New York State Court of Claims

New York State Court of Claims

HYLAND v. THE STATE OF NEW YORK, #2001-007-118, Claim No. 95790, Motion Nos. M-62933, CM-63267


Synopsis


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 motions denied.

Case Information

UID:
2001-007-118
Claimant(s):
RICHARD M. HYLAND and ELEANOR HYLAND
Claimant short name:
HYLAND
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95790
Motion number(s):
M-62933
Cross-motion number(s):
CM-63267
Judge:
JOHN L. BELL
Claimant's attorney:
FARACI & LANGE, LLP (BRIAN M. ZORN, ESQ. and MATTHEW F. BELANGER, ESQ., of Counsel)
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL (FREDERICK H. McGOWN, III, ESQ., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
August 8, 2001
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


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.[1] The following 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. Hyland,[2] sustained severe permanent injuries while skiing at Whiteface Mountain Ski Center (hereinafter Whiteface)[3] 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.
I. FACTUAL BACKGROUND
  1. 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 service.[4] 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 follows:
"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 part:
"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, provided:
"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).
  1. 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.[5] 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 (see, e.g., 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 open[6] as having "spring conditions" (Ex. III annexed to Allott Affidavit), a term defined by the Ski Areas of New York as follows:
"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 as:
"[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,[7] claimant 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, Hyland EBT, at 237-238). Claimant thus necessarily again rode the chair lift that transported passengers over the length of the Mountain Run trail (see, e.g., 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.
  1. 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 Run trail?


"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 Run trail?


"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 20).


* * *


"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 trail?


"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 follows:
"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?


"A Yes.


"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).
  1. 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 level.
"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.


"Q Okay.


"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].)
  1. Bare Spots
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 11-12).

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 down into.


"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?


"A No.


"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 with lollipops?


"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).
  1. 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 participants:
"Q As you were waiting in your assembly point, were you able to observe the individual skiers make their runs?


"A Yes.


"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 your descent?


"A No.


"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 263-264).

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).[8]

The videotape reflects that claimant's right ski, which was the uphill ski, caught on something[9] 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.
  1. 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, par. 20).

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 litigation:
"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 center."


* * *


"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 your own.


"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 trails separated.


"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 junction."


* * *


"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 there?
"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., at 77).

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. 13).

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 it:
"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).
II. LEGAL ANALYSIS
  1. 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 Co., 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 858).[10] 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. School Dist., 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, which include:
"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 § 18-101).

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 A2d 548).

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, supra, 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;[11] see, Basso v Miller, 40 NY2d 233; see also, Sytner v State of New York, supra).
  1. Bare Spots
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 operators:
"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 shall note:


"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 from:"


* * *


"(ii) weather variations including freezing and thawing; * * *." (Emphasis added).

Subdivision 13 of 18-103 provides, among other things, that operators have the following duty:
"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 trail]).

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 (see, e.g., Claimants' Ex. E-3, E-4, E-5, E-9, E-11, E-11-A).[12] 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 claimant.[13]

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 condition.[14]

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 and Roberts, 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 Run.[15] 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.
  1. Wooden Fences
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. 4-6).[16] 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 1045).

Here, the subject fence was not located well off the trail as in Nagawiecki, 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.[17] 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 and Fabris, 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, fences, posts, 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[4]:[18] "snow-making 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 factually intensive.

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).[19] Moreover, the 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, supra, 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 (see, 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 analysis).[20] Accordingly, summary judgment regarding the issues implicated by the fence on Mountain Run is not appropriate.
  1. 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.
Summary
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


denied.

August 8, 2001
Plattsburgh, New York

HON. JOHN L. BELL
Judge of the Court of Claims




[1]
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.
[2]
The claim of Eleanor Hyland is derivative. Unless otherwise noted, all references herein to "claimant" refer to Richard M. Hyland.
[3]
Whiteface is owned by the State and operated by the Olympic Regional Development Authority (see generally, Public Authorities Law title 28).
[4]
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 Medal.
[5]
Although claimant had previously skied at Whiteface, it had been approximately 15 years since he last skied there.
[6]
Less than half the trails on the mountain were open on the morning of March 29, 1995 (Ex. III annexed to Allott Affidavit).
[7]
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).
[8]
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 K-1-H).
[9]
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 answer.
[10]
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.).
[11]
Recent decisions of the Court of Claims can be accessed from the Court of Claims web site (http://nyscourtofclaims.state.ny.us).
[12]
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.
[13]
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., AD2d , 726 NYS2d 763; Martin v Vil. of Tupper Lake, AD2d , 723 NYS2d 715).
[14]
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.
[15]
White v Deseelhorst (879 P2d 1371[Ut. 1994]), cited in claimants' supplemental brief, is distinguishable from the facts at bar. Although White 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 Area, 63 F Supp 2d 1251) and, more significantly, the plaintiff in White had not been afforded an opportunity to view the condition prior to encountering it on the mountain.
[16]
Defendant contests such conclusion, asserting that claimant's injuries may have occurred in his initial fall and before he slid into the fence.
[17]
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.
[18]
Section 18-103(4) addresses the duty of operators to conspicuously mark certain artificial objects.
[19]
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., at 8-9).
[20]
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."