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
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
were already in the gondola, but all
three jumped out and tried to help him.
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
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,
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 (
, 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 (
, Exhibit B), but because the gondola moved so slowly at that
location, they very rarely had to stop the car during winter
Ms. Taylor acknowledged that the
gondola would probably be stopped if someone fell directly in its path (Tr,
The platform on which skiers stood to get into the gondolas was constructed of
treated wood and covered by rubber mats (
, 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
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.
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 (
, 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
, 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).
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
, 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
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