RUSSO v. THE STATE OF NEW YORK, #2006-015-088, Claim No. 108761, Motion No.
Claimant, an experienced skier/snowboarder assumed the risk of encountering
bare and wet spots on Gore Mountain while participating in Springtime
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Abdella Law OfficesBy: Robert Abdella, Esquire
Honorable Eliot Spitzer, Attorney General
F. Cagino, EsquireAssistant Attorney General
May 9, 2006
See also (multicaptioned
Defendant's motion for summary judgment dismissing the claim is granted as the
court finds that claimant assumed the risk of injury through his participation
in the sport of snowboarding on March 23, 2003 at the Gore Mountain Ski Center
in North Creek, New York, a facility owned by the State of New York and operated
by the Olympic Regional Development Authority (Slutzky v Cuomo
, 114 AD2d
116). The claim alleges that at approximately 10:30 a.m. on March 23, 2003
claimant, then eighteen years old with 7 years of skiing experience and
years of snowboarding experience, was
snowboarding down a trail known as Wild Air
Gore Mountain Ski Resort "when he was caused to lose control of the operation of
his board due to the inadequate maintenance of the aforesaid slope."
Specifically, the claim asserts that the "slope was allowed to develop bare
spots in the snow, thereby exposing ground and dirt; the slope was allowed to
become watery and slushy; and in general, the slope was allowed to develop
conditions which were unsafe for skiing" (see
At an examination before trial conducted on October 15, 2004 (Exhibit E)
claimant was asked the following questions and gave the following answers
regarding his snowboarding experience (p
Q. On average in the last five, six years how many times have you gone?
A. How many times have I gone snowboarding?
A. Oh –
MR. CASALE: In the last six years?
BY MR. CAGINO:
Q. Do you try to go every weekend?
A. Yes, I go every weekend.
Q. On an average in a season, let's go back to, this happened in '03, let's
say, 2001, 2002 and 2003 how many times a ski season would you ski or
A. At least twenty.
When asked to rate himself as a snowboarder claimant answered "I'm good, so
expert, intermediate expert" (p 12)
testified that he noticed exposed rock and dirt marked by orange crosses upon
exiting the chair lift at the top of the mountain to begin his first run of the
day. The weather was very warm and the snow was melting. Claimant testified to
the belief that he had previously snowboarded the trail where his accident
occurred without difficulty but did not recall either the trail's name or its
posted level of difficulty.
Claimant recalled that while skiing the trail prior to his accident he kept
"catching [his] edge" which he explained by stating that "[i]t was so warm that
day like the snow was like breaking" (p 23). He was not fearful of falling but
merely corrected his balance and kept going. Claimant estimated that he
observed four bare spots marked with orange markers as he descended the
During his examination claimant gave the following description of his
A. Well, I came – It was a corner kind of and there was the bare spot,
which I didn't see until I hit that and it caught, it hit my front edge and spun
me side ways, and where it actually happened there was actually water on the
trail and that's why I leaned back and it didn't do anything, my back edge
didn't do anything, it shot me in the woods and down an embankment.
As related by the claimant, the bare spot was approximately three feet by three
feet in size and located twenty to twenty-five feet from the left edge of the
trail. There was water, which claimant also referred to as slush, to the left
of the bare spot. Elsewhere in his deposition testimony, claimant testified
that he first noticed the bare spot when he was approximately five feet away.
He described what happened following his unsuccessful attempt to avoid the area
I hit the bare spot, sent me at the woods, and after I realized I couldn't stop
with the water, I was just hydroplaning, I just kicked back and put my feet up
I hit the bare spot, it shot me left, there was slushy water, snow, whatever
there was, I leaned back on my back edge, nothing happened, it just slid right
at the woods, and when I had nothing else to do I fell back on my back and put
my feet up and hit the trees (pp 39 - 40).
In addition to claimant's examination before trial testimony defendant
supported its summary judgment motion with copies of the pleadings; slope
condition reports for the morning and afternoon of March 23, 2003 (Exhibit F);
claimant's accident report (Exhibit G); an affidavit of Mark Anderson, Gore
Mountain Ski Patrol Director (Exhibit H); and a copy of the transcript of Nurse
Ellen Eager's examination before trial held on November 22, 2005 (Exhibit
In his affidavit sworn to on January 26, 2006 Mark Anderson described
conditions on the Wild Air trail on March 23, 2003 as "typical ski conditions
for that time of year" and stated that the conditions encountered by claimant
were typical "spring ski conditions in all ski centers or resorts in the
northeastern United States."
Nurse Eager's examination before trial is largely unremarkable. She did not
have any specific recollection of the claimant or his accident. She testified
that she was on duty on March 23, 2003 and conducted an interview and limited
medical examination of the claimant (Eager T pp 18-19). Although she had no
independent recollection of the day, she testified that she completed an
accident form (Exhibit G) upon which she related various information imparted by
the claimant including his ability level (advanced) and the following
description of the accident:
Coming down - lost control - went into the woods & my board hit into a tree
& I hurt my back.
The accident report is dated March 23, 2003 at 10:40 a.m.
Nurse Eager also testified that as part of her duties at Gore Mountain she
receives slope condition reports for each trail and posts the reports twice
daily on the large information board located near the ticket booths. Exhibit
F, the morning snow condition report for March 23, 2003 relates that conditions
on the Wild Air trail at the time of its inspection at 8:05 a.m. consisted of
frozen granular (FG), loose granular (LG) and bare spots (BS). Nurse Eager
confirmed that the report was completed in her handwriting.
The defendant has met its initial burden on this motion for summary judgment by
submitting evidence, including claimant's own testimony, establishing as a
matter of law that claimant was an experienced skier and snowboarder and that
his accident was caused by "bare spots" (General Obligations Law § 18-101
) which is one of the statutorily recognized risks inherent in the sport of
downhill skiing (see Bennett v Kissing Bridge Corp., 17 AD3d
In opposition to the motion claimant submitted an affidavit of his attorney;
his own affidavit, a copy of the examination before trial of Mark Anderson,
the examinations before trial of ski patrollers Kenneth Grzyb, Gary Reynolds
and Kent J. Destefanis and a copy of Nurse Eager's examination before trial.
Claimant attempted to defeat defendant's motion by arguing that the bare spot
encountered by claimant in his first run on March 23, 2003 should have been
marked by a monopod or some other device to warn snowboarders of its presence as
were the other bare spots observed by the claimant prior to his accident.
Claimant argues that the failure to mark the bare spot located on or near a turn
in the trail violated the ski facility's policy of marking such hazards and
constituted negligence for which the defendant should be held liable. The Court
finds that claimant failed to establish either the existence of a policy at Gore
Mountain which required that all bare spots be marked or that defendant violated
General Obligations Law § 18-101 provides, in relevant part:
(1) that downhill skiing, like many other sports, contains inherent risks
including, but not limited to, the 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, bare spots or areas of thin cover . . .
Individuals voluntarily participating in the sport of downhill skiing assume
the risk of injury caused by conditions inherent to the sport (Jordan v Maple
Ski Ridge, 229 AD2d 756; Fabris v Town of Thompson, 192 AD2d 1045).
The duty imposed upon a ski area operator is to ensure that ski trails are as
safe as they appear to be "and if the risks of the activity were fully
comprehended or perfectly obvious, [a skier] consented to them and defendant
performed its duty" (Giordano v Shanty Hollow Corp., 209 AD2d 760, lv
denied 85 NY2d 802). "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, 484). Whether a participant assumed the risk of
encountering a particular hazard is to be judged in relation to his or her skill
and experience (Sytner v State of New York, 223 AD2d 140).
Despite his relatively young age it is clear that the claimant herein was an
experienced snowboarder on March 23, 2003. He testified at his deposition that
he had snowboarded for six years prior to the 2002-2003 ski season and
estimated that he skied or snowboarded "at least twenty" times during each of
the 2001, 2002 and 2003 seasons. Although he most often skied or snowboarded at
Royal Mountain he had skied/snowboarded at Gore Mountain on four previous
Nurse Eager testified at her examination before trial that she was the
individual charged with receiving, recording and posting snow condition reports
at Gore Mountain twice daily. Exhibit F consists of the morning and afternoon
snow condition reports for March 23, 2003 signed by Nurse Eager. The morning
report shows "Fg" (frozen granular), "Lg" (loose granular) and "BS" (bare spots)
as the conditions existing on Wild Air at the time of its inspection at 8:05
a.m. Claimant does not deny that the condition report was posted as required
by General Obligations Law § 18-103 (5) (e) (Duties of Ski Area Operators)
and admits that he failed to consult the snow condition report prior to skiing
in order to familiarize himself "with posted information before skiing any
slope or trail, including all information posted pursuant to subdivision five of
section 18-103 of this article", a duty imposed upon skiers by General
Obligations Law § 18-105 (5) (Duties of Skiers).
Furthermore, claimant admits that he observed other bare spots prior to
encountering the three foot by three foot exposed area which actually caused
him to fall (see Synter v State of New York, 223 AD2d 140). As to
the fact that some bare spots were marked while others apparently were not the
Appellate Division, Third Department rejected the notion that such circumstances
justify denial of a summary judgment motion stating in Hyland v State of New
York, 300 AD2d 794 at page 795:
Relying on the related principle that a hazard which has been unreasonably
concealed is not within the range of risks assumed in a recreational sporting
activity (see e.g. Roberts v Ski Roundtop, 212 AD2d 768),
claimants argue that the subject bare spot was in fact concealed. They base
this contention on the fact that a different bare spot on the opposite side of
the trail was highlighted with an orange marker. We are unpersuaded. Marking a
particular bare spot on a ski trail does not 'conceal' all others and does not
reasonably create the impression that the entire trail is otherwise free of such
conditions. . . .
Given claimant's six years of experience as a snowboarder, the fact that he was
skiing an intermediate trail (Exhibit 2, Deposition of Mark Anderson) and
identified himself as an advanced skier to Nurse Eager (Exhibit G, Exhibit I)
the Court finds that the claimant had the requisite skill and experience to
perceive and understand the dangers that bare spots might exist in late March
and could cause injury if encountered. Even were that issue open to question,
which in the Court's view it is not, the existence of bare spots was obvious to
the claimant who observed other bare spots prior to his accident. Under these
circumstances the claimant has assumed the risk of injury and the defendant's
motion for summary judgment is, therefore, granted.
The claim is accordingly dismissed.
May 9, 2006
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
1. Notice of motion dated January 31, 2006;
Affirmation of Paul F. Cagino dated January 31, 2006 with exhibits;
Affidavit of Robert Abdella sworn to February 22, 2006 with exhibits;
Affirmation of Paul F. Cagino dated February 28, 2006;
Affidavit of Robert Abdella sworn to March 1, 2006.
.When questioned concerning his snowboarding
experience at his EBT held on October 15, 2004 the claimant replied "this would
have been my seventh year".
.The claim does not specify the trail and
claimant does not recall the name of the trail on which he sustained his injury
but an accident report completed by Nurse Ellen Eager, RN on the day of the
accident listed the recovery site as "Wild Air T 12 (woods)".
.All future references to claimant's EBT
transcript will be by page number only, designated as "p ".
.On the errata sheet attached to the
transcript claimant sought to change his testimony to reflect merely "I'm good."
The Court has decided to disregard the proposed correction since an errata
sheet is designed to correct errors in transcription and not to change testimony
for tactical advantage (Connors, Practice Commentaries [McKinney's Cons Laws of
NY, Book 7B, CPLR C3116:2]).