New York State Court of Claims

New York State Court of Claims



Court found no liability on part of the State for icy condition on slope of Gore Mountain encountered by intermediate skier who reported to medical personnel that accident resulted from her catching an edge. Considering claimant's level of experience and knowledge of the risk of encountering an occasional icy patch claimant assumed the risk of her injury.

Case Information

1 1.Richard Steiners' claim is derivative only and references to claimant in the singular refer to Diane Steiner unless otherwise noted.2 2.The Court sua sponte amended the caption to delete the State of New York as a defendant and to properly name the New York State Olympic Regional Development Authority as the proper defendant.
Claimant short name:
Footnote (claimant name) :
Richard Steiners' claim is derivative only and references to claimant in the singular refer to Diane Steiner unless otherwise noted.
Footnote (defendant name) :
The Court sua sponte amended the caption to delete the State of New York as a defendant and to properly name the New York State Olympic Regional Development Authority as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Robert A. Becher, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 12, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The bifurcated trial of this claim took place in Albany, New York on April 28, 2003 and the decision herein addresses solely the issue of liability.

The claim seeks to recover money damages for injuries sustained by Diane Steiner on January 1, 2000 in a skiing accident at Gore Mountain, a ski resort operated by the New York State Olympic Regional Development Authority (ORDA) at North Creek, New York.

The claimant alleges that while skiing trail 3B at Gore Mountain she unexpectedly came upon an icy area on the left side of the trail concerning which no notice or warning had been provided. The claimant was unable to stop, skied over the icy area and became airborne injuring herself upon impacting the ground. Claimant stated that she was a solid intermediate skier who began skiing in 1975. She testified that she skied beginner and intermediate trails as often as 20 to 25 times per season and she admitted being aware that slope conditions can change during the course of the day.

Claimant alleges that she and her husband (Richard Steiner) arrived at Gore Mountain at approximately 11:00 a.m. on the date of her accident. She alleges further that she checked surface conditions on the Internet prior to arriving at the facility and reviewed the surface condition report posted in or near the lockers. She asserted that the Internet posting that morning listed most beginner and intermediate trails as having packed powder. Her husband skied for approximately one hour before claimant started skiing. After joining her husband the two skied one run down Sunway during which claimant observed surface conditions on that trail to be mostly packed powder. Following claimant's initial run down the mountain she and her husband took the Sunway chairlift up the mountain and skied approximately 150 feet from the Sunway chairlift to the top of trail 3B describing the conditions encountered there as good. Claimant alleges that there were no warning signs at the top of 3B and that she looked down the trail but saw no warning signs such as the bamboo poles topped by orange disks used to indicate skiing hazzards. Claimant alleges that her husband skied down the right side of the trail and went out of sight. Claimant testified that she then started down the left side of trail 3B traversing back and forth. She skied for approximately 100-150 feet without incident when she noticed that her speed was increasing. Claimant testified that she felt ice beneath the snow and traveled approximately 200 feet on the ice prior to her fall. Claimant stated that she attempted to stop by going into a snowplow and tried to turn to ski off the ice but was unsuccessful in either of these maneuvers. Claimant testified that she does not know what specifically caused her to fall but that upon doing so she felt a great deal of discomfort and extreme pain in her lower back and right side. She further alleges that her skis and bindings were inspected prior to the 2000 ski season and that she experienced no equipment problems with her skis, boots or bindings. Claimant testified that she had no recollection of discussing how the accident happened with the ski patrol or with any other Gore Mountain employees.

On cross-examination claimant testified that she had been skiing for 25 years prior to the accident and that she teaches fourth grade students to ski as part of a program sponsored by the Shalmont School District at the Maple Ridge Ski Center. She acknowledged that ski trails can contain icy patches and that surface conditions can change during the course of a day. Claimant testified that she checked the Gore Mountain website at approximately 9:00 a.m. on the day of her accident but stated that she did not check the afternoon ski condition report before she began to ski that day. Claimant denied that she was an aggressive skier. She also denied that she was an advanced intermediate skier insisting, as she testified earlier, that she is a "solid intermediate skier". Claimant stated that she was familiar with procedures used to stop while skiing including the use of ski edges and "snowplowing." She alleged that when she started skiing down trail 3B she was traveling at approximately 10 mph and that after encountering the icy area she tried to stop using her ski edges but could not because the edges would not grip the ice. She then tried unsuccessfully to slow her speed and turn off the ice by performing a snowplow maneuver. Significantly, claimant testified that she never saw ice on the trail either before or after her accident on January 1, 2000. Claimant described trail conditions during her first run down the mountain as good and had no recollection of telling the nurse at the base first aid station following her accident that she had "caught an edge".

On redirect examination claimant clarified her earlier testimony indicating that she is not a certified ski instructor and that the Shalmont ski program takes place during four weekends in January of each year. She largely restated her prior testimony on direct examination and concluded by indicating that on the date in question Gore Mountain was not crowded.

Richard Steiner testified that he and his wife held season passes at Gore during the 1997/1998 and 1998/1999 ski seasons and that they skied the mountain twenty or more times in both years. During the 1999/2000 season he had skied Gore three or four times prior to the date of his wife's accident. He expressed familiarity with trail 3B and the lower Sunway chairlift leading to the trail. He was also familiar with Gore's method of rating trails using green to designate easy trails; blue to designate intermediate trails and black to designate expert trails. He was similarly familiar with the symbols used to indicate a particular trail's level of difficulty and stated that on January 1, 2000 trail 3B was designated a blue square or intermediate trail.

Mr. Steiner stated that on the date of his wife's accident the couple arrived at the mountain at approximately 10:45 a.m. and that initially he began skiing without his wife. He alleged that prior to going to the slopes he had checked the ski condition report posted near the locker area at Gore Mountain. After having been shown claimants' exhibit 2 for identification the witness testified to his belief that exhibit 2 was not the condition report which he reviewed on the morning of January 1, 2000 at Gore Mountain. Mr. Steiner stated that he and his wife always checked ski conditions on the Gore Mountain website prior to leaving their home and that if icy conditions were reported they would cancel any plans to ski that day.

The witness testified that he was on the slope by 11:00 a.m. on the day in question and had taken three trips prior to skiing with his wife. He related that surface conditions during his previous runs were fairly good and that there were not a lot of people at Gore that day. The witness testified that after joining his wife the two took the Adirondack Express Lift to Upper Sunway then skied to Lower Sunway. The two then took the Lower Sunway chairlift to the top of Lower Sunway. The co-claimant described the weather conditions as sunny to partly sunny and the temperature as approximately 30 to 35 degrees Fahrenheit. He testified that from the top of Lower Sunway he and his wife skied under the chairlift to trail 3B where they stopped at the head of the trail. Mr. Steiner alleges that there were no markings at the top of the trail regarding icy conditions and that the top of the trail was narrow causing him to enter first rather than skiing side by side with his wife. He described the overall conditions of trail 3B on January 1, 2000 as "skiable." After proceeding approximately 100 yards down the hill he stopped to wait for his wife who was not within his line of sight from his position on the trail. Mr. Steiner testified that when his wife came into view he noticed that she was proceeding faster than she normally skied and that her speed appeared to be increasing. He testified that his wife went past him at a high rate of speed. The witness testified that he did not observe his wife fall and that when he went to his wife's aid he observed that the trail was "glare ice" in the area where she fell and that a large area of ice approximately 30 to 50 feet wide by 50 to 75 feet long was located uphill of claimant's resting place. He indicated that the area was not marked by any warning signs. After arriving at his wife's location she asked him to take her skis off and after having done so the two waited for the ski patrol to arrive. Mr. Steiner testified that he did not discuss the icy condition he observed on the trail or its involvement as a contributing factor to his wife's fall with the responding member or members of the ski patrol.

On cross-examination the witness testified regarding his skiing experience indicating that he began skiing in approximately 1994. He then described his skis, boots and bindings and testified that he was familiar with Gore Mountain. The witness also testified regarding his knowledge of the risks involved in skiing, including the risk of encountering icy spots and the risk of falling. He testified that he was aware icy conditions may be encountered while skiing at Gore Mountain and that he had, in fact, encountered such conditions while skiing at Gore in the past although he testified that in his experience icy conditions were usually but not always marked. The witness testified that Exhibit 2 relates that the trail conditions on trail 3B on the morning of January 1, 2000 included icy patches, packed powder and hard pack. He testified that he scanned the posted surface condition report on the date in question for the conditions on various trails but did not specifically review the conditions for trail 3B.

Exhibits 4A through 4M were received in evidence to establish the contours and general configuration of trail 3B. The witness testified that because the top of trail 3B is narrow he and his wife did not ski down the trail together. He repeated his earlier testimony that he skied down the trail first and waited several hundred feet down the trail for his wife to catch up with him. When he saw her come into view she was coming down the trail at a much higher speed than she normally skied. He testified that he did not notice any ice on the right side of the trail as he skied down in advance of his wife. The witness admitted that he never mentioned the large icy area he observed after his wife's fall to the ski patrol following the accident.

On redirect examination the witness alleged that he understood the term "icy patch" on a surface condition report to mean a small icy area. He testified that in his opinion the icy area he observed on trail 3B would not properly be characterized as an icy patch.

Before resting claimants' attorney read into the record, without objection and with the Court's permission, excerpts from an examination before trial of Mark Anderson, Ski Patrol Director at Gore Mountain. The transcript of the examination before trial from which claimants' attorney read was marked as exhibit 5 for identification but was neither offered nor received in evidence. The following information regarding Anderson's testimony was obtained from the Court's review of the recording of the trial.

In response to questions from claimants' counsel, the ski patrol director indicated that his duties included the supervision of approximately 120 people and that he oversees every aspect of the patrol operation at Gore including training. With reference to Gore Mountain general surface condition reports the witness testified that conditions are indicated by codes which are explained in a legend on the face of the report with the primary condition listed first followed by other prevailing conditions. Anderson further testified that in January of 2000 Gore Mountain did not have written rules and regulations as to when warning signs were to be posted by members of the ski patrol. He did testify, however, that every ski patroller at the facility was familiar with the need to mark hazards. He stated that every patroller knows that hazards should be eliminated and that if hazards cannot be eliminated they should be marked by the erection of "slow" signs, "caution" signs or monopods. He further testified that a trail would be closed in the event a hazard could not be adequately managed by the erection of appropriate signage. Specifically with reference to icy patches, Anderson testified that if an icy patch were invisible to an oncoming skier a lollipop or monopod would be erected uphill of the patch to warn skiers of its existence. In response to counsel's inquiry the witness testified that the size and visibility of an icy patch would be factors considered by the ski patroller in determining whether or not warning apparatus should be erected. Anderson testified at his EBT that the trails at Gore Mountain are subject to formal inspection twice a day and are continuously inspected by ski patrollers throughout the day. He acknowledged that if a ski patroller skiing on a trail but not formally inspecting it observed a hazard he or she should call to arrange for signage to be placed at the hazard. Claimant rested following counsel's reading of the above portions of Anderson's examination before trial testimony.

The defendant moved to dismiss the claim on the basis that claimant had not demonstrated a prima facie case. The Court reserved decision on the defendant's motion which is now denied.

The defendant's first witness was Garry Boynton, a volunteer ski patroller at Gore Mountain. Mr. Boynton testified that he responded to the claimant's accident on January 1, 2000 at approximately 2:45 p.m. Upon his examination of Exhibits 4A through 4M the witness testified that those photographs accurately depict the configuration of trail 3B as it existed on January 1, 2000. He described the surface conditions of trail 3B where he found claimant as packed powder and hard pack which he described as normal ski conditions. He testified that he was required to ski down trail 3B in responding to claimant's accident and that he neither saw nor experienced ice on the trail at that time. In response to counsel's direct inquiry the witness testified that he did not observe a large icy surface such as that previously described by claimant's husband. He further testified that he did not observe any conditions on trail 3B which would have required the posting of warning signs or other hazard markings.

On cross-examination the witness indicated that he did not recall the manner by which he was notified of the claimant's accident but did recall that in order to get to the scene of the accident he traveled from the Saddle Lodge to Sunway and down trail 3B. The witness could not recall which side of trail 3B he skied down in order to reach the claimant.

The defendant's second witness was Mark Anderson, the Ski Patrol Director at Gore Mountain whose examination before trial testimony had earlier been read into the record by claimants' attorney. The witness identified claimants' exhibits 2 and 3, respectively, as the Gore Mountain morning and afternoon surface condition reports for January 1, 2000. Anderson testified that according to exhibit 2 trail 3B was inspected at 8:30 a.m. on the morning in question. He testified that the resulting surface condition report was posted on the central information board and at the ski school desk and denied that surface condition reports are or were posted in or near the facility's locker areas. With reference to exhibit 3, the witness testified that the afternoon ski condition report resulted from an inspection of trail 3B conducted at 12:15 p.m. by a very experienced ski patroller. The witness further explained that these conditions were reported in a code explained by means of a legend set forth in the left hand column of the report. Comparison of the codes entered on the exhibit with the code legend relates that the patroller reported the conditions as "PP [packed powder] HP [hard pack] IP [icy patch] TC [thin cover]." The witness pointed out that the code conditions explained in the legend include separate codes for an icy patch and an icy surface. He further testified that exhibit 3 contains no indication of the presence of an icy surface with respect to trail 3B. Anderson was questioned whether in his twenty years of experience in the Gore Mountain Ski Patrol he had ever observed an icy patch transition into an icy surface in the course of one to two hours. To this inquiry the witness responded that he had never seen conditions as described by claimant's husband in his trial testimony. The witness concluded his direct examination by testifying that it is possible for a skier to "catch an edge" on an icy surface.

On cross-examination Anderson testified that the morning ski report included inspections recorded as early as 7:30 a.m. and as late as 10:00 a.m. He further testified that the afternoon report indicated inspections conducted as early as 12:15 p.m. and some as late as 1:22 p.m. The witness explained that in each instance the report would not have been published prior to the completion of the last recorded inspection related in the report. In response to questioning by claimants' counsel the witness testified that the average snow base for trails at Gore Mountain on January 1, 2000 was between four inches and twenty-six inches and that he had no specific information regarding the depth of the base on trail 3B. The witness again explained that the surface condition report first listed the code for the primary characteristic of a trail followed by additional codes relating other prevailing conditions which were not presented in any particular order. The witness testified as he had at his earlier examination before trial that if an icy patch exists on a trail which cannot be seen by a skier it should be marked with a monopod. Anderson could not recall if trail 3B contained any marked icy patches on January 1, 2000.

On redirect examination the witness testified that as of January 1, 2000 Gore Mountain had been open for skiing for 34 days.

On recross examination the witness admitted that weather conditions determine whether snowmaking can occur. He testified that if temperatures ranged between 35 to 37 degrees no snowmaking could or would take place at Gore Mountain.

The defendant's next witness was Kirby Van Vleet who described himself as a volunteer ski patroller. The witness testified that he had 25 years' experience as a ski patroller, fifteen of which occurred at Gore Mountain. He further described himself as a registered member of the National Ski Patrol by which he is rated as a senior patroller. The witness testified that he conducted the 12:15 p.m. surface condition inspection of trail 3B on January 1, 2000. The witness testified that he inspected the trail from top to bottom and noted the primary condition on the trail was packed powder with hard pack, icy spots and thin cover. He testified that as was his custom he reported the trail conditions in descending order of prevalence. The witness was asked to differentiate between the designations "icy patch" and "icy surface". He indicated that ice the full width of the trail from top to bottom which would generally occur after rain and a freeze would be characterized as an icy surface. An icy patch on the other hand was described by the witness as a small area of ice. He testified that icy patches are very common in the northeast United States. The witness testified upon being advised of claimant's husband's testimony regarding his observation of an icy area measuring 30-50 feet wide by 50-75 feet long that he did not see such an area on January 1, 2000.

On cross-examination the witness repeated his direct testimony that it was his practice to list conditions on the surface condition report in order from most to least prevalent as observed on the trail. The witness described icy patches as having a maximum diameter of approximately 10 to 15 feet and testified that he observed up to 10 such icy patches on trail 3B on January 1, 2000, primarily in the center of the trail. Van Vleet explained that he either telephones in surface reports or reports observable conditions verbally to base first aid. He stated that he could not specifically recall the conditions of trail 3B on January 1, 2000 and that he relied on the information contained within exhibit 3 during his testimony. From his review of exhibit 3 the witness testified that nothing contained therein indicated that a warning was required on trail 3B on the date in question.

On redirect examination the witness testified that he would have reported any condition on 3B which he felt required a warning.

The defendant's final witness at trial was Christine Lee, a registered nurse employed at the base first aid station at Gore Mountain on January 1, 2000. With reference to claimants' exhibit 1, described as an accident report, she testified that it was part of her duty to inquire as to how the accident happened. She testified that as indicated on exhibit 1 claimant told her that she "[c]aught an edge".

On cross-examination the witness freely admitted that she did not recognize the claimant who was present in the courtroom and does not specifically recall treating or speaking with the claimant on January 1, 2000. She further testified that as reported on exhibit 1 claimant indicated that she had pain. At the conclusion of Ms. Lee's cross-examination the defendant rested.

With regard to the defendant's motion to dismiss, the Court takes cognizance of "the well-recognized proposition that on a motion to dismiss a claim at the close of proof pursuant to CPLR 4401 based upon claimants' failure to make out a prima facie case, the evidence must be viewed in the light most favorable to claimants, the nonmovants, and the Court must afford claimants every favorable inference which may properly be drawn from the evidence (see, Szczerbiak v Pilat, 90 NY2d 553, 556; Schriber v Melroe Co., 273 AD2d 650, 652; Lyons v McCauley, 252 AD2d 516, lv denied 92 NY2d 814). Only if, upon so viewing the evidence presented, there is no rational process by which the factfinder [sic] could base a finding in favor of claimants, is judgment dismissing their claim as a matter of law appropriate (see, Szczerbiak v Pilat, supra)" (Butler v New York State Olympic Regional Dev. Auth., 292 AD2d 748, 750 [emphasis in original]).

Mr. Steiner testified that he observed his wife proceeding at a rate of speed greater than she normally skied as she passed him on trail 3B and subsequently went out of sight. Mrs. Steiner testified that she first noticed her speed increasing as she began to ski down the left side of trail 3B. She stated that she found herself on ice and could not turn, stop or slow her acceleration on the icy surface. Further, Mr. Steiner testified that immediately after his wife's accident he observed a large area of glare ice approximately 30 to 50 feet wide and 50 to 70 feet long on trail 3B. Although Mrs. Steiner could not state what specifically caused her fall and her husband did not witness the event, the Court finds that the claimants have established the factual predicates of a prima facie case. If credited, their testimony taken together would establish a large icy area which was unmarked and not readily apparent which caused the claimant to lose control of her speed which substantially contributed to a subsequent loss of control and Mrs. Steiner's ultimate accident. Upon viewing the proof in the light most favorable to the claimants and affording them the benefit of every favorable inference, the Court finds the requisite elements of a prima facie case have been established for purposes of defeating defendant's motion for judgment during trial (CPLR 4401).

"Voluntary participants in the sport of downhill skiing assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and man-made objects that are incidental to the provision or maintenance of a ski facility" (Fabris v Town of Thompson, 192 AD2d 1045, 1046). It has further been held that "[i]f a downhill recreational skier voluntarily participates in the activity, the duty of the ski facility is limited 'to mak[ing] the conditions as safe as they appeared to be and if the risks of the activity were fully comprehended or perfectly obvious, [the skier] consented to them and [the facility] performed its duty' " (Hyland v State of New York, 300 AD2d 794, 794-795; Giordano v Shanty Hollow Corp., 209 AD2d 760, lv denied 85 NY2d 802, citing Turcotte v Fell, 68 NY2d 432, 439). In Hyland at p 795, the Appellate Division, Third Department went on to say that "[w]hether such participant assumed a particular risk, in turn, depends on whether he or she had knowledge of the risk and appreciated it, given his or her skill and experience level (see, Morgan v State of New York, 90 NY2d 471, 485-486; Giordano v Shanty Hollow Corp., supra)."

The trial record reveals that the claimant was an experienced intermediate skier who had skied at Gore Mountain on numerous occasions in the past.

Richard Steiner testified that following his wife's accident he observed an area of glare ice described by the witness as covering an area approximately 30-50 feet wide and 50-75 feet long uphill of the site of his wife's accident. Diane Steiner's testimony in that regard differed somewhat from that of her husband in that she testified that she was traveling on ice for approximately 200 feet prior to her fall. However, she also testified that she did not see any ice and did not know what specifically caused her to fall. In sharp contrast to the testimony of Richard Steiner was the testimony of the defendant's witnesses including Garry Boynton, the volunteer ski patroller who responded to the scene of Mrs. Steiner's accident soon after it occurred. Mr. Boynton testified that he did not observe trail 3B to be icy as he skied down the trail in responding to Mrs. Steiner's accident. He stated that he did not observe the type of large icy area described by Mr. Steiner or any other icy condition which he felt required warning signs or markings. Additionally, the Gore Mountain volunteer ski patroller who conducted the 12:30 p.m. inspection of trail 3B testified that he observed trail conditions to be packed powder, hard pack, icy spots and thin cover in descending order of prevalence. He also denied having seen a large area of ice such as that described by the claimant's husband. Importantly, neither claimant mentioned the expansive area of ice they now contend caused Mrs. Steiner's injuries to either the ski patrollers who responded to the accident or to the nurse at the base first aid station. In fact, the only contemporaneous reference to the cause of the accident is the statement contained in the accident report form completed by Christine Lee which states "[c]aught an edge [and] landed on my hip."

Through the observation of the witnesses at trial the Court finds most credible the testimony of the defendant's witnesses which is supported by the documentary proof offered by the claimants. While there undoubtedly were icy patches on trail 3B on the date of Mrs. Steiner's accident the claimants have failed to establish the existence of a large 30-50 feet wide by 50-70 feet long icy area by a preponderance of the credible evidence. Having failed to establish that the defendant created or failed to warn of a condition which was "unique and created a dangerous condition over and above the usual dangers that are inherent in the sport (Owen v R.J.S. Safety Equip., 79 NY2d 967, 970)"

(Morgan v State of New York, 90 NY2d 471 supra at 485) the claim must be dismissed.

Furthermore, considering the injured claimant's 25 years experience as a skier, her level of proficiency, and her knowledge of skiing conditions in the Northeastern United States generally and at Gore Mountain in particular, the Court finds that claimant assumed the risk of injury from the icy spot or spots which she encountered on trail 3B on January 1, 2000. The Court further finds that the defendant satisfied its duty to warn skiers of the presence of icy patches on said trail by its preparation and posting of general surface condition reports following both morning and afternoon inspections on the date of claimant's injury, both of which related the presence of icy patches (see, Giordano v Shanty Hollow Corp., 209 AD2d 760, supra; Calabro v Plattekill Mt. Ski Ctr., 197 AD2d 558, lv denied 83 NY2d 754).

The claim is, accordingly, dismissed.

The Clerk shall enter judgment in accord with this decision.

August 12, 2003
Saratoga Springs, New York

Judge of the Court of Claims