New York State Court of Claims

New York State Court of Claims

COSTIGAN v. THE STATE OF NEW YORK, #2005-032-501, Claim No. 106207


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Goidel & Siegel, LLPBy: Stephen Cohen, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michele M. Walls, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 22, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant alleges that he sustained injuries after exiting a chairlift on a ski slope operated by defendant. After a one-day bifurcated trial on liability, the Court dismisses the claim.

Claimant testified at trial that on February 17, 2001, he and a friend, James Rivers, arrived at Belleayre Ski Mountain, a facility owned and operated by defendant. Claimant and Rivers met two other friends for a day of skiing on the mountain. After renting equipment, claimant and his friends boarded a chairlift to make their first run down the mountain. As claimant exited the chairlift at the midstation ramp, he fell over the skis of another skier who had apparently fallen on the ramp platform,[1]
and suffered injuries to his right elbow. He did not report the incident to ski patrol or other personnel and sought medical treatment after returning home. No documentary proof, such as an accident report, receipts for ski rental or admissions, were offered to prove that claimant was actually there that day. Claimant, a self-described intermediate skier who has been skiing for approximately 40 years,[2] contends that defendant's failure to stop the chairlift was negligence, when the other skier was on the ramp without his or her skis.
The Court reserved at trial on defendant's objection to testimony by Rivers that he heard someone yell to the lift operator to stop the lift because two skiers were blocking the ramp platform.[3]
The Court determines that such statement is hearsay. The facts do not support that the statement was the result of "a startling or upsetting event" to be an excited utterance, nor is there any indication that the statement was contemporaneous to the declarant's observance of events as required for a present sense impression (People v Vasquez, 88 NY2d 561,574 [1996]). Even if this Court were to admit this statement, claimant fails to meet his burden of proof.
It is well settled that claimant bears the burden of establishing his claim by a preponderance of the credible evidence (
see e.g. Aragones v State, 247 AD2d 657, 658 [3d Dept 1998]). At trial, claimant testified that he and Rivers boarded a double chairlift and exited at a midstation, and that he knew the difference between a double chairlift and a triple chairlift. A map depicting the ski area demonstrates, however, that defendant does not have a double chairlift that stops at a midstation. Rather, the only midstation is contained on a trail with a triple chairlift. As such, claimant either does not know the difference between a double chairlift and a triple chairlift, or he does not know where he fell. Further, claimant's testimony at trial was inconsistent with his deposition testimony. Claimant testified that when he and Rivers exited the lift, two skiers were "right in front of me" [T:19] and one pair of skies were blocking half the ramp. At his deposition, however, claimant testified that at the time he exited the chairlift, he did not think that he would have a problem navigating around these skiers [T:153].
"It is well settled that a ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including risks associated with the use of a chairlift, when the participant is aware of, appreciates and voluntarily assumes those risks" (
De Lacy v Catamount Development Corp., 302 AD2d 735, 736 [3d Dept. 2003]). Although claimant acknowledges that he assumed certain risks when skiing, he contends that defendant violated its own policy by failing to stop the chairlift until the hazard created by the skiers on the midstation ramp platform was cleared. The Court is unpersuaded. At trial, the employee responsible for overseeing the chairlift operation testified that lift attendants at midstation booths are to use their judgment in determining whether to stop the chairlift due to obstruction of the midstation ramp platform or at any other time. Claimant's deposition testimony admits that he did not think that he would have a problem navigating around the skiers on the midstation ramp. Thus, if claimant did not perceive the skiers as a danger, it is difficult to see how the chairlift operator, observing what claimant observed, can be faulted for failing to stop the chairlift. As such, even if claimant's testimony is credited, it does not establish that defendant breached any duty to claimant or that the incident was so outside the norms encountered in skiing that claimant did not assume the risk of this type of injury-producing event.
Accordingly, the claim is dismissed and all motions not heretofore ruled upon are denied. Let judgment be entered accordingly.

March 22, 2005
Albany, New York

Judge of the Court of Claims

[1]Two skiers were on the ramp, one skier was apparently helping another skier who fell.

[2]In fact, one week prior this accident, claimant had gone to Aspen, Colorado, for a week of skiing.

[3]An employee is stationed in a booth at the midstation platform to operate the chairlift.