On February 14, 1998, claimant Jean A.
rented cross-country ski equipment and
purchased a ticket to ski at the Olympic Sports Complex at Mt. Van Hoevenberg in
the Town of North Elba, Essex County. After she had finished skiing and removed
her skis, she walked toward the lodge at the complex to return the rented
equipment. Unfortunately, she slipped and fell, sustaining various injuries.
She subsequently commenced a claim against defendants alleging assorted
negligent conduct. A bifurcated trial ensued.
Claimant testified that in February 1998 she, together with her husband and
son, traveled with a tour group from her home in New Jersey to Lake Placid for a
winter vacation. On February 14, she decided to go to Mt. Van Hoevenberg in
order to "try"
cross-country skiing. Although
she had previously participated in downhill skiing on many occasions, February
14 was the first time she engaged in cross-country skiing. Claimant entered the
lodge at the complex, where she purchased a ski ticket, paid for a lesson and
rented equipment. She put the rented ski boots on while still in the lodge and
then carried the rented skis and poles outside. Claimant walked to the area
where the lesson started. She recalled that she learned how to put on the skis,
the basics of cross-country skiing and then she engaged in some skiing.
Eventually, claimant returned to the area near the lodge in order to return the
Claimant stated that it was a bright, sunny day. She took off her skis near a
picnic table and began walking toward the lodge with the skis and poles in her
hands. She was still wearing the rented ski boots. Before she reached the
ramp, which provided access to one of the entrances to the lodge, claimant
slipped and fell. The approximate place where claimant fell was marked with a
blue "X" on claimants' exhibit 5. Review of the photograph and the testimony at
trial revealed that she fell within 10 feet of the entrance ramp. Claimant
testified that she fell on a "hard surface" and that there was "a ridge" in the
area where she fell.
On cross-examination, claimant confirmed that, as she proceeded to the place
her lesson was to be conducted, she walked over the general area where she later
fell. While going to the lesson, she walked in the rented ski boots over a
surface covered with hard-packed snow. Claimant acknowledged that she had
previously walked in downhill ski boots on many occasions without incident.
Claimant estimated that, after skiing on February 14, she took her skis off 20
to 30 feet from the lodge. She stated that she was not directed to take off the
skis in any particular area. Before falling, she observed the general area
where she fell and it appeared as an area of "hard" and "compacted" snow. Many
people walked over the snow in the subject area while entering and exiting the
lodge. She recalled that she was not rushing, and she described her walk into
the area of hard-packed snow as slow and careful. She reiterated that there was
a ridge created from a build up of snow and ice.
Claimants' expert, Helge Lien, testified that he is an engineer licensed in
Pennsylvania and that he has been involved in both the nordic and alpine skiing
industries for many years. Mr. Lien had reviewed the transcript of the
examination before trial of defendants' employee, reviewed photographs of the
scene, spoken to claimant on the phone and, four days before the trial, visited
the site. He opined that because a substantial percentage of visitors to the
Olympic Sports Complex walked in the area where claimant fell, the area was thus
"defined by use as a walkway." He continued by asserting that, since it was a
walkway, the area should have had snow and ice removed and been treated with
sand or salt. He stated that because a large number of people walked over the
snow in the area the snow became hard-packed and created a slippery
The final witness called at trial was Gregory Stratford, who has been the
Operations Manager at the Olympic Sports Complex since 1986. Mr. Stratford
testified that the ramp depicted in claimants' exhibit 5 led to an entrance to
the lodge and was used by about 85 to 95 percent of the visitors to the site.
He stated that skiers generally exited the building, moved a short distance away
from it and then put on their skis. He related that the immediately adjacent
"stadium" area was groomed and considered a starting and stopping place for
skiers (see, claimants' exhibit 7). Mr. Stratford recalled that novice
skiers, while attempting to ski, frequently fell in front of the lodge and in
the general vicinity where claimant fell. He was unaware, however, of any prior
instances of patrons falling while walking in the relevant area. He further
testified that he had not received any prior complaints from people about having
to walk in the area where claimant fell.
Mr. Stratford stated that the area where claimant fell was groomed and
considered a skiable area. Because the relevant area was used by skiers,
neither sand nor salt was ever applied to the surface. He described the area in
front of the lodge as "nearly level," with perhaps a "slight grade."
While the State is not an insurer of its property, it must nevertheless
maintain its property in a reasonably safe condition under the prevailing
circumstances (see, e.g., Clairmont v State of New York
, 277 AD2d 767,
96 NY2d 704; Matter of Boettcher v State of New York
256 AD2d 882). Analysis of a slip and fall in the winter includes as part of
the totality of the prevailing circumstances considered the difficulties often
caused by winter weather (see, e.g., Smith v State of New York
, 260 AD2d
819; Marcellus v Littauer Hosp. Assn
., 145 AD2d 680). There is no duty
to warn of a condition that is open and obvious and that can be readily observed
by a reasonable use of the senses (see, e.g., Weigand v United Traction
., 221 NY 39, 42; Tarricone v State of New York
, 175 AD2d 308, 309,
78 NY2d 862).
Initially, the court finds that the opinion offered by claimants' expert, Mr.
Lien, was unpersuasive. The weight, if any, accorded expert testimony is a
matter for the trier of fact (Felt v Olson, 51 NY2d 977; 1A NY PJI 1:90).
In the Court of Claims, the court acts as trier of fact and Mr. Lien's opinion
that the area where claimant fell should have been cleared and salted like a
walkway was unconvincing when weighed against the other credible evidence
presented at trial.
The evidence established that the area where claimant fell had been groomed
and treated as a skiable area at the Olympic Sports Complex for many years.
There were no known prior incidents of individuals falling while walking in the
area and Mr. Stratford had not received complaints about the prevailing
conditions. The nature of cross-country skiing reasonably results in an area
near the lodge or near the area where patrons put on their skis that is used
both for skiing and some walking. Simply stated, the skier walks onto a skiable
area and then puts on his or her skis. Such were the conditions at Mt. Van
Hoevenberg and the conditions were open and obvious. Indeed, claimant had
walked over the area of hard-packed snow earlier in the day. The test for
premises liability is one of reasonableness under the prevailing circumstances
and the burden of proof rests upon claimants. The conditions at Mt. Van
Hoevenberg, as described by the credible evidence, were reasonable for a
cross-country ski complex.
Defendant's motion to dismiss, upon which the court reserved decision at
trial, is now granted. All other motions upon which the court reserved are
The claim is dismissed and the Chief Clerk of the Court of Claims is directed