On December 24, 1998, JoAnn ("claimant") and Mark
traveled with their four children to the Mirror Lake Inn at Lake Placid, New
York, for a skiing vacation at Whiteface Mountain Ski Resort ("Whiteface") (Tr,
11). Claimant had been skiing for more than twenty years and considered herself
an intermediate skier (Tr, 10). She had previously skied in the west (Utah)
where there is more natural snow, the midwest (Ohio), and the northeast
(Vermont, Maine, New Hampshire, Connecticut, and New York) where there is
harder, less fluffy snow (Tr, 16, 38, 39).
On December 25, 1998, the Jamiesons headed to Whiteface Mountain to ski.
Claimant believes that she purchased the tickets and that she was informed of
the general skiing conditions by the ticket vendor (Tr, 15, 43). She did not
recall reading the weather conditions that day (Tr, 45-46). She did not recall
seeing any signs or information in the vicinity of the ticket booth that day
describing a "Skiers' Responsibility Code" nor did she recall seeing any sign
entitled "Warning To Skiers" (Tr, 39-40; Exhibits A, C). After purchasing her
ticket, she affixed it to her jacket and read the back of the ticket which
contained provisions similar to the Skiers' Responsibility Code, although she
did not recall specifically what it said (Tr, 44-45).
The family commenced skiing at 10:00 A.M. on Whiteface, the larger of the two
mountains located at the resort (Tr, 18; Exhibit A). According to claimant,
there were many snowmaking machines on Whiteface, which created a blizzard-like
condition. The trails on Whiteface were very hard-packed snow with an occasional
small patch of ice that she was able to see since the patches appeared worn from
the high traffic (Tr, 19). After the first run of the day, the family purchased
goggles to help them see through the snow from the snow guns (Tr, 19). There was
no natural snow falling; the day began with blue skies and turned cloudy as the
day progressed (Tr, 19, 21). Prior to lunch, some of the family, including
claimant, skied down the Excelsior run on Little Whiteface Mountain with no
difficulties (Tr, 22). Excelsior is the only intermediate
on Little Whiteface Mountain (Tr, 70).
After lunch, the family returned to the Excelsior trail to ski. Claimant rode
the lift up the mountain with her son Daniel, who was then in the eighth grade
(Tr, 24, 108). The other family members were ahead of them on the lift. Claimant
started down the run ahead of Daniel who was behind her and to the right (Tr,
25, 47). The snow was hard-packed as she started down the mountain (Tr, 47). She
testified that as she descended the trail, she had the option of stopping but
elected not to do so (Tr, 50). Claimant was skiing on the left-hand side of the
trail several feet from the edge when she heard a scraping sound and felt ice
under her skis (Tr, 26, 50-51). She recalled snow falling (Tr, 31), but she did
not see the ice since it was white and resembled the rest of the trail (Tr, 26).
As she was upon the ice she noted that it was a massive area resembling snow
that "looked like it was the full width of the run, and then it looked all the
same all the way down" (Tr, 31,36-37). Claimant, who was
to her left, attempted to make a right turn near turn 3 of the trail (Tr, 25,
28). She estimated that she was five to ten feet from the edge of the trail. She
also estimated the trail as 30 to 40 feet wide (Tr, 51, 52). Claimant tried to
dig her left ski into the trail but the ski would not dig into the ice (Tr, 27).
Tragically, she became airborne, struck trees and came to rest against a tree
trunk (Tr, 29-30).
Claimant's son Daniel and the ski patrol
came to her assistance. She was taken via a toboggan to the first-aid station
(Tr, 33). The accident report described the accident as "Fell and went over bank
on turn 3 Excelsior Hit trees" (Exhibit 1). Turn 3, marked on Exhibits F and CC,
is located on upper Excelsior trail (Tr, 405-406). Upper Excelsior is an
internal term for a section of the trail above the Connector trail as delineated
on Exhibit F (Tr, 378-379).
Mark Jamieson testified that he did not recall reviewing the trail conditions
report as his family commenced skiing on December 25, 1998 (Tr, 103). Although a
little confused as to which mountain they first skied on the morning of December
25, 1998, Mr. Jamieson stated that "there was snowmaking going on just about
everywhere we went . . . ." (Tr, 68). The snowmaking "was an irritation . . . ,
it just was a constant semi-impairment of your vision", so that goggles were
necessary (Tr, 69).
After lunch at approximately 1:00 P.M., Mr. Jamieson took the lift up to the
Excelsior trail with his three daughters. He proceeded to ski down the
right-hand side of the Excelsior trail where he encountered an area of icy spots
(Tr, 74). Although Mr. Jamieson recalled snowmaking along the Excelsior trail,
he had no recollection of whether snowmaking was in progress as he traversed the
icy spots (Tr, 79). He stopped skiing and inched his way down the icy spots for
one to two minutes and then continued down the right-hand side of the trail (Tr,
74, 78). He surmised that the width of the icy area was the entire trail based
upon his wife's experience (Tr, 78). Further down the mountain, Mr. Jamieson saw
a person whom he claims was an employee of Whiteface warning people about a
dangerous area because someone had been injured in that vicinity (Tr, 78).
However, this testimony was in direct contrast to Mr. Jamieson's examination
before trial when he testified that he did not ski near this individual, had no
recollection of this individual's exact words, and in fact, the statement was
actually told to him later by a person he could not recall (Tr, 98, 102).
Mr. Jamieson and his three daughters waited at the end of the trail for his
wife and Daniel to appear. Eventually Daniel came down and informed them that
claimant was injured. They went to the first-aid station where they found
claimant. Mr. Jamieson noted that people were being in brought in to the
first-aid station on toboggans fairly routinely (Tr, 82). There was a continuous
flow of injured people (Tr, 83). According to Mr. Jamieson, there was such a
queue for ambulances that claimant had to wait 45 minutes to an hour for an
ambulance to take her to the hospital (Tr, 84-85). However, the ski accident log
for that day indicates that there were eight ski accidents on December 25, 1998
and only two of the injured, one being claimant, were removed by ambulances from
the mountain (Tr, 306-307; Exhibit 4).
Daniel Jamieson testified that on the morning of December 25, 1998, the family
checked the general postings of the ski conditions on the chalkboards at
Whiteface (Tr, 149). Daniel testified that after lunch that day, he rode the
lift up to the Excelsior trail with claimant. The day had turned more cloudy and
the temperature was colder than it had been that morning (Tr, 116). When they
got to the top of the run, claimant started down the run first since Daniel had
to fasten his snowboard. Claimant was 30 feet in front of him, about 15 feet
from the left edge of the trail, traversing down the slope (Tr, 118, 128).
According to Daniel, at some point during one of her traverses, she began to
sideswipe and attempted to catch both of her ski edges into the surface. She
then stabbed the surface "with her left ski, and then she went up on just her
left ski and started to face perpendicular to the mountain. When she went up on
her left ski she turned to face perpendicular to the mountain and then
disappeared over the edge." (Tr, 122).
Daniel skied to the approximate place where his mother had fallen, took off his
snowboard and crawled to the edge of the trail because it was icy (Tr, 123). The
color of the slippery surface was white (Tr, 130). Daniel described the trail
where his mother skied off the mountain as follows: "the whole edge and going
towards about the middle of the trail back about 25, forward about 25 yards, was
ice." (Tr, 127). He could see his mother approximately 40 feet over the edge,
with her skiing paraphernalia scattered and her back to a tree trunk (Tr, 124).
Daniel turned his snowboard upside down, so it would not slide down the mountain
(Tr, 124-125), and then slid down the embankment to reach his mother. Two
individuals stopped and notified the ski patrol, who then removed claimant via a
toboggan. After his mother was taken away, he moved to the right side of the
trail so that he could snowboard down the mountain (Tr, 127, 137).
Daniel testified that a snow gun was in operation at the bottom of turn 3 (Tr,
128), below the area where his mother had fallen (Tr, 132). He observed a plume
of snow reaching the area where his mother slid and remembered the "loud racket"
of the snow gun. There were no snow guns in operation above the accident site
(Tr, 129-130). Daniel also testified that as he followed the toboggan down the
mountain, near the turn below where his mother had fallen, he saw "someone in a
Whiteface jacket that was yelling out cautious, you know, to be cautious about a
certain area where he was standing." (Tr, 131). This person was standing on the
side of the trail without skis (Tr, 135).
Mr. Helge Lien testified as claimants'
Mr. Lien is employed by Robinson Lapina, a forensic engineering firm that
conducts investigations regarding skiing and winter sport safety. He inspected
claimant's skis and found them to be of good quality but noted that they did not
have super sharp edges (Tr, 160). Mr. Lien also inspected turn 3 on the
At the time of his inspection
he believed that there were hydrants for hooking up the snowmaking guns on the
right-hand side of the trail as one proceeds downhill. There is one hydrant for
water and one for air. The hydrants are connected to pipes that usually run
underground. Air and water come out from the hydrants in separate hoses which
connect to a snow gun which is the part of the apparatus where water and
compressed air are mixed and then sprayed into the air (Tr, 166-167).
Mr. Lien testified that snow can be made most effectively when the air is cold
and dry (Tr, 167-168). If the air temperature or humidity increases, then
increasingly wet snow (slush) is made. To prevent this, the flow from the water
hydrant can be adjusted backwards. For example, if the temperature approaches
freezing or about 26 degrees, the air/water ratio must be changed (Tr, 168). If
it is not adjusted, very wet snow, slush or pure water would fall on the slopes.
If the temperature then drops, such moisture freezes (Tr, 169, 178). According
to Mr. Lien, this would lead to the creation of "white ice," which looks like
regular snow but in reality is a thin layer of very hard slick ice (Tr,
169-170). The same type of condition can be caused by freezing rain or other
forms of precipitation (Tr, 182).
In his opinion, it was the snowmaking operations near turn 3 on the Excelsior
trail that caused the white ice to form on the day in question (Tr, 173-177).
Based upon his review of "data"
and the rise in temperature that day, Mr. Lien testified that the ice could not
have formed any other way since there was no freezing rain or other
precipitation that could have created it (Tr, 182). However, he did not
specifically testify as to the amount of water and air flow from the snow guns
that day, or for that matter, where any snow guns were
Mr. Lien was unsure of the boundary
in the trail that separates upper Excelsior from lower Excelsior, therefore he
did not know precisely where the accident occurred (Tr,
Upon cross-examination, Mr. Lien testified that Exhibit 15, a document that is
labeled "Anticipated Conditions Report" with a current date and time listed as
"12/25/98 3:00 P.M.", indicated that the temperature at the top of the mountain
was 4 degrees Fahrenheit; the middle was 11 degrees Fahrenheit; and the base was
16 degrees Fahrenheit. He stated that all of those temperatures would be
appropriate for snowmaking (Tr, 190). It was unclear to Mr. Lien and the Court
whether those temperatures were actually taken at 3:00 P.M. that day. No
testimony by a Whiteface employee was proffered to substantiate defense
counsel's assumptive questions that these temperatures were taken at 3:00 P.M.
However, the Court further notes that Exhibit BB indicates that at pump house 3,
which is close to the accident site
, it was
11 degrees at 6:30 a.m.; 19 degrees at 11:30 a.m.; and 17 degrees at 5:30 P.M.
Mr. Lien testified that temperatures ranging from 22 degrees on downward, which
Exhibit BB demonstrates, would be conducive to making snow (Tr,
Upon reviewing Exhibit N, the snowmaking foreman's shift report for 6 A.M.- 6
P.M. on December 25, 1998, Mr. Lien noted that snowmaking occurred on lower
Excelsior trail that day but not on upper Excelsior. In his opinion good
snowmaking did not occur since there was merely a thin cover on Excelsior at
approximately 9 A.M. and 12:30 P.M. on December 25, 1998 (Exhibits 6 and 7; Tr,
224-225) and the snowmakers started with only two guns in the morning and ended
with 44 that day (Exhibit N; Tr, 224). However, the Court notes that it is
unclear from Exhibit N, page 1, exactly how many snow guns they started with
Further, although the fourth page of Exhibit N indicates that certain pumps were
serviced from pump house 3 during the day on December 25, 1998, there is nothing
to indicate the location of those pumps and there was no testimony as to where
they were located.
James Allott, the Operations Supervisor at Whiteface, testified on behalf of
He stated that a document labeled "Warning to Skiers", prepared by the New
York State Ski Areas Association, was posted at several areas at the ski center
(Exhibit C; Tr, 255-256).
The warning was
also posted on the main sign board at the base of the mountain (Exhibit T; Tr,
Additionally, the back of the lift
ticket, which a skier affixes to his/her jacket, contains a notice to skiers
directing their attention to the posted "Warning to Skiers" and advises them
that New York law requires them to read this warning before participating in
skiing (Exhibit S; Tr, 312-313). Also in accordance with the Safety in Skiing
Code, Whiteface had posted the time and meeting place of a "Skier Risk Awareness
Instructional Meeting" on its main sign board at the base of the mountain and at
other areas in the ski facility (Exhibit V). This class, taught by a ski
patroller or ski instructor, takes place daily (Tr, 293, 324).
Trail condition reports
are posted twice daily at twelve locations following ski patrollers' inspections
of the trails (Tr, 334-335, 345).
surface condition definitions are contained in the Ski Patrol Employee Handbook
(Exhibit 17). There is a note in such handbook that the surface conditions may
result from natural or machine made snow or both (Tr, 319). Exhibits 6 and 7 are
the reports for December 25, 1998. Exhibit 6, which was posted at 9:00 A.M. that
day, indicates that the general surface conditions on the Excelsior trail were
"FG PP SM " (frozen granular, packed powder,snowmaking). Under the "remarks"
column the words "thin cover" appear. Exhibit 7, which was posted at 12:30 P.M.
that day, indicates that the general surface conditions on the Excelsior trail
were "FG SM" (frozen granular,snowmaking) and the words "thin cover" remain
under "remarks". The abbreviations "IS" (icy surface) and "IP" (ice patches) do
not appear on either report for the Excelsior trail on this
Bruce McCulley, an assistant venue manager at Whiteface with significant
snowmaking experience, testified about the snowmaking operations at the ski
resort. He indicated that there are two shifts for snowmaking. The "A" shift
works from 6:00 A.M. until 6:00 P.M. and the "B" shift works from 6:00 P.M.
until 6:00 A.M. The snowmaking system consists of water pumps and air
compressors located at four pump houses throughout the mountains (Exhibit BB;
According to Mr. McCulley, snow is made when "[t]he air blasts the water into
small particles, atomizes water, sprays it out, which freezes and falls as snow"
(Tr, 364). The pump houses must be in operation to make snow. To make snow on
the lower Excelsior trail, pump houses 1-3 would need to be running. He
testified that the temperatures at pump houses 1-3 during the day on December
25, 1998 were ideal for snowmaking (Exhibit BB; Tr, pp 386-389). To make snow on
upper Excelsior, pump houses 1-4 would need to be running (Tr, 382). Exhibit
BB, the "Snowmaking Foremans Shift Report" for the A shift (6:00 A.M.- 6:00
P.M.) on December 25, 1998, indicates that only pump houses 1-3 were in
operation at that time and 10 snowmaking guns were used on lower Excelsior. The
records indicate that no snowmaking occurred on upper Excelsior during that time
period. As noted above, in order to obtain the water needed for making snow on
lower Excelsior, the water pipes from pump house 3 must be used. These pipes
come from the Connector trail and then run underneath lower Excelsior trail to
the hydrants and snow guns that are located to the skiers' right side on such
trail. Mr. McCulley estimated that the point where claimant fell, at turn 3 on
upper Excelsior trail, was 500-600 feet uphill from the point where the water
pipes come out on Excelsior trail (Tr, 383). He further testified that 50 feet
is the maximum amount of hosing that Whiteface would use to transport water to a
snow gun (Tr, 383-384). Mr. McCulley also stated that snowmaking did not take
place on upper Excelsior until after 12:30 A.M. on December 26, 1998 when the B
shift started pump house 4 (Tr, 389).
I. Is white ice an inherent risk of skiing under Article 18 of the
General Obligations Law?
Claimants argue that the alleged white ice that was created by the snowmaking
process at Whiteface is not an inherent risk of skiing since it was man-made
and, therefore, liability should be established under common law rather than the
Specifically, they argue that the non-inclusive list of inherent risks found in
§18-101 are all naturally occurring environmental conditions, and
consequently, man-made environmental conditions are not inherent risks of
skiing. This interpretation of §18-101 is incorrect for several
Article 18 of the General Obligations Law ("Article 18") is entitled "Safety in
It specifically delineates the general duties of ski operators, passengers on a
tramway, and skiers. It further outlines the duties of skiers and ski operators
with respect to certain inherent risks. The term "inherent risks" is explained
in the legislative purpose section of the Article as "risks of personal injury
or death or property damage, which may be caused by variations in terrain or
weather conditions; surface or subsurface snow, ice . . .
The legislative purpose section
indicates that "it is also necessary and appropriate that skiers become apprised
of, and understand, the risks inherent in the sport of skiing so that they may
make an informed decision of whether or not to participate in skiing
The primary consideration of the courts in the construction of statutes is to
ascertain and give effect to the intention of the Legislature. No narrow
construction of the statute may thwart the legislative design (McKinney's Cons
Laws of NY, Book 1, Statutes §92
), and courts are not at liberty to hold that the Legislature had an intention
other than that which the language indicates: new language cannot be imported
into a statute to give it a meaning not otherwise found therein (id.
§94). In passing upon legislative intent, courts should read a statute with
regard to the state of facts which were found by the Legislature and which
prompted enactment (id.
, §95). A preferred construction is one which
furthers the object, spirit and purpose of the statute (id.
General words in a statute should be given their full significance in the
absence of a legislative intent to the contrary (id.
In the instant case, it would be difficult for the Court to narrowly interpret
the word "ice" as meaning natural ice but not man-made ice, when no such
distinction is found in the statute. Additionally, after the non-exhaustive
listing of inherent risks, the statute reads, "or other natural objects
objects that are incidental to the provision or maintenance
of a ski
facility . . . ." (General Obligations Law, §18-101 [emphasis
added]). This language expressly recognizes that the inherent risks associated
with skiing can include those created by mankind, which is directly contrary to
the premise of claimants' argument.
Separating man-made ice from the "ice" that would be included in the list of
inherent risks would disregard the circumstances which prompted enactment of the
According to the Business Council of New York State, which supported the bill in
1988, the liability insurance for many members of the ski industry had increased
up to 600% in the three years prior to enactment of Article
It was hoped that by defining the
duties of the skiers and the operators, the likelihood of injuries would
decrease and lessen the number of personal injury actions brought against the
State and other facility owners.
believed that the decrease in personal injury actions would stabilize ski area
liability insurance costs and keep the cost of skiing in New York competitive
with that in other
Writing to the Governor's counsel, the then Majority Leader of the Assembly
wrote in support of the bill:
This measure should alleviate the current fiscal difficulties confronted
by the ski area operators in New York State which is due in large part to
rapid escalation of liability insurance premiums for these areas over the
past five years. Increased awareness to the risks attendant to the sport
would help reduce the number of injuries attributed to ski area operators
thus stabilize and/or decrease their liability
Upon reviewing Article 18 of the General Obligations Law and its legislative
history, the Court concludes that the word "ice' used in the statute includes
and incorporates white ice, such as that encountered by claimant, as an inherent
risk of skiing, and that such inclusion is not dependent upon whether the white
ice occurs naturally or is man-made. The Court bases this conclusion upon the
Legislature's choice of the unambiguous and unqualified word "ice" and its
inclusion of the clause, "or other natural objects or man-made objects that are
incidental to the provision or maintenance of a ski facility . . . ." in section
18-101. Further, a review of the legislative history of Article 18 reveals that
one of the reasons for its enactment was the rising costs of liability insurance
premiums for the ski resort industry. In the Court's opinion, this purpose
supports a broad interpretation of the Legislature's list of inherent risks.
II. Did the parties fulfill their obligations under Article 18 of the
General Obligations Law?
Section 18-106 (1) (a) of the General Obligations Law requires ski area
operators to post at every point of sale or distribution of lift tickets a
conspicuous "Warning to Skiers" relative to the inherent risks of skiing and to
imprint on all sold or distributed lift tickets text and graphics directing the
attention of all skiers to the required "Warning to Skiers". The Court is
convinced, through the testimony of James Allott and certain exhibits, that
defendant complied with these requirements (Exhibits C, S, T, U). Concomitantly,
section 18-106 (2)(a) requires skiers to seek out and read the "Warning to
Skiers". JoAnn Jamieson did not recall observing these warnings that day (Tr,
Section 18-103 (2) requires ski area operators to post signs to provide skiers
with the knowledge of their responsibilities. Again, the Court credits the
testimony of Mr. Allott that these signs were posted at all ticket sale areas,
at the main map board, and at other locations (Tr, 250), even though JoAnn
Jamieson did not recall observing this sign that day (Tr, 39-41).
Section 18-106 (1)(c) requires ski area operators to make available skier
instruction relative to the inherent risks in the sport and to conspicuously
post notice, times and places of availability of such instruction. Whiteface
provides a daily skier risk awareness instructional meeting (Exhibits D,V; Tr,
293, 324). These meetings were not mandatory, but section 18-106 (2)(b) only
requires skiers to obtain such education as the skier deems appropriate to his
or her ability level. The Jamiesons did not testify that they attended this
meeting while at Whiteface, but the family did testify that they had significant
Section 18-103 (5)(e) requires ski area operators to maintain an information
board in a central location that shows the general surface condition of each
slope and trail as determined by the twice daily inspection of the slope or
trails as required by section 18-103 (6)(a)-(c). Section 18-105 (5) requires
skiers to familiarize themselves with posted information before skiing any
slope, including all information posted pursuant to section 18-103 (5).
According to Mr. Allott, whom the Court finds credible, Whiteface maintains
these trail conditions
and posts them twice daily pursuant to ski patrollers' inspections (Exhibit Y;
Tr, 334-335, 345). Exhibits 6 and 7, the trail conditions reports for December
25, 1998, do not indicate that there were any icy surfaces or icy patches at
9:00 A.M. or 12:30 P.M. JoAnn Jamieson testified that her knowledge of the
trail conditions did not come from reading the trail reports but rather from
verbal exchanges she may have had that day (Tr, 45-46). Mark Jamieson did not
recall reviewing trail condition reports that day (Tr, 103), but Daniel Jamieson
testified that the family checked the general postings of the ski conditions on
the chalkboard that day (Tr, 149). Section 18-106 (1)(b) further requires ski
area operators to post at points of sale or distribution of lift tickets a
notice to skiers that there are certain duties applicable to skiers under the
law. Whiteface also complied with this requirement (Exhibits C, D, U).
Section 18-105 (2) states that it is the duty of a skier not to ski beyond his
or her limits or ability to overcome variations in slope or surface conditions
which may be caused by weather. Claimant testified that she was an intermediate
skier and Excelsior was an intermediate trail. She further testified that she
had significant experience skiing in the northeast. The Court finds that
claimant was not skiing beyond her abilities on December 25, 1998.
The Court finds that the defendant complied with the requirements of Article 18
of the General Obligations Law. There is a significant question, however, given
the uncertainties and inconsistencies of the Jamiesons' testimony as to whether
they fulfilled their duties, particularly the requirements of sections 18-106(2)
III. Would defendant be liable under common
In light of the legislative history of Article 18, the Court's determination
that defendant violated no statutory duty could be the end of the inquiry on the
ground that an inherent risk such as ice is governed exclusively by the
Other courts, however, have looked at both the statutory provisions and common
law to determine if there is liability in ski accident cases. In Sharrow v
New York State Olympic Regional Dev. Auth.
(193 Misc 2d 20 [Ct Cl 2002]),
Judge Francis T. Collins held that the State did not violate any of its duties
under Article 18 but that it breached its common-law duty to warn skiers of a
significant change that had been made to one of the ski trails. This holding was
affirmed by the Third Department (307 AD2d 605 ) in a decision that
discussed only common-law principles and noted that because the finding of
liability was supported by common-law principles, it was unnecessary to reach
the arguments based on the Safety in Skiing Code (id.
, at 609).
Furthermore, in Sytner v State of New York
(223 AD2d 140, 143
), the Third Department addressed this issue even more directly: "A
review of the legislative history of General Obligations Law article 18
demonstrates that it was not meant to abolish the application of the common-law
duty to warn of dangerous conditions."
In the instant case, it makes little difference whether common law or the
statutory provisions are applied, for essentially the same result is reached.
‘"Relieving an owner or operator of a sporting venue from liability for
inherent risks of engaging in a sport is justified when a consenting participant
is aware of the risks; has an appreciation of the nature of the risks; and
voluntarily assumes the risks"' (
Morgan v State of New York
, 90 NY2d 471, at 484 , citing
Turcotte v Fell
, 68 NY2d 432 ). A defendant's common-law duty is
the duty to exercise care to make the conditions "as safe as they appear to be."
Thus, if the risks are obvious and fully comprehended and the plaintiff has
consented to them, the defendant has performed its duty (id.
It has been noted, for example, that expert skiers should have known that after
3:30 in the afternoon, granular snow would tighten and icy conditions would be
more likely to develop (
Nagawiecki v State of New York
, 150 AD2d 147 [3rd Dept 1989]). An
intermediate skier should have known that sudden changes in grade, including
those caused by snowmaking or grooming, and the presence of natural objects,
such as chunks of ice, can and do occur (Giordano v Shanty Hollow Corp.
209 AD2d 760 [3rd Dept 1994], citing Nagawiecki v State of New York
. In order to recover where injuries occur in the context of
engaging in a sporting activity, the injured party must establish that the
defendant created or failed to warn about a condition that was unique and
dangerous beyond the usual dangers that are inherent in the sport (Steiner v
New York State Olympic Regional Dev. Auth.
, UID ##2003-015-580 Claim No.
104055, Aug. 12, 2003, Collins, J., citing Owen v R.J.S. Safety Equip.
79 NY2d 967, 970 ).
A plaintiff consents to the risks that are inherent in or arise from the nature
of the sport (
Morgan v State of New York
, 90 NY2d 471, supra
). For example,
being hit with a bat or a ball at a baseball game or being bumped by a horse at
a horse race have been deemed inherent risks of those activities (id.
citing Checchi v Socorro
, 169 AD2d 807 [2d Dept 1991] and Turcotte v
, 68 NY2d 432, supra
). More relevant here, the risks of personal
injury caused by ice have been held to be inherent in the sport of downhill
racing (Giordano v Shanty Hollow Corp.
, 209 AD2d 760, supra
recently, subsurface ice was deemed an inherent risk of downhill skiing
(Painter v Peek 'N Peak Recreation
, 2 AD3d 1289 [4th Dept 2003]). On the
other hand, sport participants do not assume risks that are the result of
reckless or intentional conduct on the part of the defendant (Morgan v State
of New York
In the instant case, claimants maintain that defendant is liable because of
negligent improper snowmaking near turn 3 on the upper Excelsior trail, creating
a massive area of white ice that caused claimant to ski off the mountain. There
is no dispute about the accident or the location at which it occurred, but
claimants failed to established that there was snowmaking taking place in the
vicinity of the accident site, much less that it was performed negligently.
Exhibits F and CC indicate that turn 3, where the accident occurred, is located
on upper Excelsior trail. Mr. Jamieson did not recall snowmaking in progress as
he traversed the icy spots on upper Excelsior that day. Daniel Jamieson
testified that a snow gun was in operation at the bottom of turn 3 but he did
not indicate with any specificity where it was located, and depending on that
location, whether it could have played any role in causing claimant's accident.
Bruce McCulley, whom the Court found credible, testified that pump house 4,
which is needed to make snow on the upper Excelsior trail, was not running
between 6 A.M. and 6 P.M. on the day of the accident. Snowmaking did occur on
lower Excelsior trail during that day, as conditions were excellent for good
snowmaking. Mr. McCulley testified, however, that the accident occurred 500-600
feet away from the water pipes needed for the snow guns and that there was no
hose system available to transport water closer to the accident site.
Claimant produced an expert who proposed a conclusory theory of liability which
was unsupported by relevant facts. Mr. Helge Lien, claimants' expert, opined
that it was the snowmaking operations near turn 3 which caused white ice to
form. He was unaware, however, where exactly the accident had occurred and where
snow guns were located near turn 3. His testimony lacked specific data on which
he based his conclusion that air and water were negligently mixed into the snow
guns that day. Furthermore, he acknowledged that the phenomenon of "white ice"
can have natural causes, such as freezing rain, as well as resulting from
Even more fundamentally, claimant also failed to establish that a massive area
of white ice existed at the time of the accident. Claimant testified that the
icy area near where she fell was "massive", "the full width of the run", and
"the same all the way down". Mark Jamieson did not know how large the icy area
was other than as it was described by his wife. Daniel Jamieson testified that
the icy area was 25 yards forward and backward from where his mother fell. Other
than the testimony of these witnesses, there is nothing in the record to confirm
the existence of a very large patch of white ice. Even accepting that there
were some icy patches at that location, the Court cannot determine the size of
the patches from the only proof presented, whether a skier of claimant's
experience would have been able to avoid any patch of significant size, and
whether claimant's accident was caused by ice. This situation can be
distinguished from that in
Sytner v State of New York
(223 AD2d 140, supra
), where the Court
found that there was an icy area on a novice trail between 25 and 35 feet wide
and 40 and 50 feet long, that the skier had been funneled directly onto that ice
by the operation of machinery on the other part of the trail, and that warning
signs had been posted at the top of the trail on which the machinery was
working, but not on the crossover to warn skiers coming from that direction. It
was held that these factors, taken together, created a risk of harm that had not
been assumed by the skier.
In contrast, claimant chose to ski on the left-hand side of the Excelsior
trail; the trail was suitable for intermediate skiers; claimant was an
experienced intermediate skier; and the condition that she allegedly encountered
– a covering layer of ice – is an inherent risk in the sport of
skiing. Consequently, under the common law, there is no liability. Claimant did
not propose, nor do the facts support, a conclusion that there were any reckless
or intentional acts on the part of defendant that caused this accident.
Because claimants failed to prove a prima facie case of negligence that would
make the State liable for their injuries, the Chief Clerk is directed to enter
judgment in favor of the defendant, dismissing the claim. Any and all motions
heretofore raised and not decided are denied.
Let judgment be entered accordingly.