New York State Court of Claims

New York State Court of Claims

RUSSO v. THE STATE OF NEW YORK, #2006-015-088, Claim No. 108761, Motion No. M-71235


Claimant, an experienced skier/snowboarder assumed the risk of encountering bare and wet spots on Gore Mountain while participating in Springtime snowboarding.

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:
Abdella Law OfficesBy: Robert Abdella, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 9, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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 6[1] years of snowboarding experience, was snowboarding down a trail known as Wild Air[2] at 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 defendant's Exhibit A).
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 8[3]):
Q. On average in the last five, six years how many times have you gone?
A. How many times have I gone snowboarding?
Q. Yes.

A. Oh –

MR. CASALE: In the last six years?


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 board?

A. At least twenty.

When asked to rate himself as a snowboarder claimant answered "I'm good, so expert, intermediate expert" (p 12)[4]. He 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 trail.

During his examination claimant gave the following description of his accident:
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 as follows:
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 (p 37).
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 I).

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 [1]) which is one of the statutorily recognized risks inherent in the sport of downhill skiing (see Bennett v Kissing Bridge Corp., 17 AD3d 990).

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 the policy.

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 occasions.

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
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
1. Notice of motion dated January 31, 2006;
  1. Affirmation of Paul F. Cagino dated January 31, 2006 with exhibits;
  2. Affidavit of Robert Abdella sworn to February 22, 2006 with exhibits;
  3. Affirmation of Paul F. Cagino dated February 28, 2006;
  4. Affidavit of Robert Abdella sworn to March 1, 2006.

[1].When questioned concerning his snowboarding experience at his EBT held on October 15, 2004 the claimant replied "this would have been my seventh year".
[2].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)".
[3].All future references to claimant's EBT transcript will be by page number only, designated as "p ".
[4].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]).