New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK and THE NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, #2001-007-581, Claim No. 101948


Synopsis


Claimant slipped and fell while returning rented cross-country ski equipment to the lodge at the Olympic Sports Complex at Mr. Van Hoevenberg near Lake Placid. Her negligence claim was dismissed

Case Information

UID:
2001-007-581
Claimant(s):
JEAN A. JOHNSON and ROBERT S. JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and THE NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101948
Motion number(s):

Cross-motion number(s):

Judge:
JOHN L. BELL
Claimant's attorney:
POISSANT, NICHOLS & GRUE (STEPHEN A. VANIER, ESQ., of Counsel)
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL (MICHAEL C. RIZZO, ESQ., ASSISTANT ATTORNEY GENERAL, of Counsel)
Third-party defendant's attorney:

Signature date:
December 19, 2001
City:
Plattsburgh
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision



On February 14, 1998, claimant Jean A. Johnson[1] 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"[2] 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 rented equipment.

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 condition.

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, lv denied 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 Co., 221 NY 39, 42; Tarricone v State of New York, 175 AD2d 308, 309, lv denied 78 NY2d 862).[3]

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 denied.

The claim is dismissed and the Chief Clerk of the Court of Claims is directed to enter

judgment accordingly.


December 19, 2001
Plattsburgh, New York

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




[1] The claim of Robert S. Johnson is derivative. All references herein to claimant are to Jean A. Johnson, unless otherwise noted.
[2] All quotes are from the court's trial notes, unless otherwise indicated.
[3]Moreover, when an injury is occasioned by participation in an athletic activity, assumption of the risk presents a formidable barrier to liability (see, e.g., Morgan v State of New York, 90 NY2d 471; Simoneau v State of New York, 248 AD2d 865).