New York State Court of Claims

New York State Court of Claims

PANICO v. THE STATE OF NEW YORK, #2004-032-127, Claim No. 107328, Motion No. M-68783


Motion for summary judgment is denied where the claimant slipped and fell on an icy patch as she walked to a location where she could retrieve her skis. There are unresolved issues of fact as to the nature and purpose of the area in which she fell, whether claimant's own negligence may have contributed to her accident, her level of knowledge of the sport of skiing, and whether the State had actual or constructive knowledge of the defect.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Gary S. Fish, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 17, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on February 18, 2001, when claimant Jane Panico fell on a patch of ice outside the Discovery Lodge at the Belleayre Mountain Ski Center, which is owned and operated by defendant State of New York. The claim alleges that this accident occurred on a pedestrian walkway, along which she was walking, intending to go to the locker room within the Lodge. Discovery in this action is complete, and defendant now moves for summary judgment dismissing the claim.

According to her testimony at the examination before trial (Cagino affirmation, Exhibit A), claimant, who was 55 at the time of the accident, had been skiing since 1975 but participated in the sport only occasionally, having skied approximately two times in the five years prior to this accident. February 17, 2001, the previous day to the accident, she took a two hour private lesson in the morning, after which she skied until dark. She walked from the parking lot and took a route that was adjacent to the lodge but did not go in. At the deposition, claimant identified the area in which she fell as a slanting area of land to the side and rear of the lodge (Cagino affirmation, Exhibit A) that had to be traversed in order to reach a set of three stairs that led down into the locker area where her skis were stored. She stated that she was walking along at a natural gait when her right foot slipped as she encountered a sheet of ice that was covered by the snow. She fell down, with her right arm breaking the fall, and began to scream. The ski patrol came to her assistance quickly but they were unable to get her into the sled, because of the pressure that was put on her arm. Her husband was able to help her stand and walk slowly to the First Aid station on the other side of the Lodge. While at the station she gave a statement which was recorded in the Accident Report (id., Exhibit C). She stated, "I slipped on the ice and landed flat hitting my elbow."

Counsel for defendant has also provided the Court with the affidavit of Joseph K. Strauss, the Ski Patrol Director at Belleayre Mountain Ski Center (id., Exhibit D). After reviewing the accident report and the photograph in which claimant identified the area in which she fell, he stated that this location was not a pedestrian walkway but, "part of the skiable terrain of the mountain" (Strauss affidavit, ¶ 6). In this area, skiers and snowboarders travel to and from the ski racks that are set up by the lodge. The area must be skiable because otherwise it would cause damage to the skis and snowboards and create a hazard (id., ¶ 7). According to Mr. Strauss, "[i]cy spots are a natural and inherent part of a ski resort" (id., ¶8) and can develop in almost any area along the mountain. He stated that the ski center had opened at 8:00 A.M. on the day of the accident and that, to his knowledge, no one gave notice of an icy spot at the location in question either the day before, February 17, or on the morning of February 18 before 10:52 A.M.

Defendant argues that since the area in which claimant fell was an area in which skiing took place, rather than a pedestrian walkway, claimant had assumed the risks associated with downhill skiing when she entered that area (Fabris v Town of Thompson, 192 AD2d 1045). These risks include the presence of icy patches (see, General Obligations Law §18-101). Alternatively, defendant asserts that the State had no notice of the icy spot on which claimant fell and, consequently, no reasonable time in which to address any danger that it posed. Claimant, on the other hand, asserts that she was largely unfamiliar with the sport of skiing, that the doctrine of assumption of risk is inapplicable to this situation, and that the State had constructive notice that icy spots formed in this area under certain meteorological conditions.
Defendant's 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). This duty requires the defendant 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).

In order for liability to be imposed, the landowner either must have created the dangerous or defective condition or must otherwise have actual or constructive notice of it (Batiancela v Staten Island Mall, 189 AD2d 743; Browne v Big V Supermarkets, Inc., 188 AD2d 798). To constitute constructive notice, the defect had to have been visible and apparent and it must have existed for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837). Liability will result only if a consideration of the particular facts and circumstances leads to the conclusion that the defect posed an unreasonable risk of harm and possessed the characteristics of a trap or nuisance (Maloid v New York State Elec. & Gas Corp., 257 AD2d 712 [3d Dept 1999]) or that it was so out of character with the surroundings as to be a foreseeable cause of harm (Tripoli v State of New York, 72 AD2d 823 [3d Dept 1979]). A landowner can be held negligent in failing to announce, draw attention to, or properly warn of changes in a certain location that increase the risk of harm posed to persons familiar with the area (Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605 [3d Dept 2003]), but at the same time, the injured party may be held entirely or partially responsible if he or she failed to use reasonable care to observe the surroundings to see what was there to be seen and failed to use such care to avoid injury as an ordinarily prudent person would have done in the circumstances (id., McGraw v Ranieri, 202 AD2d 725 [3d Dept 1994]).

Assumption of the risk that is inherent in certain activity, most commonly considered in connection with sporting events, no longer serves as an absolute bar to recovery (CPLR 1411). Instead, it affects the standard to which the landowner will be held (Turcotte v Fell, 68 NY2d 432, 439 [1986]). It is necessary, therefore, for the Court to determine the injured party's "knowledge of the injury-causing defect" and his or her "appreciation of the resultant risk" (Maddox v City of New York, 66 NY2d 270, 278 [1985]). Such a determination is not made in a vacuum "against the background of the skill and experience of the particular plaintiff" (id.).

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 [Sup Ct, NY County, 2000], citing to Morgan v State of New York, 90 NY2d 471, supra).
It is evident when one considers the applicable law that the instant case is not appropriate for resolution by way of a motion for summary judgment. Summary judgment is a drastic remedy that should only be granted when there are no outstanding issues of material fact (Redcross v Aetna Cas. & Sur. Co., 260 AD2d 908, 913-914 [3d Dept 1999], citing to Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The Court's task is issue finding, not issue determination, and before judgment can be granted it must be clearly ascertained that there are no triable issues of fact outstanding (Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002], citing to Matter of Suffolk County Dept. of Soc. Servs. v James M., 83 NY2d 178, 182 [1994] and Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The Court's function in deciding a motion for summary judgment is to determine if any issues of fact exist. In order to do this, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]). The moving party must make a prima facie showing of entitlement to judgment as a matter of law, proffering sufficient evidence, in admissible form, to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

Here there are a number of outstanding issues of fact that must be resolved at trial, with that resolution being based, to some degree, on the Court's assessment of the witness' credibility (see, Goff v Clarke, 302 AD2d 725, 727 [3d Dept 2003]; Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435 [3d Dept 2003] [Credibility issues cannot be resolved on a motion for summary judgment]). Factual issues that need to be resolved include whether the area in which claimant fell was intended to be used by persons on skis only or by those persons and others who would be walking over the ground and using the steps. Despite Mr. Strauss' conclusory statement that the area was part of the skiable terrain and not a pedestrian walkway, if skiers had to cross this area and go down the steps to get their skis, then it had to be contemplated that pedestrians would be walking along the path. The intended purpose of the area will affect the State's duty toward those using that area.

Also unknown with any specificity is the level of claimant's knowledge of the sport of skiing. Going skiing the same number of times can result in differing levels of knowledge in participants. It is claimant's personal knowledge and her awareness of specific risks that must be determined, so that the Court can say whether she appreciated the specific risk involved. Finally, the questions of whether the State had, or should have had, notice of the icy patch, together with time in which to spread sand or take other curative measures, and whether, and to what extent, claimant's own actions were a proximate cause of her injuries, are factual inquiries that cannot be resolved on the papers submitted on this motion.

Defendant's motion is denied.

December 17, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for summary judgment dismissing the claim:

1. Notice of Motion and Supporting Affirmation of Paul F. Cagino, Esq., AAG, with annexed Affidavit of Joseph Strauss and annexed Exhibits;

2. Memorandum of Law in Opposition of Gary S. Fish, Esq., with annexed Exhibits;

Filed papers: Claim; Answer