New York State Court of Claims

New York State Court of Claims

BAKER v. THE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY and THE STATE OF NEW YORK, #2004-032-504, Claim No. 103926


Synopsis


A claimant who fell at the gondola loading platform at Whiteface Mountain Ski Center was not credible when he testified that he was dragged for eight to ten feet along the platform and suffered significant injury.


Case Information

UID:
2004-032-504
Claimant(s):
DOUGLAS A. BAKER
Claimant short name:
BAKER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103926
Motion number(s):

Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Hopkins & Higgins, Esqs.By: Louis H. Higgins, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Frederick H. McGown, III, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
March 31, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant Douglas A. Baker ("claimant") testified that he was injured when he fell on the loading platform of a gondola at Whiteface Mountain Ski Center ("Whiteface") when his foot caught between the gondola and the platform. He stated that he was dragged, screaming, for approximately ten feet before he managed to extricate his foot. He maintains that defendant is liable for his resultant injuries because there was no protective, non-skid matting at the location where he was standing and because the lift attendant did not stop the forward movement of the gondola after he fell. Following a trial and a careful review of all testimony and exhibits, the Court concludes that claimant's account is not credible and that, while he fell briefly as he attempted to board the gondola, he suffered no significant injury. Judgment is entered dismissing the claim.
On December 31, 1999, claimant went to Whiteface with other members of his ski club. He considered himself to be an "expert" skier and had approximately thirteen years' experience in the sport. He skied for some time on the day in question, on one occasion making use of a newly installed gondola that was later involved in his accident.

At approximately 2:30 P.M., he was again standing in line waiting to enter the gondola.

Claimant testified that he was the last person in line and, because the lifts were busy that day, eight people boarded each gondola (Tr, 24). He attempted to get on the gondola in the same fashion as he had done previously that day: placing his skis in the rack provided, stepping up with his left foot, and then bringing up his right foot. "[A]s I went to put weight on my right foot, my right foot slipped on the wood, there was no rubber matting, and it slipped and it lodged under between the platform and the gondola car" (Tr, 13). He stated that he was dragged for approximately ten feet, screaming for help and for the gondola to be stopped. He believed that he screamed for the lift to be stopped at least four or five times, "and I can scream pretty loud" (Tr, 23-24). Claimant stated that, after being dragged for a distance, "I was able to dislodge my foot on my own after severely twisting my knee and ankle and was able to escape any further serious injury" (Tr, 14). Two ski patrollers and a friend of claimant's from his ski club, Steve Austin,[1] were already in the gondola, but all three jumped out and tried to help him.[2] At exactly the same time, however, he was able to dislodge his foot himself (Tr, 24). The gondola did not stop and continued up the mountain without him and the three others.
Claimant stated that his knee and ankle were throbbing at that point, and they hurt when he tried to put weight on them. When the ski patrollers asked if he wanted to go to the first aid station, however, he indicated that he would rather go to the top of the mountain since his skis had already been transported there on the gondola. According to claimant, all four of them traveled up the mountain on the next gondola car. At the top, all of their skis were being held (claimant did not indicate by whom). Although claimant was still feeling pain, he did not want the embarrassment of going down the mountain on a stretcher, so he put on his skis and went down a very easy slope, with the two ski patrollers and his friend following him (Tr, 26).

Claimant stated that he felt pain and throbbing the whole time he was skiing down the mountain, so he immediately went inside the base lodge and explained what had happened. He was referred to a Mr. Rand, who had him fill out a description of the accident on an incident report (Exhibit 14). The portion that claimant wrote stated, "I slipped on the treated wood getting onto the gondola. My foot was lodged between the gondola car [and] the platform - dragged 10 feet." Mr. Rand also called someone in to evaluate claimant's knee and ankle. When he was asked if he wanted to go to the hospital, claimant declined because he could still put some weight on his leg. When he was examined, according to the notes on the incident report, both mobility and flexibility of the knee and ankle were determined to be good. He was advised to put ice on the joints and to get an x-ray if they were still swollen the following morning. While speaking with Mr. Rand, claimant also put in a claim for some damage to his new ski suit. The damaged area is circled on Exhibit G and depicts two small pinhole tears on one of the legs of the ski suit (Tr, 42-43). Claimant testified that because his knee was painful, he did not ski anymore that day or during the rest of his vacation. A day or two after he returned home, he went to his own doctor (Tr, 29).

In order to allow the gondola to swing in and pick up passengers, the loading platform at the base station has a circular edge. The platform is made of treated wood, and the rubberized mats which provide a non-slip surface on top of it are rectangular. Although it appears from the pictures that the edge of the mats meets precisely with the circular edge of most of the platform (
see, Exhibits 3, A), there is one location where the rectangular mats are placed together in a "saw tooth" fashion, leaving two large and one small triangle of bare wood visible (Exhibit 2). Also visible at this location are at least five stanchions, made of old tires with red slalom poles stuck in the opening. One of these stanchions is nearly touching the point of the largest bare wood triangle.
Claimant testified that it was right in this area, "the areas of the exposed platform that don't have the protective matting," where he fell (Tr, 15, 18). Claimant then circled this area on the photograph as depicting the place where he had been standing as he attempted to get on the gondola (Exhibit 2; Tr, 20). His right foot, he stated, must have been on one of the exposed triangular patches. On cross-examination he observed that one of the stanchions ("pole stands") was directly behind one of the large triangles of exposed wood. He again stated that he had been the last person in line to get onto the gondola "and that's where approximately the gondola would have been when I got on" (Tr, 36, 38). At the same time, however, claimant stated that the gondola car came "from the left" as it entered the loading area (Tr, 37).

Deborah Taylor, the Whiteface ski lift operations supervisor employed by the Olympic Regional Development Authority ("ORDA"), testified for claimant. She stated that the lift area was monitored at all times and that attendants were trained to observe each passenger get on and off the gondola. There is a stop button located on the loading platform (
see, Exhibit B), but because the gondola moved so slowly at that location, they very rarely had to stop the car during winter months.[3] Ms. Taylor acknowledged that the gondola would probably be stopped if someone fell directly in its path (Tr, 55).
The platform on which skiers stood to get into the gondolas was constructed of treated wood and covered by rubber mats (
see, Exhibits A, B). At night, according to Ms. Taylor, the mats are removed so that accumulated snow and ice can be removed (Tr, 65; Exhibits 7, 8). The gondola car moves along the platform in a counterclockwise direction (in other words, from left to right, if viewed by someone standing at the base looking up the mountain) (Tr, 68).
When asked about the portion of the picture in Exhibit 2 that claimant had identified as the place he had been standing, Ms. Taylor stated that it would not have been possible for him to be at that location (Tr, 72). This picture, she indicated, shows the beginning of the loading platform (the left side as one faces up the mountain), not the end of the platform (the right side) where the last passenger (in this case the claimant) would get on. She is certain of the location, she stated, because the stanchions are present only on the left side of the loading area, not on the right side (Tr, 70). The area depicted in the picture, where there are three triangles of bare wood, is before the point where the first people begin boarding the gondola (Tr, 72).

Peter O. Richer, testifying for defendant, stated that he was a voluntary ski patroller at Whiteface in December 1999. He agreed with Ms. Taylor that the gondola car would arrive first at the left side of the loading dock, and passengers would then board as it slowly moved its way to the right side, in a counterclockwise direction (Tr, 83, 87). On the afternoon in question, Mr. Richer had just stepped into the gondola and was looking for a seat when he heard a "thud" behind him. He turned around and observed that someone had fallen. Mr. Richer stepped back out of the gondola to help this person but claimant was already standing up again. Mr. Richer asked him if he was okay, and he said that he was. Mr. Richer then stepped back into the gondola and went up the mountain (Tr, 84). He and Rick Wood, another ski patrolman who had been with him, retrieved claimant's skis from the gondola in which they had ridden and waited for him to arrive at the top of the mountain in a later car. When he did arrive, they gave him his skis and again asked if he was okay. According to Mr. Richer, claimant said that he was okay but complained about tearing his ski suit (Tr, 85). Since he did not appear to require medical attention and did not ask for any, Mr. Richer stated "we went our separate ways" (Tr, 85). Mr. Richer did not ski down the mountain with claimant. He stated, in fact, that he has never skied down the mountain to accompany someone to the first aid station (Tr, 91). There was a first aid station at the top base where any injuries could have been seen to, and if there was any question about a skier's physical condition, he would have been transported down by sled or in the gondola, rather than allowed to ski down himself.

Mr. Richer was later asked to prepare a report and draw a diagram of the incident (Exhibit 1).
He indicated by numbers 1) where claimant fell, 2) where he got out of the car and saw claimant's foot under the gondola, 3) where he asked claimant if he was okay, and 4) where he got back into the car. At his deposition, Mr. Richer had also drawn two blue triangles on the diagram to indicate where the areas of bare wood depicted in Exhibit 2 were located. These triangles were located significantly before, or to the left, of the four numbers.
On cross-examination, Mr. Richer was asked what he heard during this event. He stated he did not recall hearing claimant cry out, but that he had heard a "slipping noise" of a foot slipping and landing on the deck (Tr, 94, 96). When he turned around in response to that noise, he saw claimant in a semi-sitting position. Mr. Richer stepped out of the gondola to help him "and by the time I got out, which was a split second, he was standing" (Tr, 97).

Richard Wood, the other volunteer ski patroller, testified that he was already sitting in the gondola, facing the mountain and the gondola doorway, when he saw an individual "disappear" from the opening (Tr, 103). He heard no sound, either of the fall or of any noise made by the individual. Mr. Wood then turned to the right and saw that the person was back on his feet, with his hands in the air. At that point his companion, Mr. Richer, got back into the gondola car, and it proceeded up the mountain. At the top, he and Mr. Richer retrieved claimant's skis and then they waited for him to arrive in a later gondola. They again asked claimant if he was okay, but according to Mr. Wood, "[h]is major indication was that he had a tear in his new ski suit" (Tr, 104).

Mr. Wood, like Mr. Richer, stated unequivocally that he did not ski down the mountain with claimant (Tr, 105). When asked to write a report about the incident (Exhibit 11), Mr. Wood indicated that the person had slipped and "somehow caught in the underside of the car" but was then able to stand up and get onto another gondola. He estimated that the "length of entanglement" was six to eight feet. Although he did not know precisely what had happened, he said that it seemed that the tip of claimant's boot had gotten caught as he tried to step into the car.

Jay Rand, general manager of Whiteface, first learned of the incident when claimant came to his office that day to make a claim of $1,500 for damage to his ski suit (
Tr, 111). Mr. Rand asked claimant if he was injured in any way "and he said he was not" (Tr, 111). Despite that statement, Mr. Rand requested that he be checked out by the director of the ski patrol, Pat Doyle. An incident report was then completed by claimant and Pat Doyle (Exhibit 14), and Mr. Rand wrote a memorandum outlining the events (Exhibit 13). The account given by claimant to Mr. Rand is similar to his testimony at trial, in that he claimed to have slipped on an area of exposed wood.
When asked to look at Exhibit 2, which depicts the triangular areas of bare wood, Mr. Rand stated that it would be almost impossible for anyone, even the first person to board the gondola to be standing at that location. The stanchions are placed at that spot to divide the loading platform from an unloading area for gondola passengers who chose not to ski down the mountain and return by way of the gondola. It is necessary for them to get out of the car before those going to the top of the mountain board the gondola (Tr, 116). In any event, the last passenger of a group to board a gondola would of necessity be located on the other end, the right side, of the loading platform.

The deposition transcript of Jonathan A. Bruce (Exhibit J) was placed into evidence by defendant.[4]
Although no longer an ORDA employee, in December 1999 Mr. Bruce worked as an attendant at the gondola and other lifts at Whiteface. He began work on December 9, 1999 and was on duty at the base loading platform on the day in question.
With respect to the area of the platform where there were triangles of exposed wood, Mr. Bruce testified that that was not a boarding area. This section is roped off and there is a sign saying not to board at that location (
id., p 16). He explained further that people were not allowed to get onto the gondola until the curved piece of rail at the center of the car is on the straight part of the rail (id., 17). At the location of the bare wood triangles, the rail is curved (see, Exhibit 2). The same is true of the area of the loading dock on the far right depicted in Exhibits 4 and 6. Although the mats have been taken up in those pictures, markings on the wood indicate that there are some triangular areas that had not been covered by mats. In Exhibit 6, it is possible to see that the rail is curved, just as it is in Exhibit 2 although in the opposite direction. Mr. Baker testified that at this point along the loading platform, when the gondola began going around the curved rail, the passengers would already be in the gondola and loading would be complete (id., pp 20-21).
As to the incident that occurred on December 31, 1999
, Mr. Bruce stated that he had not seen claimant fall but looked around in time to observe him being helped to his feet by a ski patrolman (id., p 10). At the time he was standing in the middle of the platform, near the shut off switch, about six or seven feet away from the fallen passenger. The only thing he heard in connection with the incident was the ski patrolman asking the passenger if he was okay (id., p 24). When asked why he did not stop the gondola, Mr. Bruce replied, "At that point, I didn't see any harm in letting it go, because nobody was being pushed or anything and it didn't [seem] to be important or serious enough to stop the car" (id., p 25).
Applicable Law and Discussion
As former Judge John L. Bell observed when granting claimant's motion to late file this claim, "[a]nalysis of an accident at a ski center begins with the Safety in Skiing Code (L 1988, ch 711 §1; General Obligations Law, art 18)," and no part of that statutory scheme specifically addresses the duty of lift attendants regarding a potential emergency stop (
Baker v State of New York, UID 2001-007-082, Motion No. M-62868, Jan. 26, 2001, Bell, J.). The Code further provides that any duty not specifically addressed in the statutes will continue to be governed by the common law standard of reasonable care under the prevailing circumstances (id., citing General Obligations Law §18-107).
The critical issue in this case, however, is determining precisely what those "prevailing circumstances" were. All of the witnesses except claimant present a consistent, undramatic account of an individual who briefly fell on the loading platform as he attempted to board the gondola at Whiteface. Three eye witnesses, who because of their employment had reason to pay attention to such events, deny hearing claimant say anything, much less scream. They stated that he was back on his feet in the very short period of time that it took for Mr. Richer to step back out of the gondola car and for Mr. Wood to turn his head to look out the gondola car's window. After that incident, according to the two ski patrolmen, they continued up to the top of the mountain in that same gondola, retrieved claimant's skis (which had already been loaded), and waited for claimant to arrive in a later car, to give him his skis and to inquire again whether he had been hurt. When he arrived, claimant told them that he was fine physically but was upset about a tear in his new ski suit. As there appeared to be no need for medical attention, they parted ways and claimant, perhaps accompanied by his friend Steve Austin, skied down the mountain. After reaching the bottom, claimant went to Mr. Rand for the primary purpose of filing a claim for the damage to his new ski suit.

In contrast to that rather straightforward account, claimant's rendition of events is less plausible and in a certain respect simply illogical. According to claimant, after his foot was caught under the gondola and he was being dragged along the platform, he was screaming, loudly, for someone to stop the car. At the same time, while his foot was caught near the gondola's doorway, three people - the two ski patrollers and claimant's friend – managed to move out of the gondola and back onto the platform. Somehow this was accomplished without stepping on claimant or one another and causing further damage. Claimant then managed to extricate himself at almost the same moment that they appeared to help him. According to claimant's account, although he was in considerable pain, he elected to get on a later gondola and travel to the top of the mountain. When claimant and the other three individuals, two of whom deny traveling with him, arrived at the top (where some unknown persons had known to take the four pair of skis from the first gondola and hold them), claimant then chose and was allowed to ski down the mountain despite his continued pain and tenderness in his leg. He chose to do this, claimant testified, to avoid the "embarrassment" of being taken down the mountain on a sled. This overlooks the most reasonable way to return to the bottom if he were truly injured: making the trip down in the same fashion he had come up the mountain, by riding in a gondola. Claimant then stated that he skied down the mountain very, very slowly, accompanied by the two patrollers and his friend all the way. Again, this statement is flatly contradicted by the testimony of the ski patrollers, who said that they parted company with claimant at the top base, after he assured them that he was unhurt.

Even if the Court had not had the opportunity to observe the witnesses' demeanor and evaluate the spontaneity of their responses, claimant's account is unreasonable on its face. If he were as badly hurt as he testified at trial, it is far more likely that he would have asked his friend to fetch his skis and claimant could have gone immediately either to his lodging or to seek medical help. Skiing down the mountain at that point, in what he described as great pain, was not only foolhardy but it was also something that the ski patrolmen stated they would not have allowed him to do if he had been seriously injured.

In addition to the implausibility of claimant's account of the events surrounding the accident, there is even greater difficulty accepting his statements regarding its cause. Claimant asserts that he slipped because his right foot was on bare wood rather than the skid-resistant matting that covered most of the loading platform. On several occasions, he unequivocally identified the triangular shaped areas of bare wood located near the stanchions, that are shown in Exhibit 2, as the place that he was standing when he fell. This is simply not possible, for that location is on the far left "corner" of the platform, where the rail is curved and before boarding is allowed. In any event, the left side of the platform is a far distance from where the last person to get on a gondola would be boarding. In addition, even if the photographs in Exhibits 4 and 6 indicate that there are other triangular areas where there are no mat covers on the opposite far right side of the platform[5]
, the testimony of employees familiar with the operation of the gondola establish, to the Court's satisfaction, that no loading takes place that far to the right. Certainly if claimant slipped at that location there could not have been time or room for Mr. Richer to step out, assure himself that claimant was not significantly injured, and then get back into the gondola, or for Mr. Richer, Mr. Wood and Mr. Austin (according to claimant) to leave the gondola, managing somehow not to injure claimant in the process. Although reluctant to do so, the Court can only conclude that claimant's account of events simply is not true.
The weight of the credible evidence fails to establish that there was any negligence on the part of the Whiteface Mountain Ski Center, either in having bare wood in areas where passengers might stand while boarding the gondola or in failing to stop the gondola when one of the skiers fell but immediately stood up again. There being no negligence, defendant cannot be liable for any injury that claimant may have suffered when he fell on the loading platform.

Consequently, the claim is dismissed and the Chief Clerk is directed to enter judgment accordingly.



March 31, 2004
Albany, New York

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




[1]Claimant gave no explanation as to why he failed to call the only other person, Steve Austin, who could have testified as to his recollection of these events. A negative inference may be drawn when a party fails to call a witness who is under the control of or available to that party, who possesses information on a material issue, and who would be expected to provide noncumulative testimony in favor of that party (Smith v Lebanon Val. Auto Racing, 194 AD2d 946, 949 [3d Dept 1993]; Leven v Tallis Dept. Store, 178 AD2d 466 [2nd Dept 1991]). In the instant case, however, defendant has not asked that such an inference be drawn, and it is inappropriate for the Court to raise the matter sua sponte at the time of trial (Spoto v S.D.R. Constr., Inc., 226 AD2d 202 [1st Dept 1996]).
[2]Although claimant was last in line and eight people were boarding each gondola, there were only three people already in the gondola claimant attempted to board (Tr, 24).
[3] In summer months the situation is different as many handicapped persons or other special-needs patrons ride on the gondola for a view of the mountain and surrounding area.
[4] Mr. Bruce's current employer confirmed that he was placed on active military duty in May 2003 and has not yet returned from that assignment (Exhibit H).
[5] Although the matting was removed when these pictures were taken, the surface where the mats are laid have a unique pattern imposed on it. Close to the edge of the platform, it appears that there may be one or two triangular spots that do not contain this pattern.