Claimant, Donna Moors, in this timely filed claim, alleges she was injured on
February 18, 2000 when the snowmobile she was operating in the Fourth Lake
Campground overturned while she attempted to avoid the Defendant's plow truck
which she claims was operated negligently. This decision addresses only the
issue of liability.
Donna Moors, a snowmobiler since 1972, testified that on February 18, 2000 she
was injured in a single vehicle snowmobile accident as she maneuvered to avoid
an oncoming plow truck in the Fourth Lake campground located in Lake Luzerne,
New York. That day, after returning home from work, Moors and her housemate,
Peter Schermerhorn, packed two snowmobiles onto a trailer and traveled to
Wilke's Resevoir in Warren County where they were to begin their snowmobile
travels that night with other individuals. The Claimant and Schermerhorn were
joined along the way by her brother and her brother's girlfriend, Lisa Faracaro,
and two other friends. They all left "The Den", a restaurant in Lake Luzerne,
on five sleds. Claimant drove the sled she and Faracaro shared. Their route
took the riders across the street from The Den, through the Town of Lake Luzerne
parking lot and then into the woods. While riding, Claimant testified, there
was no means of communication between snowmobilers.
After traveling approximately 15 minutes through the woods, the group entered
the Fourth Lake Campground, an area in which Claimant had previously traveled on
snowmobiles approximately "10 times". As they entered the campground it was
dark and snowing. Claimant saw "signs all over a lot of trees" and "some had
arrows" but acknowledged that she was not paying attention because "she was a
follower." At the point the snowmobile trail left the woods and joined the
campground road, Claimant testified, she chose to stay on flatter ground
because she had a passenger and was driving slowly. She described the flatter
ground as being the middle of three trails.
Claimant next testified that she saw two lights in the distance and assumed
they were two snowmobiles, so she let off the throttle and was "going very
slow." She could not estimate the distance between herself and the lights when
she first saw the lights, although she estimated her speed at 15-20 mph. She
testified that as the lights got closer she realized it was not a snowmobile but
rather a pick-up truck. She hit her brakes, her snowmobile "fishtailed", and
she tried to steer to the left to avoid going up the bank [to her right].
Claimant testified, "I flipped over on my left side and I must have put my foot
down and it [the snowmobile] landed right on top of me." The truck, which
Claimant testified was slowing down, came to a stop right in front of her, "less
than 5 feet away." She described the pick-up truck as having an emblem on the
side door and being occupied by two men. According to Claimant, the plow blade
was down and the truck only had two headlights - there were no other lights on
the truck. Claimant testified someone in the truck asked if she was
On cross-examination, Claimant reiterated that the snowplow did not make
contact with her or the snowmobile and that she must have put her foot down. She
testified the truck driver steered to his left [ her right] and she believed
the truck went into a snowbank. Claimant stated "you would never expect to see
a truck in the woods when you are snowmobiling" and acknowledged she did not
know about the location of the trail in the campground. Claimant, in reviewing
photographs of the roadway of the Fourth Lake Campground (Exhibits
), while disputing that on the night in question the blacktop was visible as
depicted in the photographs, identified the snowbank in the photos as being to
her right as she traveled through the campground that
Claimant's next witness was Peter Schermerhorn, owner of the
two snowmobiles he and Claimant were riding on Friday February 12, 2000.
Schermerhorn described the trails used that night as being both public and
private trails. After leaving the restaurant in Lake Luzerne, Schermerhorn was
not sure of the trail used but described it as the one at the "back part of
Fourth Lake near horse stables". Although familiar with the area, he did not
recall seeing a sign advising when one had entered the campground. The trail
system is marked with diamond shaped placards depicting an arrow. This signage
is found on trees along the trail. Schemerhorn recalled these signs on the
campground property. At the time of the accident, it was snowing heavily with
swift accumulation. Schermerhorn stated they were traversing 6 inches of newly
fallen snow. Based upon his snowmobiling and camping experience in the area, he
described the trail within Fourth Lake Campground as being 25 feet wide. He knew
the trail to be a road and "there was an area on the right that was more for
snowmobiles". However, the left-hand side of the road was also being used, as
that resulted in "a smoother ride". Schermerhorn and Claimant, whose sled he
was following, were using the left-hand side as was the truck which traveled in
the opposite direction. Throughout the campground the right-hand side was
approximately 10 inches higher than the left side. Schermerhorn stated the
upper and lower portions were both approximately 12 feet wide. There was no
signage or barriers to prevent a snowmobiler from using the lower portion and
the only separation was the height differential.
When Schermerhorn first saw the approaching lights, he was 10-15 feet behind
Claimant and the truck was 300 feet in front of him. Prior to seeing these two
lights, Schermerhorn did not recall any traffic moving in the opposite direction
within the campground. Schermerhorn testified that as he slowed down he watched
Claimant's sled turn to the left and flip upon its side. At the same time, the
truck, which Schermerhorn described as "still coming at her", slammed on its
brakes and slid to the right [Schermerhorn's left] into the snowbank and came to
a halt facing Claimant's sled about five feet apart. He described the truck as
having only two headlights and no other lights on at the time of the accident.
After he had picked the sled off Claimant and moved both sleds out of the way,
Schermerhorn responded to an inquiry from one of the truck's
occupants that she was okay. After the vehicles stopped, Schermerhorn
testified the truck had to back up to straighten out before it could proceed.
On cross-examination, Schermerhorn testified he was unaware that the
road was plowed but knew that the snowmobile trail was groomed (leveled) and
maintained by a snowmobile club. Schermerhorn knew he was travelling on the road
but saw no reason to advise anyone in his party that it was a road as there were
snowmobile tracks in the lower portion of the roadway.
Claimant introduced the testimony of Charles F. Johnson, the operator of the
pick-up truck, through a reading of a portion of Johnson's pre-trial deposition.
At the time of the accident, Johnson was employed by the New York State
Department of Environmental Conservation (DEC) as a supervisor. The campground
was closed in the wintertime. Johnson testified that the entrance and the loop
road are plowed to permit crews to work in the campground and for Johnson to
remove snow from the roofs of four buildings. Johnson was aware that one side
of the paved camp road was used as the snowmobile trail and the other side was
kept open for work trucks to traverse. There were no signs marking which side of
the road was the trail.
Johnson testified that as he was travelling approximately 15-20 mph, he came
around a corner and saw a snowmobile drop down into the road and shoot back up
onto the bank. He locked up his brakes and was sliding when another snowmobile
with two people on it dropped into the road, "tipped up, righted itself and went
back up on the snowmobile trail". He avoided hitting them as he slowed down.
He looked in his rearview mirror, noting, . . . "wow, that [was] a close call"
(EBT transcript p 28). Johnson testified the truck did not slow down a lot
while he was applying the brakes and indicated there was little room in which to
maneuver the truck. He stated that the two persons on the sled were both girls.
He also testified it was common practice to plow the Fourth Lake Campground at
night if it needed it.
At the conclusion of Claimant's direct case, the Court reserved
decision on Defendant's motion to dismiss. The Defendant, also, called Charles
F. Johnson to testify on its behalf. Johnson testified his responsibilities in
February 2000 included keeping the Fourth Lake Campground open. On the night
of the subject accident, Johnson testified he returned to work at 8:00 pm to
perform plowing duties after having worked a full shift earlier in the day.
Johnson described the truck he used as being equipped with an orange revolving
light mounted on the cab and headlights above the plow. Johnson plowed other
properties before heading to Fourth Lake Campground around 9:30 p.m. Once at
Fourth Lake, he knocked down the "scrapper bank" left by the highway plows,
cleared the entrance area five to six cars wide and 150 deep and then plowed to
the back of the campsite (a distance of about half a mile), looped around and
went back to the entrance to repeat the route. As he plowed, the snow was
pushed toward the trail [higher level] to create a berm. Using Exhibit E,
Johnson indicated the point where the trail exited the woods and met the
campground's paved road
testified that the accident occurred when the first snowmobile came onto the
road and turned towards him and then veered right back onto the trail. In
response to seeing the snowmobile, Johnson immediately hit the brakes but the
truck continued at the same speed sliding down the road. The truck passed much
closer to the second snowmobile, which Johnson testified took the same path as
the first snowmobile. The second snowmobile took the berm on an angle tipping
the machine, which then righted itself. This he observed in the truck mirrors.
Johnson denied stopping or talking with anyone
on the snowmobiles.
On cross-examination Johnson maintained he had the orange cab
light on and was alone in the truck while plowing. Johnson also testified that
the rider of the first snowmobile had stopped his machine and was running back
toward the intersection waving his arms, which he observed "off [his] left
shoulder." Johnson also described his vehicle's movement as both "a slide" and
"a controlled slide".
Defendant also called Gary Edward West, the DEC supervisor responsible for DEC
facilities in Warren, Washington and Saratoga Counties. West testified the
campground is open from mid-May through mid-September and that physical plant
improvements and tree removal are done on either side of the campground season.
In the winter months, DEC is required to keep one half of the campground roads
open for maintenance crews. West testified regarding the "Adopt a Natural
Resource" program by which snowmobiles clubs can be authorized, as here, to
maintain snowmobile trails over State land.
Each driver had a duty to operate his or her vehicle with reasonable care under
the circumstances, to maintain a reasonable rate of speed, to keep his or her
vehicle under reasonable control, to keep a proper lookout under existing
conditions, and to use reasonable care to avoid an accident (
1A NY PJI3d 2:77 ; see also O'Hearn v O'Hearn
The parties provide two widely divergent accounts of the accident which injured
Claimant on February 18, 2000 although all accounts agree, and the Court so
finds, that the Defendant's vehicle
strike or otherwise come into contact with Claimant or the
snowmobile she was operating. Claimant perceived what she believed were two
snowmobiles moving towards her as she traveled on what she believed to be, but
was not, the snowmobile trail. Once Claimant realized it was a plow truck
coming towards her, she attempted to move her snowmobile to the left at a slow
rate of speed, staying away from the elevated snowmobile trail. In attempting
this maneuver, Claimant was unable to maintain control of her sled, placed her
foot to the ground and then had the sled roll onto her and pin her in the snow.
In light of the conflicting testimony, and crediting Claimant's version of the
events in their entirety
, including that
Johnson was exceeding the speed limit and failed to maintain control of his
truck, the Court cannot conclude that such negligence was a proximate cause of
Claimant's injuries. Defendant's vehicle was lawfully upon the roadway at the
time of the accident and did
come to a stop without striking Claimant's
overturned snowmobile. Rather, it was Claimant's actions (being on the road or
lower level as opposed to the snowmobile trail [higher level], continuing to
approach the oncoming lights, her inability to control her sled, failing to pass
to the right and her placing her foot onto the ground) that were the sole
proximate cause of her injuries (see generally Acovangelo v Brundage
271 AD2d 885; see also Rubin v Pecoraro
, 141 AD2d 525 [reasonable
view of the evidence in this case can fairly support the jurors' verdict that
although the appellant was negligent as to speed, control, looking or not
sounding a horn, that negligence was not a substantial factor in causing this
occurrence]). Quite simply, Claimant was unable to safely pass the oncoming
vehicle due to her own
Upon consideration of all the evidence, including listening to the witnesses
testify and observing their demeanor as they did so, the court finds a lack of
credible evidence sufficient to establish that Defendant's negligence either
caused or contributed to Claimant's accident.
Accordingly, Claim No. 105612 shall be and hereby is dismissed.
Let judgment be entered accordingly.
All motions not previously ruled upon are denied.