an unusually dangerous
Claimants point to additional purported infirmities regarding the bare spot,
including that the bare spot was allegedly difficult to see and claimant was
"surprised" by the bare spot; that a bare spot on the other side of Mountain Run
was marked with lollipops, but the bare spot struck by claimant was not marked;
and that Whiteface's various patrol personnel gave explanations about marking
bare spots that were not completely consistent. Claimants assert that such
facts, when construed favorably to them, and read in light of Sytner v State
of New York
(223 AD2d 140, supra
) and Roberts v Ski Roundtop
(212 AD2d 768, supra
), lead to the conclusion that factual issues exist
that preclude summary judgment. A brief return to Sytner
, which are discussed in detail earlier in the opinion, reveals
significant distinctions. Both cases involved inexperienced skiers ostensibly
on beginner slopes and, significantly, there is no indication in either case
that the skiers were afforded an opportunity to view the purportedly defective
condition on the trail prior to their runs. Here, claimant was an experienced
and proficient skier, he was advised of the prevailing spring conditions with
bare spots, and he was afforded an opportunity to view both the general
conditions on the mountain and the specific conditions on Mountain
Under the prevailing circumstances
the court cannot conclude that the factual allegations of claimant are
sufficient to move the bare spot on Mountain Run from the realm of an inherent
risk included in electing to ski an expert trail on a world class mountain with
spring conditions into defendant's sphere of duty.
The court's determination that liability does not flow to defendant for the
bare spot on Mountain Run does not end the analysis. After falling, claimant
slid headfirst into a wooden fence at the edge of Mountain Run. Claimants'
medical expert, neurosurgeon Paul K. Maurer, opined that claimant's quadriplegia
was caused by his impact with the wooden fence (Maurer Affidavit, par.
Claimants argue that the fence was
located on skiable terrain. Claimants further contend that the fence served no
useful purpose and that it constituted a hazardous condition.
The location of the fence is of some moment in a summary judgment motion as
reflected by a trio of Appellate Division cases. In Nagawiecki v State of
New York (150 AD2d 147), the Appellate Division, Third Department, reversed
the lower court and granted summary judgment in a case where an experienced
skier fell on an intermediate slope and slid into a wooden pole located "about
10 to 15 feet from the bottom of the ski trail" (id., at 148). The court
concluded that "there is no duty imposed upon the State as landowner and
operator of a ski area to pad poles or fences, along the access lines to lifts
or facilities located away from slopes and trails at the base of the outrun and
beyond the limits of normal skiable terrain * * *" (id., at 149). In
two subsequent cases, the Third Department denied summary judgment to operators
of ski centers where skiers struck a post because each case involved evidence
that the post was on the ski trail (Basilone v Burch Hill
Operations, 199 AD2d 779; Fabris v Town of Thompson, 192 AD2d
Here, the subject fence was not located well off the trail as in
, and thus the holding of such case does not compel summary
judgment for defendant. The photographs submitted reveal, however, that
claimants' contention that the fence was on
Mountain Run is, at best,
strained. The photographs reflect that the fence was within the area
delineating the boundary for Mountain Run.
Behind the fence were trees, snowmaking pipes and stones (see, e.g
Blazer Affidavit, Ex. A-E7, A-E8, A-C12, A-C13, A-D11, A-D12). Thus, the
location of the fence, without further evidence, does not serve to defeat
defendant's motion as in Basilone
, cases in which there
was a genuine issue regarding whether a post was on
the trail. Further
analysis of the fence issue is therefore necessary.
A critical inquiry is whether the fence is a statutory inherent risk of
skiing. The Code includes within its list of inherent risks "man-made objects
that are incidental to the provision or maintenance of a ski facility" (General
Obligations Law § 18-101). There is no specific list of the artificial
objects at a ski center that should be considered "incidental to the provision
or maintenance" of the facility (cf
., Ohio Rev. Code Ann. § 4169.08
[A] [list of inherent risks includes, among many others, "utility poles,
, ski equipment, slalom poles, ropes, out-of-bounds barriers
and their supports . . ." (emphasis added)]). Illustrations of some artificial
objects that ostensibly are incidental to the provision and maintenance of a ski
facility can be extrapolated from the non-exhaustive list in General Obligations
Law § 18-103:
equipment, electrical outlets, timing equipment, stanchions, pipes, or storage
areas . . ." Wooden fences, however, are not specifically listed. The fact
that fences are not listed does not end the inherency inquiry since the
statutory list is not exhaustive. The inquiry, however, necessarily becomes
Defendant's witnesses set forth a variety of purported purposes for the
fences, including "maintaining the snow upon the trails, serve as a visual
definition of the edge of trail, mark the convergence or divergence of various
ski slopes, and protect the terrain, trees and equipment located there behind"
(Blazer Affidavit, par. 5).
existence of the fence on Mountain Run during the 1980 Winter Olympic Games
infers an acceptable use and purpose (cf., Morgan v State of New York,
, at 486). The inference, however, is neither compelling nor complete
upon the facts before the court since the fence may have been protected by
padding or nets during Olympic competition. Claimants counter defendant's
proclamations regarding the functions of the fence with their own experts, who
proclaim that the fence does not serve the purposes purported by defendant
, Affidavits of Kevin Williams and Helge Lien) and opining that the
fence does not serve any useful purpose (Lien Affidavit, par. 27). Moreover,
defendant's employee prepared a report reflecting that some
of the fences
on Whiteface "are hazardous and do not serve a useful function" (Claimants Ex.
U-3-1). The court cannot determine, within the context and confines of a motion
for summary judgment, whether the subject fence was "incidental to the provision
or maintenance" of Whiteface (and thus an inherent risk of skiing on Mountain
Run) or served no useful purpose (thus giving rise to a general common-law
Accordingly, summary judgment
regarding the issues implicated by the fence on Mountain Run is not
Express Assumption of the Risk
Finally, the court will briefly address the issue raised by defendant
regarding express assumption of the risk. A risk that is expressly assumed
cannot later form a foundation for liability (see, e.g., Arbegast v Board of
Educ. of S. New Berlin Cent. School, 65 NY2d 161). Defendant argues that
the written waiver and release prepared by USSCA and signed by claimant
constitutes an expressed assumption of the risk. Initially, the court notes
that defendant was not a party to the USSCA waiver and release (see, Long v
State of New York, 158 AD2d 778). Moreover, the surviving aspect of the
claim pertaining to the wooden fence is not specifically addressed in the waiver
and release (id.; see, Estes v New York State Saddle Horse Assn., 188
AD2d 857, 859-860). The court is therefore not persuaded that the USSCA waiver
and release constitutes a total defense to claimants' allegations of culpable
conduct regarding the relevant wooden fence on Whiteface.
Claimants have failed to raise factual issues upon which liability could be
reasonably premised regarding the bare spot on Mountain Run. Factual issues do
exist, however, regarding the wooden fence on Mountain Run. The motions of both
parties for summary judgment are thus
Plattsburgh, New York
HON. JOHN L. BELL
Judge of the Court of
The return date of the motions, after adjournment, was May 2, 2001. Oral
argument of the motions was heard on May 9, 2001 in Albany. The deadline for
final submission of post-argument papers was June 1, 2001.
The claim of Eleanor Hyland is derivative. Unless otherwise noted, all
references herein to "claimant" refer to Richard M. Hyland.
Whiteface is owned by the State and operated by the Olympic Regional Development
Authority (see generally
, Public Authorities Law title 28).
The medals received by claimant, who was wounded in combat, include the Combat
Infantry Badge, a Bronze Star, the Army Commendation Medal and the Good Conduct
Although claimant had previously skied at Whiteface, it had been approximately
15 years since he last skied there.
Less than half the trails on the mountain were open on the morning of March 29,
1995 (Ex. III annexed to Allott Affidavit).
Timothy Ross believed most participants had taken four to six runs; however, he
had no personal knowledge regarding claimant other than one run on the Excelsior
trail (Ross EBT, at 22).
In light of the substantial inconsistencies in the versions of events recited by
witnesses, it is not particularly surprising that the subsequently prepared
reports lacked uniformity (see, e.g
., Claimants' Ex. K-1-A through
Claimants contend the ski caught on a bare spot. Defendant alleges the ski
caught on snow. The angle of the videotape fails to provide a dispositive
An analysis of the post-Morgan
cases involving injuries in outdoor winter
sports is set forth in footnote 3 of the decision of Presiding Judge Susan
Phillips Read in Tilson v State of New York
(Ct Cl, Mar. 22, 2000 [Claim
No. 96213, Motion No. M-61180], Read, P.J.).
Recent decisions of the Court of Claims can be accessed from the Court of Claims
web site (http://nyscourtofclaims.state.ny.us).
While some of the photographs are from March 30, the testimony reflected that
the conditions were essentially the same on March 30 as on March 29.
In an interesting and rather remarkable statement, claimants' expert -- Helge
Lien -- contends that from viewing the videotape he is able to proclaim that the
bare spot on the right side of Mountain Run "surprised several skiers who skied
prior to Mr. Hyland" (Lien Affidavit, par. 47). Noticeably missing, however,
from the extensive disclosure and voluminous papers before the court, are any
actual statements from such skiers. The mere submission of an opinion from an
expert does not necessarily defeat a motion for summary judgment (see, e.g.,
Suarez v D & C Mgt. Assoc
, 726 NYS2d 763;
Martin v Vil. of Tupper Lake
, 723 NYS2d
The issue as to whether Doyle's statement should defeat defendant's motion would
be close even without Doyle's further testimony reflecting his incorrect
assumption. Significantly, the conditions about which Doyle was concerned were
readily apparent to claimant by a reasonable use of his senses. The bare spots
(statutorily inherent risks of skiing) were visible as he rode up the lift.
Claimant was also afforded time for free skiing runs prior to the clinic.
Claimant was an experienced skier. If he believed the readily observable bare
spots were too large, he could have opted not to ski down Mountain Run or could
have skied slower. Unlike a beginning skier, an experienced skier, such as
claimant, does not necessarily need another experienced skier making decisions
for him about readily observable conditions. Also, there is the fact that the
video shows 39 skiers of ostensibly similar ability as claimant descend Mountain
Run before claimant. While Doyle may have believed their decision was
imprudent, they were all experienced skiers who made a choice based upon readily
observable conditions. The spring conditions had been verbally communicated to
all and the bare spots could be observed from the lift; yet, all, including,
claimant, chose to proceed.
White v Deseelhorst
(879 P2d 1371[Ut. 1994]), cited in claimants'
supplemental brief, is distinguishable from the facts at bar. Although
involved an experienced skier on an expert trail, he struck an
artificial obstacle (i.e
., "cat tracks"), whereas here naturally
occurring bare spots are implicated (cf., Randall v Mammoth Mountain Ski
, 63 F Supp 2d 1251) and, more significantly, the plaintiff in
been afforded an opportunity to view the condition
prior to encountering it on the mountain.
Defendant contests such conclusion, asserting that claimant's injuries may have
occurred in his initial fall and before he slid into the fence.
Claimants' expert stated the fence was on "skiable terrain" (Lien Affidavit,
par. 22). Such characterization is potentially misleading because "skiable
terrain" can exist off designated trails. (Indeed, a thrill of
skiing/snowboarding for some individuals involves venturing off trails and
negotiating among trees [see, e.g
., U.S. News & World Report, Nov.
23, 1998, "Semiextreme Skiing: Dodging Trees Off the Beaten Trail," available
at: www.usnews.com/usnews/issue/981123/23thri.htm]). The photographic evidence
negates the necessity of relying on the characterization by either side
regarding the location of the fence.
Section 18-103(4) addresses the duty of operators to conspicuously mark certain
In Faselt v State of New York
(Ct Cl, Oct. 23, 1984 [Claim No. 65908],
Corbett, Jr., J.), Judge Corbett dismissed a claim, following a trial, where an
experienced skier died after striking a fence on a boundary of an expert trail
on Whiteface. Judge Corbett found that the evidence established that the fence,
located near a ravine, served a "dual purpose" as a "visual reference and
barrier to skiers as the boundary of the trail and as a more formidable physical
barrier to warn operators of the massive snow-making and grooming equipment * *
*. Whereas trees often form natural visual boundaries to ski trails, this fence
was intended to perform such purpose as no trees existed at the crest of the
ravine * * *" (id
., at 5-6). Having found the fence served a useful
purpose on the mountain, the court was not persuaded that expert testimony
indicating the fence could have been safer constituted a basis upon which to
premise liability under the prevailing facts and circumstances (id
Even if a factual determination was made that the fence served no useful purpose
the analysis would not necessarily end in claimants' favor. The photographs
reflect that behind the fence were trees, pipes and stones. Claimants would
have to show that the fence increased the risk of injury over the items located
directly behind the fence. For purposes of this motion, claimants satisfied
such requirement with the affidavit of Paul K. Maurer, M.D., who opines (par.
7): "Based on my review of the videotape and several photographs of the accident
scene, I do not see anything behind that wall that could have resulted in
quadriplegia had Mr. Hyland hit it instead of the wall."