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,
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,
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.
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 ).
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.