New York State Court of Claims

New York State Court of Claims

SHARROW v. NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, #2001-015-203, Claim No. 102449, Motion Nos. M-63839, CM-63977


Synopsis


Court denied claimant's motion for summary judgment and State's cross-motion for summary judgment on the grounds that issues of fact required trial in case involving skiing accident at Gore Mountain which occurred on trail whose difficulty was increased from intermediate (more difficult) to most difficult during ski season. Claimant alleged lack of notice of change..

Case Information

UID:
2001-015-203
Claimant(s):
SHEILA SHARROW and CHARLES SHARROW
Claimant short name:
SHARROW
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102449
Motion number(s):
M-63839
Cross-motion number(s):
CM-63977
Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Poklemba, Hobbs & Ulasewicz, LLCBy: Gary C. Hobbs, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 27, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimants' motion for summary judgment pursuant to CPLR 3212 is denied as is the defendant's cross-motion for summary judgment seeking dismissal of the claim upon a determination of the defendant's non-liability as a matter of law. The claim seeks to recover money damages for personal injuries sustained by Sheila Sharrow[1] on February 13, 2000 in a skiing accident at Gore Mountain, a ski resort operated by the New York State Olympic Regional Development Authority at North Creek, New York.

The claim alleges that the claimant suffered severe personal injuries when, while skiing Jug Handle trail at Gore Mountain, she unexpectedly came upon a man-made "tabletop" ski jump element which had recently been constructed and concerning which no notice or warning had been provided. The claimant was unable to stop, skied over the element and was injured upon impacting the ground. On the motion the claimant alleges that she and her husband had skied Jug Handle trail on February 6, 2000 and that the tabletop jump was not present at that time. The couple returned to Gore Mountain on February 13, 2000 and determined which trails they would ski by examining the 1999-2000 Gore Mountain ski brochure which contains a schematic showing the location and degree of difficulty of each of the mountain's ski trails (Exhibit G). The brochure designated Jug Handle as a "more difficult" trail[2], a fact acknowledged by the defendant in its response to the claimants' notice to admit (Exhibit E).

Jug Handle is a short, semi-circular ski trail which one enters from the ski trail known as Showcase. Both Jug Handle and Showcase are rated "more difficult" trails in the 1999-2000 Gore Mountain ski brochure. Jug Handle is wooded on both sides and proceeds in a continuous right hand curve until it straightens as one exits the trail and re-enters Showcase. Essentially, the claimant contends that Jug Handle did not contain the tabletop element, which she alleges caused her injuries, on her previous trip to Gore Mountain the week prior to February 13, 2000; the element was constructed at some time between February 6 and February 13, 2000; that the defendant failed to provide notice that the element was present and that the degree of difficulty of Jug Handle had been upgraded from "more difficult" to "most difficult" and that as an intermediate skier she would not have skied Jug Handle had such notice been provided.

Specifically, claimant alleges that notice of the presence of the element and revised level of difficulty should have been provided, and was not, in the 1999-2000 Gore Mountain ski brochure; at the central information board maintained at the ski center as required by General Obligations Law § 18-103 (5) (d) and on signage required to be posted at each lift line pursuant to General Obligations Law § 18-103 (11). Additionally, claimant alleges that no sign was posted at the entrance to Jug Handle indicating the presence of the tabletop element and denoting the trail as "most difficult" or, alternatively, that if a sign was present it was inadequate. Finally, claimant alleges that the defendant failed to conspicuously mark the presence of the element on the trail as required by General Obligations Law §18-103 (4).

The defendant opposed the claimants' motion and cross-moved for summary judgment on the grounds that claimant Sheila Sharrow assumed the risk of injury by engaging in the sport of downhill skiing and that she violated one or more statutory duties imposed upon skiers by General Obligations Law § 18-105 in failing to remain in constant control of her speed and course at all times while skiing to avoid contact with plainly visible or clearly marked obstacles and by failing to familiarize herself with posted information (i.e., a written trail condition report) before skiing any slope or trail.

The Court's role on a motion for summary judgment is issue finding not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Lui v Park Ridge at Terryville Assn., 196 AD2d 579). In order to grant summary judgment, a Court must find that there are no material triable issues of fact. "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). Once the movant establishes his or her prima facie entitlement to summary judgment, the burden shifts to the opposing party to come forward with admissible proof establishing the existence of a material issue of fact requiring a trial (Leek v McGlone, 162 AD2d 504). Should the moving party fail to make a prima facie showing of its entitlement to judgment as a matter of law, the motion will be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320).

Although available in the widest variety of actions, including personal injury suits (Andre v Pomeroy, 35 NY2d 361; CPLR 3212 (a)), the Courts are reluctant to grant summary judgment in negligence actions "because even when the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law" (Francais v Cusa Brothers Enterprises., 53 AD2d 24, 26). The exception to the general rule related above is a negligence action premised upon a statutory violation.

Violation of a statute which imposes a specific duty may establish negligence as a matter of law (Elliott v City of New York, 95 NY2d 730). A statutory violation may result in absolute liability where a plaintiff establishes a violation and the statute is one which is "designed to protect a particular class of persons who are incapable of protecting themselves against a defined hazard" (Dean v Baumann, 39 AD2d 138, 139). More common is a finding that violation of a statute which defines the degree of care owed to the general public under specific circumstances "does not create a new liability but defines a duty enforceable in a common-law negligence action" (1 A NY PJI 2:25 at 232 [3d ed 2001]; see also, Duncan v Kelly, 249 AD2d 802, 803 [question of fact regarding defendant's alleged violation of General Obligations Law § 18-105 (4) and (9)] ). Violation of such a statute, if proved, constitutes negligence per se and requires a finding that the offending party was negligent (Holleman v Miner, 267 AD2d 867). A finding of negligence per se does not equate to a determination of liability per se, however, as an injured party must still establish that he or she is within the class sought to be protected by the statute and that "the statutory violation was the proximate cause of the occurrence" (Dance v Town of Southampton, 95 AD2d 442, 445-446). "Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was the cause of the event which produced the harm sustained" (Sheehan v City of New York, 40 NY2d 496, 501; 1A Warren's Negligence, Proximate Cause § 5.12(7)).

General Obligations Law Article 18 is entitled "Safety in Skiing Code" and sets forth the rights and duties of both skiers and ski area operators. Section 18-103 imposes certain specific duties upon ski area operators and, insofar as relevant herein, provides the following:
4. To conspicuously mark with such implements as may be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law, the location of such man-made obstructions as, but not limited to, snow-making equipment, electrical outlets, timing equipment, stanchions, pipes, or storage areas that are within the borders of the designated slope or trail, when the top of such obstruction is less than six feet above snow level.
* * *
5. To maintain in a central location at the ski area an information board or boards showing at a minimum the following:

(d) the relative degree of difficulty of each slope or trail (at a minimum easier, more difficult, most difficult); and
* * *
11. To post in a conspicuous location at each lift line a sign, which shall indicate the degree of difficulty of trails served by that lift with signs as shall be specified by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.

With regard to the requirement that man-made objects within slopes or trails be conspicuously marked as provided in § 18-103(4), the Commissioner of Labor has directed that any such features or obstructions be marked by crossed poles or a pole topped with a marker or markers (12 NYCRR § 54.4 (d)). Claimant contends that no markers were in place on the date of the accident. This allegation is, however, contradicted in the affidavit of Mark Anderson, Director of the Gore Mountain Ski Patrol. Mr. Anderson contends that he responded to the claimant's accident on February 13, 2000 and that he observed an eight foot bamboo pole topped with an eight inch marker known as a monopod in place alongside the tabletop element.

Even assuming, without deciding, that the tabletop was the sort of man-made obstruction to which § 18-103 (4) is applicable, the differing accounts regarding the presence or absence of the marker required by the statute raises a triable issue of fact precluding summary disposition (Kosan v County of Westchester, 162 AD2d 592).

General Obligations Law § 18-103 (5)(d) requires a ski area operator to maintain a central information board showing the relative degree of difficulty of each slope or trail. Upon the proof presented the claimant has established that on February 13, 2000 Gore Mountain maintained such an information board and that on such date the board listed Jug Handle as a "more difficult" trail (Exhibit E, claimants' notice to admit and defendant's responses thereto). While the failure to accurately mark the correct degree of difficulty may arguably establish the breach of a statutory duty of care, proximate cause must still be established to warrant a grant of summary judgment. In this regard the claimant and her husband state in their respective affidavits that they consulted the 1999-2000 Gore Mountain brochure in deciding which trails they would ski. There is no allegation or proof that they actually viewed the central information board or that the misidentification of Jug Handle as a "more difficult" trail on the board played any role in producing either the event or the injuries which form the basis of their claim and the instant motion. Absent proof that the claimant relied upon the incorrect information contained on the board in determining that Jug Handle was an intermediate trail and was therefore appropriate for her level of experience, and that based upon such information she was caused to misapprehend the potential danger, the claimants' motion for summary judgment based upon a violation of General Obligations Law § 18–103 (5) (d) must be denied (see Ventola v New York State Thruway Auth., 142 AD2d 674; Economou v State of New York, 249 AD2d 439). Upon the proof presented on the motion claimant has failed to establish that the failure to properly label Jug Handle on the central information board as required by the statute played any causative role in the events producing the accident.

As to the alleged failure of the defendant to comply with the direction contained in § 18-103 (11) that a sign be posted at each lift line indicating the degree of difficulty of trails served by the lift the defendant has raised a material question of fact as to the presence or absence of such a sign at the Adirondack Express ski lift which services both the Showcase and Jug Handle trails. Ski Patrol Director Mark Anderson states in his affidavit that the signs required by § 18-103 (11) were in place on February 13, 2000 and the photograph submitted as Exhibit 9 shows a sign which indicates that the Adirondack Express lift line serves "more difficult" and "most difficult" trails.

Finally, questions of fact requiring a trial exist as to the time when the tabletop element was actually constructed, the existence and adequacy of signage at the entrance to Jug Handle indicating that the trail had been re-designated as a "most difficult" slope and contained a ski jump element, and the extent to which the defendant may have breached any non-statutory duty to warn. Claimants' motion for summary judgment is, therefore, denied.

As noted previously, the defendant asserts in opposition to the motion and in support of the cross-motion that the claimant assumed the risks arising out of her participation in the sport of downhill skiing, that claimant violated General Obligations Law §18-105 by failing to remain in constant control of her speed and course to avoid contact with plainly visible and clearly marked obstacles and by failing to familiarize herself with posted ski information, i.e., a trail condition report, before skiing any slope or trail.

A review of the defendant's verified answer (Exhibit B) reveals that the defendant has not pleaded assumption of risk as a defense to this claim as required by CPLR § 1412. Absent a motion pursuant to CPLR 3025 (b) for leave to amend the pleading the affirmative defense is not properly before the Court. Even had the defense been properly raised it would not support dismissal of this claim since "[i]t is well settled that skiers are deemed to have consented [only] to the inherent risks that are known, apparent or reasonably foreseeable" (Sytner v State of New York, 223 AD2d 140, 144; see also Dicruttalo v Blaise Enters., 211 AD2d 858, 859). The Third Department in Ruepp v West Experience, 272 AD2d 673, 674 recently held that:
An individual who participates in the activity of downhill skiing assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the skiing terrain (see, General Obligations Law § 18-101; see also, Jordan v Maple Ski Ridge, 229 AD2d 756, 757; Fabris v Town of Thompson, 192 AD2d 1045, 1046). A hazard which has been unreasonably increased or concealed, however, is not within the range of risks that are assumed (see, Benitez v New York City Bd. of Educ., 73 NY2d 650, 658; Rios v Town of Colonie, 256 AD2d 900).
A ski jump element added by the ski area operator which admittedly raised the trail's degree of difficulty, was located on a curve making it difficult if not impossible to see until the skier actually encountered it and concerning which adequate notice was not provided certainly would not be within the range of risks that are assumed by an intermediate skier skiing what was previously designated as an intermediate trail.

As the party opposing the cross-motion for summary judgment the Court must view the evidence in the light most favorable to the claimant and provide (her) the benefit of every reasonable inference (Boston v Dunham, 274 AD2d 708). In this matter the record contains contradictory material factual assertions, particularly with regard to the presence of a sign at the entrance to Jug Handle indicating that the trail was designated as "most difficult" and the presence or absence of a marker at the ski jump itself. Summary judgment is "unwarranted where the case is replete with conflicting evidence and varying inferences which could be drawn therefrom. Material issues of fact include whether the decedent was skiing out of control and beyond his ability; whether defendants created additional risks that are not generally associated with the sport of skiing [and] whether defendants negligently permitted the relevant ski trail to become hazardous to skiers. . . . While decedent may have assumed a risk involved in partaking in the sport of skiing, and while General Obligations Law article 18 sets forth numerous risks inherent in the sport of skiing, it cannot be said, as a matter of law, that decedent assumed all the risks under the instant circumstances" (Rigano v Coram Bus Serv., 226 AD2d 274, 275). Such are the circumstances in this case and, accordingly, such is the holding of this Court.

Sheila Sharrow's accident was unwitnessed and the defendant's attempt to prove that at the time of her accident she was engaged in conduct violative of General Obligations Law § 18-105 (4) and 12 NYCRR § 54.4 by failing to control her speed and course is unavailing. Claimant testified that she was skiing at a moderate rate at the time she entered Jug Handle and no proof in admissible form was offered by the defendant to contradict that assertion. The affidavit of Ski Patrol Director Mark Anderson, who was not qualified as an expert witness, contains speculation and opinion which is insufficient to make a prima facie showing that claimant failed to control her speed or course at the time of her accident.

Finally, although General Obligations Law § 18-105(5) and 12 NYCRR § 54.4(b) (5) require skiers to familiarize themselves with posted information before skiing any slope or trail, including surface conditions,[3] claimant's failure to do so in this instance does not establish the defendant's freedom from liability as a matter of law. This is so because the trail condition reports for February 13, 2000 attached to the responsive affidavit of claimant's attorney (Exhibit B) contain no information relative to the degree of difficulty or change in the degree of difficulty of any trail (including Jug Handle) and claimant's review of any such report would not have provided claimant with notice of the change in difficulty nor affected her decision to ski or not to ski Jug Handle on February 13, 2000. The defendant has not met its initial burden on its summary judgment motion and defendant's cross-motion is, accordingly, denied.

Trial on the issue of liability will proceed as scheduled beginning on December 5, 2001.


November 27, 2001
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
1. Notice of motion dated July 12, 2001;
2. Affidavit of Gary C. Hobbs sworn to July 19, 2001 with exhibits;
  1. Affidavit of Sheila Sharrow sworn to July 23, 2001 with exhibit;
  2. Notice of Cross-motion dated August 24, 2001;
  3. Affirmation of Frederick H. McGown, III dated August 23, 2001 with exhibit;
  4. Affidavit of Mark Anderson sworn to August 24, 2001 with exhibits;
  5. Affidavit of Robert Heunemann sworn to August 24, 2001 with exhibit;
  6. Affidavit of Michael J. Pratt sworn to August 24, 2001 with exhibit;
  7. Affidavit of Emily A. Stanton sworn to August 24, 2001 with exhibits;
  8. Affidavit of Thomas R. Rausch sworn to August 24, 2001 with exhibits;
  9. Affidavit of John Howard Carbone sworn to August 24, 2001;
  10. Affidavit of Michael D. McClure sworn to August 24, 2001;
  11. Affidavit of Donald Townley sworn to August 24, 2001;
  12. Affidavit of Gary C. Hobbs sworn to September 10, 2001 with exhibits;
  1. Affidavit of Charles Sharrow sworn to September 13, 2001 with exhibit.

[1]The claim of Charles Sharrow is derivative only.
[2]Gore Mountain designates its trails as easier, more difficult and most difficult in compliance with General Obligations Law § 18-103 and 12 NYCRR § 54.5 and also uses color coded symbols indicating the varying degrees of difficulty on its signs, maps, brochures and advertisements. Easier trails are designated by a green circle, more difficult by a blue square and most difficult by a black diamond. Expert trails are marked with two black diamonds.
[3]See General Obligations Law § 18-103 (5) (e).