New York State Court of Claims

New York State Court of Claims

JAMIESON v. STATE OF NEW YORK, #2004-032-505, Claim No. 102451


The claim of a skier who, it is alleged, lost control when she encountered a large patch of "white ice" is dismissed after trial. Icy conditions on ski trails are an inherent danger of the sport of skiing and claimant, an experienced skier, assumed the risk associated with such conditions. The interelation of GOL, article 18 and the common law is discussed.

Case Information

JOANN JAMIESON and MARK JAMIESON The Court sua sponte amends the claim's caption to delete the Olympic Regional Development Authority as a named defendant. Section 2622 of the Public Authorities Law confers exclusive jurisdiction upon the Court of Claims to hear and determine claims against the Olympic Regional Development Authority for personal injuries or property damages, but the Authority does not enjoy an existence separate and apart from the State of New York (Craig v State of New York, 261 AD2d 683 [3d Dept 1999]).
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court sua sponte amends the claim's caption to delete the Olympic Regional Development Authority as a named defendant. Section 2622 of the Public Authorities Law confers exclusive jurisdiction upon the Court of Claims to hear and determine claims against the Olympic Regional Development Authority for personal injuries or property damages, but the Authority does not enjoy an existence separate and apart from the State of New York (Craig v State of New York, 261 AD2d 683 [3d Dept 1999]).
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Kenneth P. Ray, P.C.
Lewis, Lewis & Ferraro, L.L.C.By: Scott F. Lewis, Esq. Admitted pro hac vice by order filed September 12, 2002.
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:
June 3, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose on December 25, 1998 when claimant, JoAnn Jamieson, skied off the upper Excelsior trail of Little Whiteface Mountain at the Whiteface Mountain Ski Resort, which is owned and operated by defendant. Tragically, she became airborne, struck trees and came to rest against a tree trunk. The claim alleges that the defendant was negligent in the ownership, management, operation and control of the Whiteface Mountain Ski Resort, specifically by creating "white ice" on the trails through negligent snowmaking operations and failing to warn skiers of this danger. The trial was bifurcated and this decision addresses only the issue of liability. After reviewing Article 18 of the General Obligations Law, its legislative history and common law, the Court finds that claimants failed to prove a prima facie case and the defendant is not liable under statutory or common law. The claim is dismissed.
On December 24, 1998, JoAnn ("claimant") and Mark Jamieson[1]
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 trail[2]
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 traversing[3]
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 [4]
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' expert.[5]
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 Excelsior trail.[6] 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"[7]
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 located.[8] 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, 191).
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. that day.[9]
However, the Court further notes that Exhibit BB indicates that at pump house 3, which is close to the accident site[10], 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, 237).
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 that day.[11]
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 the defendant.

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).[12] The warning was also posted on the main sign board at the base of the mountain (Exhibit T; Tr, 261).[13] 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[14]
are posted twice daily at twelve locations following ski patrollers' inspections of the trails (Tr, 334-335, 345).[15] The 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 date.[16]
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; Tr, 362).[17]

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 statute.[18]
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 reasons.
Article 18 of the General Obligations Law ("Article 18") is entitled "Safety in Skiing Code".[19]
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 . . . .".[20] 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 notwithstanding the risks."[21]
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., §96). General words in a statute should be given their full significance in the absence of a legislative intent to the contrary (id., §§114, 238).
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
or man-made 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 statute.[22]
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 18.[23] 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.[24] It was 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 states.[25]

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 the

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 and

thus stabilize and/or decrease their liability rates.[26]

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, 40, 44).

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 skiing experience.

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[27]
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) and 18-105(5).

III. Would defendant be liable under common law?
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 statute.
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 [2003]) 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 [1996]), 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."[28]
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 [1997], citing Turcotte v Fell, 68 NY2d 432 [1986]). 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, supra. 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 [1992]).
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 Fell, 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) and 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, supra).
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 improper snowmaking.

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.

June 3, 2004
Albany, New York

Judge of the Court of Claims

[1]The claim of Mark Jamieson is derivative in nature and, unless otherwise indicated, the term "claimant" shall refer to JoAnn Jamieson.
[2]There are three ratings for trails at Whiteface: easiest, more difficult and most difficult. Excelsior, as an intermediate trail, is more difficult. A sign at the base of each ski lift is posted with the ratings of the trails (Tr, 302-303).
[3]Claimant defined traversing as going back and forth from side to side (Tr, 49).
[4]Whiteface has twenty ski patrollers who must undergo extensive training before serving as a ski patroller (Exhibit 17; Tr, 303-304).
[5]Mr. Lien obtained a degree similar to a Bachelor of Science in Civil Structural Engineering in Norway. After he obtained his degree he worked in the design of ski facilities in the United States and Norway. While serving in the Norwegian Army Infantry, which uses skis in the winter, Mr. Lien gave instructions in cold weather arctic warfare. He was certified as a ski instructor by the Norwegian Ski Association in 1963 and was eventually certified in the United States. He is an experienced ski racer. He has designed snowmaking systems in ski areas in Norway and the United States.
[6]Mr. Lien took photographs of the accident site several years later. The Court admits Exhibit K for the general depiction of the left-hand side of the trail, but does not admit Exhibit G, a photograph of the right-hand side of the trail where certain modifications had occurred after the accident.
[7]Mr. Lien did not elaborate as to the nature of this data.
[8]Claimant did not provide any evidence explaining specific snowmaking activity by Whiteface employees or location of snow guns.
[9]The Court notes that the time "3:00 PM" was not typed in boldface as the other entries on the report. These temperatures also do not reconcile with the temperatures recorded on Exhibit BB for pump houses 1 and 2, located at the base of the mountain, and pump house 3, located at mid-mountain, which had higher temperatures.
[10]No temperature records for pump house 4, which is the closest to the accident site, were proffered.
[11]The "2" Mr. Lien testified to may actually be a question mark.
[12]Exhibit T is admitted into evidence as generally illustrative of the testimony of Mr. Allott.
[13]The warning includes a passage from section 18-101 of Article 18 of the General Obligations Law, the Safety in Skiing Code, that outlines some of the inherent risks of skiing.
[14]This term is used interchangeably throughout the trial transcript with the terms surface condition reports (Tr, 283); ski condition reports (Tr, 280); ski patrol reports (Tr, 281); however they are labeled as a "General Snow Condition Report" (Exhibits 6 and 7) but identified by Mr. Allott as "trail condition reports" (Tr, 294).
[15]Exhibits V and Y, photographs of such reports posted at Whiteface, are admitted into evidence as generally illustrative of the testimony of Mr. Allott.
[16]The Court notes that Exhibits 1 and 2, which are incident reports concerning this accident, indicate "frozen granular ice" as a contributing factor of the accident. However, it is unclear how or from whom this information was obtained.
[17]Defense counsel erroneously described Exhibit AA as Exhibit 1 (Tr, 362).
[18]Section 18-107 provides: "Unless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law."
[19]Chapter 711 of the Laws of 1988; Senate bill 9263/Assembly bill 8448-A.
[20]General Obligations Law, §18-101. The list also includes: "bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility . . . ."
[22]Indeed, this course of action would open the floodgates to litigation in New York since snowmaking is so prevalent in the northeast, thereby nullifying the effectiveness of Article 18.
[23]Letter of Daniel Walsh, President of the Business Council of New York State, to Evan Davis, counsel to former Governor Mario Cuomo.
[24]Memorandum from Langdon Marsh, Executive Deputy Commissioner of the Department of Environmental Conservation, to Evan Davis in support of the bill.
[25]Memorandum in support of Senate bill S. 9263 from Lesley Douglass Webster, Deputy Commissioner and Counsel to the Department of Economic Development, to Evan Davis.
[26]Letter of Majority Leader James Tallon, Jr., to Evan Davis.
[27]§ 18-103(6) requires that Whiteface maintain a log of these surface conditions. Whiteface maintains a file, not a log, of these reports, and therefore, is in violation of this section of Article 18.
[28]However, the Appellate Court also added that, pursuant to the statute, "where a particular hazardous condition is specifically addressed by the statute, the statute controls; otherwise, the common law still applies" (Sytner, 233 AD2d at 143) (the injured party had been forced to ski onto a large patch of ice because there were snowmaking machines on part of the trail).