New York State Court of Claims

New York State Court of Claims

ALVANSON v. STATE OF NEW YORK and NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, #2004-032-005, Claim No. 104560, Motion No. M-67132


Synopsis


Case Information

UID:
2004-032-005
Claimant(s):
KRISTEN ALVANSON and WILLIAM ALVANSON
Claimant short name:
ALVANSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104560
Motion number(s):
M-67132
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Howard R. Sanders, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Dennis M. Acton, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
February 17, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This personal injury claim arose on August 13, 2000, at approximately 2:30 P.M., on the "Summer Storm" bobsled run at Mt. Van Hoevenberg, a feature that is part of the Olympic Sports Complex at Lake Placid, New York. The summer bobsled run is operated by defendant Olympic Regional Development Authority (ORDA) under the auspices of the defendant State of New York (Public Authorities Law §2622). Examinations before trial have been held in this action, and the instant motion for partial summary judgment brought by claimants is based on the testimony given at those depositions.
FACTS

Claimant Kristen Alvanson[1] and her husband were vacationing in the Adirondacks when they decided to go into the Olympic Sports Complex (Groubert Affirmation, Exhibit C [EBT transcript of Kristen Alvanson]). They were aware from tourist brochures that a bobsled run was operated on the premises, and they were interested in trying it. They knew little about the sport of bobsledding, however, other than information gained from watching the Olympics on television. They bought tickets for the ride at the ticket booth and signed a waiver. They were directed to put on helmets and then entered the sled with two other tourists. The four tourists sat in the middle between two other individuals, who were in the front and back positions and whom they assumed to be ORDA personnel. Claimant occupied the position immediately in front of the employee at the rear location.

The bobsled was equipped with seat belts, which claimant used, and she and the other riders were instructed to keep their hands inside the sled at all times. Claimant described the ride as being very fast and jerky and the final turn as being very aggressive and sharp. At some point during the ride, she told her husband that she had been hurt, saying "I'm injured. I think I broke my back." She also told this to the employee sitting behind her and he allowed her to lean back on him until after the ride had stopped and she could be moved safely. It was later determined that claimant had suffered a fracture of the T11 vertebrae in the center of her back.

Claimants do not contend that anything unusual or out of the ordinary occurred on this bobsled run. The State's negligence, it is alleged, was in allowing members of the public to participate in an inherently dangerous activity without providing suitable warning of the actual dangers that could be encountered. Defendants maintain that individuals who voluntarily participate in sporting and amusement activities consent to and assume risks that are inherent in such activities.
APPLICABLE LAW
Defendants' duty in this situation is the common law, nondelegable duty of a landowner to maintain premises onto which it invites the public in a reasonably safe condition (Basso v Miller, 40 NY2d 233 [1976]; Morgan v State of New York, 229 AD2d 737, 738 [3d Dept 1996], affd 90 NY2d 471 [Mt. Van Hoevenberg bobsled run]). This duty requires the defendants to "take reasonable steps to prevent those accidents which may foreseeably occur as a result of a dangerous condition on its property" (id, at 739).

Defendants argue that claimant voluntarily assumed the inherent risks in the activity in which she was participating. Assumption of the risk is not an absolute defense, however, but affects the standard to which the landowner will be held (Turcotte v Fell, 68 NY2d 432, 439[1986]). Assumption of the risk requires both "knowledge of the injury-causing defect" and "appreciation of the resultant risk," and a person's awareness of the risk is to be determined not in a vacuum but "against the background of the skill and experience of the particular plaintiff" (Maddox v City of New York, 66 NY2d 270, 278 [1985]).

The landowner's duty in such situations is to "make the conditions as safe as they appear to be," so that the participants know the danger is present, appreciate the risk of injury, and therefore consent to assume those risks (Morgan v State of New York, 90 NY2d 471, 484 citing to Turcotte v Fell, 68 NY2d 432, supra; see also, Giordano v Shanty Hollow Corp., 209 AD2d 760 [3d Dept 1994], lv denied 85 NY2d 802). As a matter of law, an individual cannot assume a risk of which he or she is unaware (Beroutsos v Six Flags Theme Park, Inc.,185 Misc 2d 557 [NY Sup 2000], citing to Morgan v State of New York, 90 NY2d 471, supra).

Defendants rely on a series of cases dealing with persons actively participating in sporting activities. In Morgan (supra), a professional bobsledder was injured on the Mt. Van Hoevenberg run when the sled went through a recently constructed 20 foot opening on the outrun. No liability was imposed on the State in that instance, because the claimant, a professional bobsledder with over twenty years experience, fully appreciated the dangers of the sport, was familiar with that particular bobsled run, and was able to see the 20 foot opening and assess any additional risk it might pose. The cause of the accident was "the result of dangers and calculations inherent in a highly dangerous sport and not the result of any demonstrable defect in the design of the bobsled course itself" (90 NY2d at 486). Similarly, in Simoneau v State of New York (248 AD2d 865 [3d Dept 1998]), an experienced skier, who fell on a guide rail after being struck by a chair lift, was said to have been injured by a risk that was inherent in the sport and open and obvious, and thus to have assumed such risks.

The facts giving rise to this claim, however, are more closely akin to those situations in which ordinary citizens ride on amusement rides and participate in other activities made available to the general public, rather than to only those knowledgable in a sport. As another judge of this Court has noted, "The summer bobsled ride at Mt. Van Hoevenberg was intended to appeal to members of the public. It was not limited to individuals with experience in bobsledding." (Leonard v State of New York, Claim No. 95326, filed Aug. 6, 1999, Bell, J.).[2]

The same standard is applicable in these situations: injured parties who know the danger is present and appreciate the risk of injury are deemed to have voluntarily assumed those risks (Morgan v State of New York, 90 NY2d 471, 484, supra, citing to Turcotte v Fell, 68 NY2d 432, supra). In these amusement park situations, however, the participant's knowledge of and appreciation for the risks is typically much more limited.

In Beroutsos v Six Flags Theme Park, Inc. (185 Misc 2d 557, supra), which is factually similar to the instant claim, a generally healthy individual took a roller coaster ride and allegedly suffered back and neck injuries caused by the ride. Although there were specific, written warnings against the ride being taken by pregnant women or those with existing back or neck conditions, the court denied summary judgment for defendant, holding that it was a question of fact for the jury whether the warnings adequately established that there was a "risk of ensuing back and neck injuries in healthy individuals" or whether such injuries were a commonly perceived risk, along with the more usual "dizziness, nausea, vomiting, and, for some, regret" (id, at 558, 559).

Often participants in these activities are required to sign a waiver releasing the owner or operator of a sporting or amusement facility from all liability, and in the instant case ORDA required claimant to execute such a waiver prior to going on the summer bobsled run. General Obligations Law §5-326 was enacted in 1976 (L.1976, c. 414, § 1) to prevent the owner or operator of a "pool, gymnasium, place of amusement or recreation, or similar establishment" from enforcing such blanket exculpatory agreements when they attempt to exempt such owner or operator from all liability for any harm, even harm that results from their negligence. Where the person who is injured has paid a fee or provided other compensation for use of these types of facilities, such exculpatory waivers are "void as against public policy and wholly unenforceable." DISCUSSION

In support of their motion, claimants have submitted medical incident reports relating to twenty-one incidents of reported back injury suffered by persons going on the bobsled run during summer months (Groubert Affirmation, Exhibit N). The first of these incidents is dated June 21, 1998. All of the incidents designate the "finish curve" as the point at which the individual was injured and all report the injury as pain in the back, usually the lower lumbar area. There is no information on these reports about whether these individuals had any prior medical problems in their back, whether anything unusual occurred on the rides, or for the most part whether the injury was mild and transitory or significant and permanent. This evidence is sufficient, however, to establish that the State, at least, was on notice that one of the risks of riding the "Summer Storm" was injury to the back.

There appears to be a question as to whether the waiver that claimant admittedly signed prior to getting into the bobsled affects the State's potential liability for her injuries. The "Responsibilities of User and Waiver" form that was signed by claimant (Acton Memorandum, Exhibit A) recites that it applies to the bobsled run, in addition to other portions of the Olympic Sports Complex, and provides that the person signing the waiver "expressly acknowledge[s]" the following:
1. USE OF THE SPORTS FACILITIES IS A HAZARDOUS ACTIVITY WHICH COULD RESULT IN PERSONAL INJURY OR DAMAGE. I acknowledge that use of the Sports Facilities is dangerous and I knowingly assume all risks of personal injury or damage I may suffer by using the Sports Facilities. I further acknowledge that since I am using the Sports Facilities at my own risk, the Olympic Regional Development Authority bears no responsibility of any nature for any personal injury, damage or loss to my person or property arising out of or resulting from my visit to the Sports Facilities.
Other numbered statements require the person signing to: (a) certify that she or he is physically fit and does not suffer from any medical condition that will be affected by use of the facilities;

(b) agree "to observe, read and abide by any and all notices" posted; and (c) to grant permission to ORDA to use photographs of the person's use of the facilities. The portion of the waiver form directly above the signature reads as follows:
5. I acknowledge that the use of the Sports Facilities is a hazardous activity and that I could suffer personal injury, which may be serious, as a user.

6. I hereby expressly acknowledge my understanding and acceptance of the foregoing, and agree to assume all the risks of any personal injuries whatsoever which I may incur during my use of the Sports Facilities on the following date (or dates):

I DO FURTHER WAIVE any claim for damages which I may or might have by reason of injuries sustained by me in such use of the Sports facilities, and do hereby release and forever discharge the Olympic Regional Development Authority, the Town of North Elba, the state of New York, and the officers and employees thereof from any claim for damages against them or any of them which I may or might have by reason of injuries sustained in the use of the Sports Facilities, or for any other damages sustained in the use thereof.
The Court agrees with claimant that this waiver is, on its face, void and unenforceable pursuant to General Obligations Law §5-326. For that law to apply, it is not necessary for the waiver or agreement to specifically enumerate negligence as one of the possible causes of injury or that the injury has to arise from some specific defect in the operation of the sporting facility or equipment. In Meier v Ma-Do Bars, Inc. (106 AD2d 143 [3d Dept 1985]), a document entitled "Liability, Release, Indemnification and Authorization" was executed by a bar patron, who paid a $2.00 fee to ride a mechanical bull that had been installed in the tavern. It does not appear that the injuries were caused by anything other than the inherent risks of this "sporting" activity.[3] Nevertheless, the situation presented in that case was considered to be "a classic example of those situations which the Legislature had in mind when it extended the declaration of public policy in the General Obligations Law to apply to places of amusement and similar establishments" (id, at 145).

There are unresolved material questions of fact, however, as to whether claimant was aware of the particular danger or appreciated the risk of back injury when she elected to go on the Summer Storm ride. As noted above, the precise nature of the State's notice has not been developed, and thus it is impossible to determine at this juncture whether the steps taken by defendant to warn the public of possible dangers was reasonable and gave adequate warning that back injuries might result to people with no prior limitation in that area, nor is there information from which the Court can determine if such back injury is a commonly perceived risk of this recreational activity (see, Beroutsos v Six Flags Theme Park, Inc.,185 Misc 2d 557, supra).

Claimants' motion for summary judgment is granted to the extent that the Court holds that the waiver that was signed is void pursuant to General Obligations Law §5-326[4] and is otherwise denied.



February 17, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on claimants' motion for partial summary judgment in their favor:
1. Notice of Motion and Supporting Affirmation of Jonathan Groubert, Esq., with annexed Exhibits

2. Defendant's Memorandum in Opposition of Dennis M. Acton, Esq., AAG, with annexed Exhibits

3. Reply Affirmation of Howard R. Sanders, Esq., with annexed Exhibit

Filed papers: Claim; Answer



[1]The claim of William Alvanson is derivative in nature and, unless otherwise indicated or required by context, the term "claimant" shall refer to Kristen Alvanson.
[2] In that claim, it was alleged that ORDA officials violated their own rules by failing to make sure that the claimant was secured by a seatbelt. The Court determined that this allegation was not supported by the weight of the evidence.
[3] The Appellate Court noted that it was anticipated that some riders would fall off the bull, because air mattresses were spread on the floor around it and stated that the plaintiff had been thrown from it "under circumstances not material to the issue before us now."
[4] The Court also notes that defendant has withdrawn its affirmative defenses based on arbitration and award, collateral estoppel (Acton memorandum, p. 5).