New York State Court of Claims

New York State Court of Claims



Upon remittal to this Court by the Appellate Division, Third Department the Court reviewed the trial testimony and concluded that claimant failed to establish what if any of plaintiff's damages were proximately caused by the defendant's negligent failure to summon emergency medical transportation from Gore Mountain to Glens Falls Hospital. Absent such proof no recovery could be had. Court dismissed claim on trial record

Case Information

MYRON G. BUTLER and PATRICIA A. BUTLER Patricia Butler's cause of action is derivative only. References to claimant in the singular refer to Myron G. Butler unless otherwise noted. This Court has jurisdiction over the named defendant pursuant to § 2622(4) of the Public Authorities Law (see, L. 1994, ch 169 § 93). The defendant owns and operates Gore Mountain Ski Center in North Creek, New York where claimant's accident occurred.
Claimant short name:
Footnote (claimant name) :
Patricia Butler's cause of action is derivative only. References to claimant in the singular refer to Myron G. Butler unless otherwise noted.
Footnote (defendant name) :
This Court has jurisdiction over the named defendant pursuant to § 2622(4) of the Public Authorities Law (see, L. 1994, ch 169 § 93). The defendant owns and operates Gore Mountain Ski Center in North Creek, New York where claimant's accident occurred.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
DeGraff, Foy, Holt-Harris & Kunz, LLPBy: Scott C. Paton, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 15, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

This trial decision follows a remittal to this Court by the Appellate Division, Third Department (
Butler v New York State Olympic Regional Dev. Auth., 292 AD2d 748) upon a reversal of this Court's judgment dismissing the claim upon a trial motion for claimants' failure to prove a prima facie case.
The claim seeks to recover money damages for personal injuries allegedly resulting from post-accident first aid rendered to Myron G. Butler by a Ski Patroller II and a registered nurse at the Gore Mountain Ski Center (Gore Mtn.) and for injuries due to the failure of the same New York State Olympic Regional Development Authority (ORDA) employees to summon emergency medical transportation for the claimant from Gore Mtn. to the nearest definitive medical care facility.

On Sunday, March 8, 1998 claimants Myron and Patricia Butler were enjoying a day of downhill skiing at Gore Mountain Ski Center. At approximately 12:15 p.m. on that afternoon the claimants were skiing on trail 2-B approximately 100-150 yards above the base first aid station when Myron Butler became airborne, traveling a distance of 35 feet and landing on his left shoulder and head. Claimant Patricia Butler, who had lost sight of her husband just prior to his fall, discovered him lying prone on the hill and alerted other skiers to summon assistance. William Boswell, a paid employee of the defendant with the title of Ski Patroller II, arrived on the scene at approximately 12:20 p.m. and began to assess Mr. Butler's physical condition. Claimant was alert and did not report any loss of consciousness. He advised Boswell that he was experiencing pain in the left shoulder and arm and some tingling. Claimant also advised Boswell that he was a diabetic and had sustained a rotator cuff tear to the left shoulder in a prior skiing accident. Claimant alleges that he could move his left arm and was able to weakly squeeze Boswell's hand. Claimant did not complain of chest pain nor did he appear to be in acute cardiac distress. Boswell was able to discern a possible left shoulder dislocation despite several layers of clothing which made physical assessment difficult. He removed claimant's left glove and determined that he had a positive but "thready," irregular and weak radial pulse and presented somewhat sluggish capillary refill at his fingernails which Boswell believed to be an indication of possible neurovascular compromise. Boswell testified that slow capillary refill may also be caused by the body's reaction to cold weather and is not determinative of neurovascular compromise. Claimant was unable to detect Boswell's pinching of his left hand.

Following his initial assessment of claimant's condition, Boswell radioed for delivery of a wire splint[1]
and a chair board to transport the claimant to the base first aid station. A chair board is a chair-like device attached to a toboggan and used to transport an injured person in a sitting position. This equipment arrived at the scene within an estimated four minutes and Boswell, with the aid of another ski patroller, began to apply the splint to claimant's left arm and torso, maintaining the position of the arm assumed by claimant following his fall. The splint was bent at a 90 degree angle to allow its longest part to rest along the claimant's torso up to the claimant's armpit. The angle created at that juncture supported the upper arm and another 90 degree angle at the elbow allowed for partial support of the raised forearm. According to Boswell's testimony the splint was applied on top of claimant's clothing which included long underwear, a ski sweater and ski jacket. Additionally, Boswell alleges that he padded the body side of the wire splint with a blanket and other materials found in the toboggan. This included padding the claimant's armpit area. The splint was secured to claimant's arm and body with swaths or cravats which were tied to hold the arm to the splint and to secure the lower end of the splint to claimant's body. When claimant was placed on the chair board the splinted arm was further secured to the board to stabilize claimant's injured shoulder during transport to the base first aid station. During the application of the splint claimant complained of increased pain and of a tingling sensation. Boswell was uncertain at trial whether or not he rechecked claimant's pulse after the splint was applied but stated that his initial assessment had already revealed that claimant had likely suffered some degree of neurovascular compromise as a result of the injury sustained in his fall. When the preparation of claimant was completed, he was transported down the mountain to the base first aid station.
Boswell testified that despite his assessment that claimant likely suffered a shoulder dislocation with possible neurovascular compromise he did not believe that claimant's condition on the mountain necessitated a radio call to arrange for emergency medical transportation to a site of definitive care prior to obtaining further physical assessment at the base first aid station.

Claimant arrived at the base first aid station shortly before 1:00 p.m. (12:50 to 12:55 p.m.) and entered the building on a gurney where he was attended by registered nurse Ellen Eager, an ORDA employee, and others. Nurse Eager testified that on her initial assessment interview claimant complained that he lacked feeling in his left arm and hand. She examined claimant and confirmed Boswell's assessment that claimant appeared to have suffered a shoulder dislocation. Eager could not detect a radial or ulnar pulse in the claimant's left wrist but noted and reported that claimant had good capillary refill which indicated to her that claimant had some circulation to the injured limb and blood was getting to his fingers. Nurse Eager testified that although she did not recall removing the splint which ski patroller Boswell had applied she did not believe the splint was present when she examined claimant at the base first aid station. She further testified that it was her recollection that claimant was not wearing the splint when he left the first aid station for Glens Falls Hospital. The base first aid station report (Claimant's Trial Exhibits 7 and 8), in handwritten and in typed form, indicates in the "patrol room" portion the following language "Exam-sling & Swathe with Ace-Tylenol; Adv immediate x-ray & MD eval." The report does not record the presence of the splint except in the portion labeled "on hill." The report further indicates that claimant stated that he had severe pain with "no feeling" in his left hand and arm; he reported a history of previous shoulder reconstruction and stated he is an insulin dependent diabetic. The report (Exhibit 8) contains the following specific language regarding Nurse Eager's examination: "(L) shoulder shelf deformity; no radial or ulnar pulse palpated; no feeling in fingers; color good; skin cool; good capillary refill." Nurse Eager testified that claimant's symptoms were not unusual for someone presenting with an apparent shoulder dislocation. While she was concerned with claimant's condition and advised that an immediate x-ray and medical evaluation were required, she did not believe the claimant's injury warranted helicopter transport to a definitive medical care facility. She alleges that she discussed the use of a private vehicle to transport claimant to the hospital and the possibility of delay in ambulance response time with claimant, his "family" and others at the base first aid station. She testified that a 911 call placed earlier that same day resulted in an ambulance response time of approximately 25 minutes. She alleges that consensus was reached that the fastest option would be private vehicle transport since claimant's own vehicle was parked in close proximity to the first aid station. Neither of the claimants recall having had such a discussion with Nurse Eager regarding transport options but agree that a decision was made to transport claimant in his own vehicle to Glens Falls Hospital, a distance of approximately 34 miles.

Claimant was assisted into the front passenger seat of the vehicle and his injured arm was propped on the vehicle's console with pillows provided by base first aid station staff. Claimant described the ride to Glens Falls Hospital as very difficult and stated that he kept moving in his seat in an attempt to lessen his discomfort. He further alleges that at some point during the journey from the base first aid station to the hospital his left hand began to turn blue. This fact was confirmed by the claimant's wife and the driver of the vehicle but none of the witnesses were able to specifically state the time when the change in coloration became apparent.

Claimant arrived at the emergency room entrance to Glens Falls Hospital and was seen almost immediately by Paul Vinsel, D.O. Hospital records (Trial Exhibit 2) indicate that claimant was registered as a patient by his wife at 14:07 (2:07 P.M.) on March 8, 1998. Dr. Vinsel's report of emergency room care which is part of Trial Exhibit 2, in part, recites the following information:
OBJECTIVE: The patient is a 57-year-old male in severe distress. The temperature is 35.9, pulse 60, respiratory rate 16, blood pressure 136/76. The left shoulder has obvious deformity with a defect in the lateral aspect of the shoulder. I cannot feel the humerus in the glenoid. The patient however is very large and I can't tell whether the humerus is located posteriorly or anteriorly to the glenoid. The left arm is cyanotic. He has capillary refill but it is extremely slow, about 5 seconds in the left hand. He has no sense to soft touch of the left hand or the left arm, though he does have sensation to soft touch in the left shoulder. He is unable to use his left biceps, triceps, wrist extensors or flexors of any of the muscles of the left hand. There is no radial pulse. There is no brachial pulse.

EMERGENCY DEPARTMENT COURSE: The left shoulder was reduced immediately using the scapular rotation method prior to any pain medication being given. The patient tolerated the procedure well and the shoulder was reduced quite easily. He had immediate pain relief in the left shoulder. The left hand started pinking up as did the arm quite quicky and he developed a radial and brachial pulse immediately. However, he still was unable to use any of the muscles of the left arm except for the left shoulder girdle which he could use. His sensation, he can feel pin prick in the left upper arm, left forearm, but no sensation distal to the wrist on the left side.

ANCILLARY STUDIES: Post reduction film of the left shoulder shows no acute fracture and the reduction is in good place. An angiogram was obtained of the left arm to rule out a vascular injury. This was read by Dr. Meacham as being normal with no vascular compromise. The patient was given Morphine 10 milligrams I.V. for pain after reduction of the shoulder and he really has minimal pain now. His left shoulder is placed in a shoulder immobilizer.

ASSESSMENT: Left shoulder dislocation with brachial plexus injury.

At his examination before trial, the transcript of which was received without objection as Trial Exhibit 20, Dr. Vinsel testified that he did not recall seeing a splint on the claimant's arm when he presented at the hospital and, further, that the usual procedure when a patient arrives at Glens Falls Hospital wearing a splint is to leave the apparatus in place until it is removed by the attending physician. Dr. Vinsel assumes that claimant did not present with a splint since no documentation references it and he does not recall seeing one.

Claimant was discharged from Glens Falls Hospital on March 9, 1998 and that day presented himself to Capital Region Orthopaedic Associates where he was examined and evaluated by R. Maxwell Alley, M.D., an associate of Dr. Brian O'M. Quinn. Dr. Alley's report of the examination (Trial Exhibit 3) reported the following in relevant part:
His exam today demonstrates no active motor function of the left extremity. He does have sensation intact. His pulses are full distally. His only motor function is a slight deltoid twitch.

I reviewed his X-rays. There were no pre-reduction X-rays performed. He appears to have a brachial plexus injury which may or may not improve depending on the location of injury.

I have recommended that we observe at present time. I will see him back in two weeks for clinical reassessment.
Additional reports of claimant's visits to Capital Region Orthopaedic Associates are included as part of trial Exhibit 3 which list the claimant's complaints, additional medical consultations and tests to be performed. The March 18, 1998 report of Stuart Erner, M.D. includes a referral to Dr. Andrew Dubin for electromyography and appropriate physical therapy. The April 1, 1998 report mentions a referral to Dr. Tranmer at Albany Medical Center Neurosurgery Department for possible surgical evaluation and medication to reduce the claimant's nerve root irritability. The June 23, 1998 report indicates that claimant has been going to physical therapy three times a week at "Pond View" and to occupational therapy twice weekly at Memorial Hospital and states "[h]e is definitely making progress." The report dated August 18, 1998 recites that claimant was to see Dr. Christopher Calder the following day to determine whether or not claimant is innervated at the site of the prior rotator cuff repair. An additional note dated August 19, 1998 suggests possible exploration "with a view to repair" based upon Dr. Calder's purported finding of a reinnervation of the deltoid and rotator cuff. It appears that claimant's last visit to Capital Region Orthopaedic Associates occurred on June 23, 1999 following a surgical procedure on claimant's left knee (not alleged to be causally related to the subject accident or injury). That report, however, mentions locking of the fingers of claimant's left hand and Dr. Quinn's treatment of the problem. The record demonstrates that claimant's physical therapy took place between April 7, 1998 and October 21, 1998 at Columbia Physical Therapy and occupational therapy took place at Memorial Hospital Hand Rehabilitation Center from April 10, 1998 through January 27, 2000 and that the combined therapies produced remarkably good results.

At trial claimant offered the testimony of the defendant's employees Boswell and Eager and that of Richard Penniman, an emergency medical technician and lifetime member of the National Ski Patrol. Penniman's teaching credentials include a course on ski area mountain operations and safety. Penniman testified that he had written several papers delivered to the International Society for Skiing Safety, including one on mitigating impact injury at U.S. ski areas. After being qualified as an expert in the area of ski safety, Penniman testified as to the standard of care required of a ski patroller in the treatment of a skier suffering from a shoulder dislocation, as established by the National Ski Patrol System. He then described in detail the procedure to be followed by a ski patroller who encounters an injured skier suspected of having sustained a shoulder dislocation. His testimony in that respect included the following:
You would also look for signs of decreased nerve and vascular action in the extremity, the distal area beyond the location – dislocation. Dislocations often cause nerve and blood vessel damage. So you want to check to see what the pulse and nerve reaction is at the fingertips. Check for capillary refill, and so forth. Then after that, it's splint the dislocation. If capillary refill is low, or nerve damage – or nerve function is impaired in anyway, compromised in any way, it is advisable to try to move the arm slightly to try to reestablish blood flow and nerve. Splint in place and immediate evacuation. This is a limb threatening injury in every case, so rapid transport to a definitive care facility is paramount.
When asked what he meant by rapid transport Penniman replied, "The fastest means available essentially." He further stated "as soon as the ski patroller recognizes that it is a dislocated shoulder, a call for an ambulance or Medivac (helicopter evacuation) is required at that point." When asked on direct examination what course of action should be followed when a skier exhibits signs of neurovascular compromise in addition to a shoulder dislocation, Penniman replied:
Again, a slight readjustment of the arm to try to reestablish blood flow and nerve feeling is suggested, and in that case, you already have compromise and rapid transport of the fastest kind is required. This person could lose an arm.
Penniman later offered the following additional testimony:
In the case where a dislocation or compromise of vascular or nervous system is observed on the hill, it is imperative to arrange for rapid transport at that time, in consideration of how far away the definitive care facility is. That has to be taken into account. If the definitive care facility is at the ski area, then rapid transport can be arranged at the first aid facility. Usually, it's across the street or up the road about, you know, two or three minutes. In the case of Gore Mountain where the definitive care is in Glens Falls, which is at – the best estimate that I've heard is 35 to 40 minutes of ambulance transport time, it would be inappropriate to arrange for ambulance transport after getting to the first aid station in the case of a dislocation. You need to arrange for it immediately because the ambulance has to get to the ski area, then its got 35 to 40 minutes from there to get to Glens Falls.
He testified that the same standard would apply to air evacuation. Penniman indicated that the standards concerning which he testified are those established by the National Ski Patrol System in regard to first aid and the care of impaired skiers. He states that the National Ski Patrol's Outdoor Emergency Care Manual is "essentially the manual for emergency care and evacuation of impaired skiers for the U.S."

Penniman opined that the ski patroller responding to Mr. Butler on March 8, 1998 departed from the standard of care applicable to ski patrollers by failing "to follow the standard of care set up by the National Ski Patrol System, the OEC Manual, and the standard of care generally followed in the industry." In response to a request for further explanation Penniman stated:
Okay. The main area that I found was in the [sic] not calling an ambulance or Medivac immediately upon discovering a dislocated shoulder, or suspecting a dislocated shoulder. The splinting process and transportation from the injury site to the first aid room. Also from what I've heard, the testimony was too long. Far longer that it needed to be. The third thing was in turning – well, not the attending patroller, but the nurses turning over the patient to unskilled, untrained individuals for transport to the hospital.
With regard to the treatment and transport of claimant from the place of injury on trail 2-B to the base first aid station the witness gave the following testimony after reviewing Exhibit 8 (accident report):
Q. Mr. Penniman, upon your review of the accident scene, and your familiarity with the terrain of Gore, and your experience and training, do you have an opinion as to the appropriate amount of time that should have been taken to transport Mr. Butler on March 8, 1998 –

A. Yes.

Q. – from the location of his fall to the base first station?

A. Yes.

MS. WALLS: I'm going to object, your Honor. I don't believe this witness is competent to testify when he wasn't there.

THE COURT: Overruled.

A. From what I saw at the accident site, and the ski area, yes I do have an opinion.

Q. Can you please provide that opinion to the Court.

A. My opinion is that the care and the transport of Mr. Butler should not have taken more than 10 to 15 minutes.

Q. Sir, are there occasions when the extrication of a skier may take longer?

A. Sure.
With regard to the issues of duty and breach of duty by ski patroller Boswell on the issue of summoning emergency medical transportation the record contains an admission by Boswell that where an injured skier appears to have sustained a shoulder dislocation accompanied by an abnormal pulse, as in this case, the situation warrants arranging for emergency transportation while the skier is on the hill. He further admitted that the potential for neurological injury in an injured skier suffering a shoulder dislocation and complaining of numbness and tingling in the affected limb warrants emergency transport as soon as possible. When asked about his initial assessment of the claimant's injury Boswell replied that he believed claimant had suffered "[a] possible dislocation or a fracture of the shoulder or a fracture of the shoulder joint with associated compromise of circulation and nerve function." Boswell also admitted that he knew that signs of neurological compromise and/or a finding of vascular compromise could be considered a limb-threatening circumstance. He testified that he was familiar with the OEC Manual's reference to a "golden hour" as that period of time "in which, in a major trauma situation, the things generally stay in a somewhat normal area, and if they are not treated within one hour, they can go in a downhill situation." He acknowledged that the OEC Manual recommends getting an injured skier to definitive care within the "golden hour." Upon his review of specific pages of the OEC Manual Boswell confirmed that pursuant to the first aid training he had received claimant's condition warranted emergency medical transportation. His excuse for not having done so, namely his desire to obtain further injury assessment at the base first aid station approximately 100-150 yards distant from the claimant's location on Trail 2-B is unavailing.

It is undisputed that when claimant was examined by Nurse Eager at the base first aid station she was unable to palpate either a radial or an ulnar pulse. Nurse Eager admitted that this situation was indicative of vascular compromise to the affected left arm and presented at least the possibility of a limb threatening injury. She admitted that claimant's condition was serious enough to require immediate intervention by a physician, as noted on the accident report, yet she failed to even attempt to arrange for emergency medical transportation. The testimony of the claimant's witness, Nurse Melva Olson, as to the appropriateness of placing such a call and the admissions made by Nurse Eager at trial are sufficient to establish that Nurse Eager breached her duty of providing reasonable first aid care under the circumstances presented by failing to contact the Warren County Dispatcher to obtain emergency medical transportation for the claimant. In this regard the Court is unpersuaded by Nurse Eager's testimony that she did not make such an attempt because the Johnsburg Rescue Squad's response time on a call for services placed earlier that day had been twenty-five minutes. This is so because she also testified that on other occasions emergency medical transport response time for that rescue squad was considerably less and, occasionally, was a matter of a few minutes. By failing to even attempt to obtain an ambulance under the circumstances Nurse Eager breached her duty of reasonable care under the circumstances. The Court is not persuaded, however, by the claimant's argument that his injuries required the use of helicopter services[2]
The failure of either Ski Patroller Boswell or Nurse Eager to arrange for emergency medical transportation, which the Court finds was appropriate and necessary, satisfies the first two elements of establishing liability against the defendant. The remaining consideration is whether claimant has proven by a preponderance of the evidence that the breach of duty was a substantial factor in causing the claimant's injuries (
Natale v Niagara Mohawk Power Corp., 135 AD2d 955).
In arriving at a determination of that issue the Court must consider the nature and alleged origin of claimant's injury and the role played by the failure of defendant's employees to arrange emergency medical transportation in causing or exacerbating the claimant's ultimate injuries.

As succinctly stated by counsel in the claimant's post trial brief:
At the outset, it should be noted that claimants do not seek to recover based upon the fact that Mr. Butler fell while skiing. Rather, claimants allege that defendant was negligent based upon the actions or omissions of the defendant which followed Mr. Butler's fall. Specifically, claimants allege that the defendant was negligent in (1) failing to take reasonable and necessary steps to secure the proper transportation of Mr. Butler to a point of definitive medical care, and (2) allowing the metal splint applied by Boswell to remain upon Mr. Butler's arm until he eventually arrived at Glens Falls Hospital.
"It is well settled that in order to set forth a prima facie case of negligence, the plaintiff must demonstrate: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty, and (3) an injury suffered by the plaintiff which was proximately caused by the breach" (
Murray v New York City Hous. Auth., 269 AD2d 288). All elements must be proven by competent evidence and may not be based upon speculation (Markel v Spencer, 5 AD2d 400). The absence of proof concerning any one element must result in a finding of no liability. It is also well established that "[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery since he has failed to prove that the negligence of the defendant caused the injury." (Wiwigac v Snedaker, ___ AD2d ___, 723 NYS2d 248). To recover a claimant need not exclude all other potential causes but must proffer sufficient credible evidence that a reasonable fact finder might conclude his or her injuries were more probably than not caused by the defendant's negligence (Natale v Niagara Mohawk Power Corp., supra, 135 AD2d 955.
First, as to the alleged negligence of defendant's employees in affixing the wire splint and allowing it to remain in place, the Court finds that, in fact, the splint was not removed at the base first aid station but remained in place until removed at some point upon claimant's arrival at Glens Falls Hospital. Claimant's testimony in this regard is largely uncontradicted except for the uncertain testimony of Nurse Eager and the equally equivocal references in certain of the testimony to claimant's jacket being draped over his shoulder while en route. This finding, however, does not compel or support a conclusion that either the application of the splint or its remaining in place while the claimant was transported to the hospital constituted negligence. General Obligations Law § 18-103 (14) imposes upon ski area operators in the State of New York the statutory duty of ensuring the presence of properly trained first aid and outdoor rescue personnel at all times when skiing activity is in progress. No one has here challenged the qualifications or training of either Mr. Boswell or Nurse Eager. Nor has it been alleged that splinting of the claimant's injured shoulder was an inappropriate course of conduct. Instead it is alleged that the placement of the splint caused a focal point of compression which exacerbated claimant's injury.

Upon all of the testimony presented, the Court finds that the claimant has failed to prove any breach of the duty to provide reasonable care under the circumstances (
see, Clark v State New York, 195 Misc 581, affd 276 App Div 10, affd 302 NY 795). Mr. Boswell was confronted with a skier who had fallen on a central slope and obviously injured his shoulder. Whether from a dislocation or fracture, the injury was substantial and Boswell splinted the arm in the manner he found it in an effort to stabilize the extremity to prevent further harm. His testimony that he padded the splint at the armpit and elbow is uncontroverted. He transported the claimant to the base first aid station and relinquished him to the care of Nurse Eager. Nor may Nurse Eager be found to have been negligent in allowing the claimant to remain splinted while being transported to Glens Falls Hospital. No testimony was elicited from which it could be concluded that use of the splint to stabilize the claimant's injured arm was inappropriate under the circumstances. While Dr. Dubin expressed a belief that the splint compressed the radial nerve and Dr. Quinn speculated that the splint may have held the humeral head in such a position as to compress the brachial plexus and/or related vasculature, no reasonable proof was adduced establishing that the claimant's shoulder, which at that time was believed to be either dislocated or fractured, should not have been splinted or that the splint was not necessary or appropriate to immobilize the arm until it could be reduced by a physician at Glens Falls Hospital. Finally, there was no evidence that the splint was applied in a fashion not complying with relevant standards.
Dr. Andrew Dubin testified on direct examination that his electrodiagnostic study of the claimant revealed "clear cut evidence of a diffuse brachial plexus injury. In addition to that, however, there is a component of a focal compression injury that's clearly delineated when one looks at the radial motor nerve." Dr. Dubin further testified as follows: "We would expect him to have axonotmesis, which he does and what we see in addition to it is an area of neuropraxia involving the radial nerve with focal compression consistent with some extrinsic source supplying that compression because of the location of the nerve." Dr. Dubin offered an opinion within a reasonable degree of medical certainty regarding whether the application of a metal splint was a contributing factor to the injury in the following words:
Within a reasonable degree of medical certainty, the electrodiagnostic findings that we see on nerve conduction studies speak quite clearly to the fact that there is a focal area of compression at the radial nerve. Knowing the anatomic location of the radial nerve in the axilla and that it would be subjected to compression from an extrinsic source, if a splint such as this were placed high up in the axilla and affixed in place it could easily be a causative agent in terms of supplying that compression and causing an additional focal injury to that nerve in addition to the more diffuse injury seen from the shoulder dislocation.
Dr. Dubin was not asked and did not offer testimony regarding whether the splint applied over several layers of clothing including a sweater and ski jacket and separated from the body by additional padding applied by the ski patroller, according to Boswell's uncontroverted testimony, would allow placement high enough in the axilla to produce the injury about which he testified. His assumption in this regard is not supported and is, in fact, contradicted by Boswell's testimony regarding the placement of the splint. If we assume the splint was not removed before, during or after claimant's exam by Nurse Eager at the base first aid station then it remained in its original placement over several layers of claimant's clothing including a sweater and ski jacket and the additional padding applied by Boswell between the splint and claimant's clothing, protecting the axilla from the sort of focal compression described by Dr. Dubin. The Court finds Dr. Dubin's testimony to be unpersuasive under the facts elicited at trial.

It is obvious from the claimant's own testimony that his accident was a dramatic and physically traumatic one involving the loss of at least one ski which catapulted him into the air a distance of approximately 35 feet where he landed on his left shoulder and head producing an immediate anterior shoulder dislocation with resulting neurovascular compromise as recognized by Ski Patroller Boswell within minutes of the accident. All of the doctors who testified, whether at trial or through videotaped testimony received in evidence, agree that claimant's accidental fall produced the dislocation. The testimony of claimant's doctors and the defendant's doctor essentially agree that the dislocation caused an interruption of normal blood flow to claimant's left arm and hand and that such interruption or interference with vascular function deprived the nerves servicing the claimant's left arm of essential nutrients, thereby limiting their function and jeopardizing the nerves' viability.

According to his treatment notes and testimony, the emergency room physician who reduced the claimant's shoulder, Dr. Vinsel, did not recall the presence of a splint. He stated that had a splint caused the neurovascular compromise obviously evident to the doctor, and had the splint been removed by emergency room staff or as part of his physical examination of the claimant, that vascular function would have improved within 1 to 2 minutes of removal, if not sooner. Such was not the case in this instance, as Dr. Vinsel testified that he could not palpate either a radial or brachial pulse in the claimant's left arm and that the arm was cyanotic, or blue, upon presentment. In fact it was only subsequent to the reduction of claimant's shoulder that there was an immediate return of both a brachial and radial pulse and a return of color or "pinking" of the claimant's hand and arm. Dr. Dubin's testimony clearly established that the neurovascular compromise to the claimant's left extremity was caused by the anterior shoulder dislocation suffered by the claimant as a result of his fall. According to Dr. Dubin there is "no doubt" that the dislocated humeral head compressed the neurovascular structures of all five nerves found in the brachial plexus. Dr. Christopher Calder agreed that the claimant suffered an ischemic injury attendant to neurovascular compromise but did not express an opinion as to the cause of the condition.

From the medical proof adduced at trial it is clear to the Court that the claimant suffered a neurovascular compromise affecting all five nerves located within the brachial plexus as a direct result of an anterior shoulder dislocation suffered when he fell while skiing at Gore Mountain Ski Area. For this reason, as well as the reasons previously stated, the Court finds that the proof does not support the conclusion that the ladder splint applied by Ski Patroller Boswell was a causative factor in producing the neurovascular compromise and resulting nerve damage suffered by the claimant.

By ruling out liability stemming from the direct action or intervention of the defendant's employees the Court must still consider whether the claimant has proven by a preponderance of the evidence that he suffered a neurological injury, over and above that which resulted from his fall, directly attributable to the defendant's employees' failure to obtain an ambulance to transport claimant to Glens Falls Hospital.

In doing so the Court must consider the fact that a shoulder dislocation sustained as the result of a fall while downhill skiing is the sort of foreseeable injury for which skiers assume the risk by their participation in the sport and for which no recovery is allowed (
see, Morgan v State of New York, 90 NY2d 471). In fact, claimant has clearly stated that he is not seeking to recover for the injuries sustained as a result of his accident on trail 2-B at Gore Mountain Ski Area on March 8, 1998. Recovery in this case must, therefore, hinge upon medical proof establishing what, if any, injury sustained by the claimant is attributable to the delay occasioned by the use of a private vehicle to transport the claimant rather than an ambulance.
As a predicate to the issue of the medical proof it will be helpful to review briefly the testimony of John Combs, a 35-year member of the all-volunteer Johnsburg Rescue Squad. Mr. Combs indicated that he was an ambulance driver for the rescue squad until late 1996, more than one year prior to the subject accident. Mr. Combs, however, professed a general knowledge of the squad and its equipment and alleged that in 1998 the squad had two "in service" ambulances. He also testified that in 1998 the squad had approximately 10 drivers and a number of volunteers categorized as first responders, EMTs and ALS technicians. The witness was asked on direct examination the time required to complete a routine trip from the base first aid station on Gore Mountain to the emergency room at Glens Falls Hospital. In response, Mr. Combs replied that such a routine trip would take between 35 and 40 minutes and that the distance involved was 34 miles. On cross-examination Combs testified that an ambulance would not be dispatched without a driver "and another emergency technician personnel [
sic] available." On occasion there might be as much as a 15 minute delay to obtain the necessary personnel but on those occasions the Warren County Dispatcher would probably contact an alternative provider. Combs testified the Johnsburg Rescue Squad would be given 10 minutes to respond to the initial dispatch before a backup volunteer rescue organization was contacted to respond. The witness on his direct examination had also testified that the distance from the Johnsburg Rescue Squad to Gore Mountain was "about three miles" and the drive from one to the other took "three or four minutes."
While not specifically brought out at trial, it appears to the Court that no action could be taken to transport the claimant until he was transported off the mountain and delivered to the base first aid station. The Court is not persuaded, as urged by the claimant, that Boswell unduly delayed in performing his necessary tasks upon the injured claimant on the mountain and transporting him by toboggan to the base first aid station. Although Mr. Penniman stated his opinion that the care and transport of the claimant "should have taken no more than 10 to 15 minutes" he also recognized on both his direct and cross-examinations that the time involved in treating and removing an injured skier is not precise but, rather, is dependent upon variable external factors. He cited no specific standard to support his opinion and did not explain the specific manner in which the care and transport actually provided was unduly delayed. In fact, except for the time frame involved, Penniman agreed in substantially all material respects with the processes employed by Patroller Boswell in caring for the claimant on the mountain and transporting him to the base first aid station.

It was claimants' burden to establish the defendant's breach of a duty or controlling standard of care. With regard to the proper time involved in the evaluation, treatment and transport of the claimant Mr. Penniman's testimony was offered on the strength of his experience and training. However, as was brought out on cross-examination, Mr. Penniman has not been an active ski patroller since 1985 or 1986 and his only personal experience in providing first aid treatment to injured persons was as an ambulance attendant "for about four or five months" in 1976. Although the Court allowed Mr. Penniman to testify on this issue, the weight to be accorded his testimony is for the Court to decide in light of the whole proof presented (
Rankin v Harding, 191 AD2d 927; Felt v Olsen, 74 AD2d 722). Mr. Penniman's testimony that the initial care and removal of the claimant from the mountain should have taken at most fifteen minutes was conclusory. Moreover, his experience and training in this particular area is notably sparse. Hence, the Court finds that the testimony of claimant's expert is insufficient to establish the existence of an actionable delay by Patroller Boswell in treating the claimant and removing him from the hill to the base first aid station.
Thus, even had Boswell radioed base first aid from the mountain to arrange emergency transport the delay in getting claimant to definitive medical care should still be measured from the point of the claimant's arrival at the base first aid station at approximately 1:00 p.m. If the Court credits Mr. Combs' testimony as accurate claimant would have arrived at the hospital between 1:35 and 1:40 p.m., assuming no delays for traffic, road problems, etc., as opposed to the actual time of registration of claimant by his wife at 2:07 p.m. The Court is convinced that under the best of circumstances claimant would have arrived at Glens Falls Hospital between 1:35 and 1:40 p.m. as measured against the time of claimant's injury which the testimony and documentary evidence establishes was approximately 12:15 p.m.

The medical testimony established that the claimant suffered an ischemic injury resulting

from a loss of blood supply to the nerves. Dr. Calder testified that:
With ischemia, there is loss of oxygen and glucose and so forth to the nerve, and the nerve gradually becomes less and less able to carry on its everyday metabolic functions to sustain itself. As it does that, the nerve starts – the nerve fibers start to die. And the longer the arm is without blood supply, the more damage that will be done. The critical period is probably about from both experimental studies and knowing human involvement is probably about an hour, maybe an hour and a quarter, an hour-and-a-half, but an hour is generally felt to be the critical time involved. And by the end of an hour, there is very little chance that there will not be nerve damage. In other words, by an hour, there will be nerve damage.
The doctor went on to explain the progression which occurs upon interruption of blood supply to the nerve:
The nerve fibers expend their stores of oxygen and glucose and are able to continue functioning, but after an hour, the ability of the nerve to recover is very low. The nerve is – like somebody can be – have a very bad infection but still be alive, but you know you can't save them no matter what you do because the infection is overwhelming. In other words, the loss of supply of nutrients and oxygen to the nerve becomes critical by the end of an hour and the nerve fibers start dying.
Dr. Quinn agreed that nerve death or irreversible damage begins one hour subsequent to the interruption of blood supply to the nerve while Dr. Dubin testified that the critical period is, in fact, one half hour. When asked on direct examination whether, within a reasonable degree of medical certainty, the passage of time was a contributing factor in the injuries suffered by the claimant he responded in the affirmative stating that Mr. Butler sustained a progressive injury in which the more quickly vascular integrity is restored the better the potential neurological outcome. Dr. Dubin then testified that "once you're out past a half hour things start to drop off exponentially in terms of the problems that you run into – they get significantly worse faster."

The Court has previously concluded that Ski Patroller Boswell did not unreasonably delay in performing the tasks required of him in treating and transporting the claimant to the base first aid station. Had emergency transportation been summoned by Mr. Boswell the evidence suggests that an ambulance would have awaited the claimant's arrival at the base first aid station at approximately 1:00 p.m. Although there was general agreement among the medical experts that the claimant suffered a progressive injury, no testimony was received connecting the injuries suffered to the 27 to 32 minutes of additional delay occasioned by the failure of Ski Patroller Boswell to summon emergency transport. Claimant does not seek to recover for the injuries sustained in his fall, namely an anterior shoulder dislocation which caused compression of the neurovascular structures of all five nerves contained within the claimant's brachial plexus. According to Dr. Dubin severe and potentially irreversible nerve damage began to occur within one-half hour of claimant's 12:15 p.m. fall. Claimant was still being treated on the hill within one half hour of injury. Even under the more generous time frame testified to by Drs. Calder and Quinn, nerve death was already underway one hour post injury or 1:15 p.m., at which time claimant would not have been half way to Glens Falls Hospital even had an ambulance been called. Although claimant sought to prove that trained emergency services personnel might have been able to take some action to enhance blood flow to claimant's injured arm while en route to the hospital the proof offered upon this subject was wholly speculative. All witnesses inquired of in this regard agreed that EMS personnel were not permitted to reduce the claimant's dislocated shoulder. While there was some testimony that such personnel might massage the affected area or manipulate the arm to improve vascular functioning it was also made clear that it was as likely as not that massage would have no appreciable effect and manipulation of the arm and shoulder would not be possible given the painful nature of the injury and the possibility that any such action would, in fact, cause additional harm.

The claimant has failed to establish that the negligence of the defendant was a substantial factor in causing his injuries in that it cannot be said upon the evidence presented that the failure to summon emergency transport had "such an effect in producing harm as to lead reasonable men to regard it as a cause" (Restatement [Second] of Torts § 431, comment
a; see, Ortiz v Kinoshita & Co., 30 AD2d 334). The proof offered would leave the Court to speculate what, if any, part of the claimant's injuries are attributable to the negligence of the State. In this regard the Court is mindful of the long-standing decision in Clark v State of New York, supra, which upon analogous facts found a failure of proof as to whether the cause of claimant's ultimate injury was the result of his participation in a bobsledding event or the method by which he was transported to more definitive medical care. Claimant has simply failed to prove that his injury was sustained as a result of the defendant's negligence, whether in whole or in part. The medical proof in this regard was simply inadequate to establish that the defendant's negligence in precipitating a 27-32 minute delay in securing required medical care was a competent producing cause of claimant's injuries (Dunham v Canisteo, 303 NY 498). As the matter has been left in doubt, and it is equally probable that the injury resulted from a cause for which the defendant is not responsible, there can be no recovery and the claim must be dismissed (Ruback v McCleary, 220 NY 188).
Let judgment be entered accordingly.

August 15, 2002
Saratoga Springs, New York

Judge of the Court of Claims

[1]The splint used was alternatively referred to as a wire, chicken wire and ladder splint by various witnesses at the trial.
[2]See, Butler v New York State Olympic Regional Dev. Auth., 292 AD2d 748, 753-753.