Cassano v. THE STATE OF NEW YORK and OLYMPIC REGIONAL DEVELOPMENT AUTHORITY,
#2006-015-550, Claim No. 110126
Following a trial on the issue of liability for injuries sustained in a bobsled
accident, claim was dismissed. Defendant established that the procedures
employed for the inspection and maintenance of its bobsleds were
Footnote (claimant name)
THE STATE OF NEW YORK and OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
Footnote (defendant name)
FRANCIS T. COLLINS
Hacker & Murphy, LLPBy: John Harwick, Esq.
Honorable Eliot Spitzer, Attorney General
Glenn C. King,
EsquireAssistant Attorney General
December 5, 2006
See also (multicaptioned
Claimant seeks to recover damages for injuries allegedly sustained on
December 28, 2002 when a State-owned and operated bobsled on which she was
riding tipped over during a run at Mt. Van Hoevenberg in Lake Placid, New York.
Issues of liability and damages were bifurcated and the case proceeded to trial
on July 18, 2006.
The claimant alleges in her amended claim that the bobsled tipped over due to
the negligence of the defendants which "failed to properly inspect, maintain and
operate the sled thereby causing the accident." In addition, the claim alleges
that defendants are liable to the claimant based upon a theory of breach of
warranty and, during trial, claimant moved to conform the pleadings to the proof
with respect to a claim that the defendants breached their duty to warn of the
defective condition of the bobsled. Claimant seeks to premise liability, at
least in part, upon application of the doctrine of res ipsa loquitur.
Claimant testified at trial that the accident occurred during a family vacation
to Lake Placid. She and her then eleven-year-old daughter purchased tickets
for the bobsled run at Mt. Van Hoevenberg. According to the claimant,
information obtained from the State website, which her husband accessed prior
to the vacation, led her to believe that the bobsled would be operated by a
professional driver and that it would be safe. Claimant was admittedly warned
that the bobsled ride was dangerous, which she understood to mean that "maybe
you could get a little whiplash" (Tr. 9)
Received as Exhibit A in evidence was a form, signed by the claimant, in which
she expressly acknowledged that "the use of the Sports Facilities and Equipment
is a hazardous activity and that I could suffer personal injury, which may be
serious, as a user." Claimant testified, however, that no specific warnings
were given concerning the possibility that the bobsled could tip over.
Claimant sat in the bobsled directly behind the driver and her daughter sat
behind her and in front of the brakeman. Claimant testified that within a few
seconds after they began their descent down the mountain the bobsled flipped to
the right causing the claimant to hit her head. The sled returned to an upright
position and shortly thereafter again flipped violently to the right and
continued down the run on its side.
Claimant called John Rand, the driver of the bobsled, and Frank Lawrence, the
brakeman, to testify at trial. Mr. Rand denied that the bobsled flipped
shortly after starting the run. Rather, he testified that the bobsled hit a
wall and flipped onto its side on a curve "right before the finish". He
testified that he lost control of the bobsled when a pin which holds the fifth
wheel, the apparatus by which the sled is steered, came loose and was dislodged.
Mr. Lawrence testified that the pin is secured by "cotter keys" which, in his
opinion, either broke causing the pin to fall out or the pin itself broke.
While the precise cause of the pin falling out was not established, there was no
dispute that the fifth wheel became detached from the sled causing it to lose
steering during the bobsled run.
The testimony at trial established that the defendants adhered to a stringent
maintenance and inspection regimen for the bobsleds. Both Mr. Rand and Mr.
Lawrence testified that every year the defendants perform a pre-season overhaul
of the bobsleds
. In addition, the bobsleds
are inspected each morning prior to use. Mr. Rand testified that the sleds are
inspected by turning the bobsled over and checking all of its components,
including "all the nuts, bolts, check everything, make sure the steering is
good". The witness testified that because the pin is difficult to inspect
visually due to its position in the center of the fifth wheel, it was his
practice to inspect the pin manually. The Court notes the following testimony
from pages 22 and 23 of the record:
Q. Okay. What, if anything, did you do to inspect the pin prior to the run
on the date of the accident?
A. Well, we could – you could actually take the pin, move it around,
make sure the cotter pins were in.
Q. Mm - hmm.
THE COURT: Sir. You were asked what you actually did on that –
Q. Do you remember –
THE COURT: – date of inspection.
Q. Do you remember doing the inspection on –
A. Yeah, I'm telling you.
Q. Okay. Is it true that the pin is kind of hard to see?
A. They are, but you can – you can get to them. We move them around, we
check the cotter pin, make sure that's in and –
* * *
Q. Okay. So there was a fifth wheel on the bottom of the sled?
A. The fifth wheel was underneath the sled. That's what controlled the
Q. And there was a pin in the center of the fifth wheel?
A. Yeah, and then cotter pins to hold it in there.
Q. And there was a bar coming across that fifth wheel?
A. And there's a bar. Yeah, there was a bar.
Q. And that bar obscured your view of the pin that we're talking about?
A. Well, you could actually take it and you can move it with your fingers, and
if it had movement, I mean, it was – you know, you could tell – you
could see if it was cracked or had any – it had movement in it and it was
Mr. Rand made it clear that he undertakes a careful inspection of the sled
before he goes on a bobsled run because in his words "I'm risking my neck too"
(Tr. 25). The testimony of Mr. Lawrence confirmed that the pin is inspected
visually as well as by manipulating it manually. Mr. Lawrence added that if
the cotter keys were broken, the pin would fall out when it was moved during the
Claimant also called Fabian Gonyea, Jr. to testify on her behalf. Mr. Gonyea
was an Operations Supervisor II at the Olympic Sports Complex at the time of the
accident. He testified that the defendants had sole responsibility for the
maintenance of the bobsleds and that the sleds were all inspected before the
start of the winter season. As part of the pre-season inspection, Mr. Gonyea
confirmed that the pin is removed in order to grease the fifth wheel. The pin
is then reinserted and cotter pins are placed in each end. He also testified
that the bobsleds are inspected on a daily basis during the season. His
testimony on the nature and extent of the inspections differed somewhat from
that of Mr. Rand and Mr. Lawrence in that, according to Mr. Gonyea, the pin
was inspected visually. Gonyea testified that as a former driver and brakeman
he has performed many bobsled inspections which he described in the following
When I was driving, we used to tip the sled to the side and then just look in
and look at the pin and see if it's all right, and while we're at it, we grease
the – grease the fifth wheel. Also, there's screws that hold the fifth
wheel on that we have to inspect too (Tr. 70).
Mr. Gonyea testified that, in his opinion, if an adequate inspection is made,
the driver should be able to discern whether or not the pin is broken or worn at
the time of the pre-trip inspection. Although Mr. Gonyea was not qualified to
testify as an expert at trial, he rendered the opinion that the pin should not
fail if an adequate inspection is performed.
Claimant's daughter also testified on her behalf at trial and confirmed that
the bobsled flipped onto its right side after hitting a curve and slid down
the hill on its side.
Claimant presented no proof - expert or otherwise - as to what caused the pin
to become dislodged. The proof at trial in this regard established that the pin
could not be found despite a search of the snowy grounds following the incident
involving the claimant. Instead, she relies upon the doctrine of res ipsa
loquitur to make out a prima facie case of negligence. In
Morejon v Rais Constr. Co. (7 NY3d 203) the Court of Appeals recently
restated the criteria which must be met for res ipsa loquitur to apply:
'(1) the event must be of a kind which ordinarily does not occur in the absence
of someone's negligence; (2) it must be caused by an agency or instrumentality
within the exclusive control of the defendant; (3) it must not have been due to
any voluntary action or contribution on the part of the plaintiff' (id.
at 209 [citations omitted]).
The Court in Morejon reaffirmed the principle that the proper invocation
of the doctrine creates an inference of negligence, not a presumption of
negligence (see also, Foltis, Inc. v City of New York [287 NY
108]). It is a brand of circumstantial evidence which "allows but does not
require the jury to infer that the defendant was negligent" (id. at 209).
The Court clarified that notwithstanding the indiscriminate use of the terms
"presumption" and "inference" in the case law, res ipsa loquitur does no
more than establish a prima facie case from which an inference of negligence may
be drawn (id. at 209). The fact-finder "may, but . . . is in no way
bound to, infer negligence and conclude that the preponderance of proof is with
the plaintiff . . . " (Baumann v Long Is. R.R., 110 AD2d 739, 740
[citations omitted]). Although the defendant need not offer any
countervailing proof, the inference of negligence may be rebutted by proof
that the defendant exercised reasonable care ( id. at 741; see
also, Foltis, Inc. v City of New York, supra, at 118).
Even were the Court to determine that the doctrine of res ipsa loquitur
is applicable in this case, the Court finds that the defendants rebutted
any resulting inference of negligence with proof of reasonable care. The
testimony of Mr. Rand and Mr. Lawrence established that the defendants did
everything within its power to insure that the bobsleds were safe. The bobsleds
were overhauled before the start of the winter season which in 2002 began only
two weeks prior to the claimant's accident. The sleds were also inspected each
morning prior to use. The testimony specifically established that the fifth
wheel, as well as the pin which holds it together, were inspected on the morning
of the accident and found to be free from defects.
The testimony of Fabian Gonyea that the pin should remain intact if a proper
inspection was performed is unpersuasive. First, Mr. Gonyea was not qualified
as an expert and his opinion is therefore to be accorded little weight. More
importantly, Gonyea testified that he had inspected bobsleds many times in the
past while acting as a driver and brakeman. When asked to describe the way in
which an inspection of the pin was accomplished he explained that the sled was
placed on its side and the pin was inspected visually. John Rand, the driver of
the bobsled in which the claimant was injured, testified that he inspected the
sled at issue on the morning of December 28, 2002 not only through a visual
check but also by physically manipulating the pin to ensure its soundness.
Taken together, the testimony of Mr. Gonyea establishes that a proper inspection
required only a visual inspection of the pin while the testimony of Mr. Rand,
and to a lesser extent Mr. Lawrence, established that the inspection conducted
on the morning of December 28, 2002 exceeded the process described by Gonyea
(visual inspection) to include a physical inspection of the pin. To the extent
the testimony of Gonyea established a standard by which the adequacy of the
inspection should be measured, Mr. Rand's testimony established that the
inspection conducted on the morning of the accident exceeded that standard.
Thus, the defendants provided proof of due care in the inspection of the bobsled
which is unrefuted in the record and sufficient to rebut any inference of
negligence arising from application of the doctrine of res ipsa
In Baumann v Long Is. R.R., supra, the Court held that although
the doctrine of res ipsa loquitur was properly invoked to establish
negligence for injuries suffered by a pedestrian when a railroad crossing arm
broke and fell on her, the defendants rebutted the inference of negligence with
proof that it exercised reasonable care in maintaining its crossing gate. In
that case, the crossing gate arm broke off its hinges and fell on top of the
plaintiff because a shear pin in the crossing gate broke. The defendants
produced testimony which established that the gate was subjected to periodic
inspections and had been inspected four days before the accident occurred. The
Court held therefore that the jury was free to reject the permissible inference
of negligence created by the doctrine of res ipsa loquitur.
Likewise, in Albert v State of New York (80 Misc2d 105, affd 51
AD2d 611) the claimants sought damages for injuries allegedly sustained when
the gondola cars in which they were passengers at Gore Mountain Ski Area fell
from their support cables. The Court held that although the doctrine of res
ipsa loquitur was applicable, the inference of negligence was rebutted by
proof of daily inspections which included a test of all safety systems and
Here, the inspection regimen required daily inspections of all the bobsleds
and the evidence established that a careful inspection of the bobsled in issue
was in fact performed on the morning of the accident. Although Mr. Gonyea
testified to an awareness within the "bobsledding community" that the pin which
holds the fifth wheel could break and cause a loss of steering, there was no
evidence to indicate that such a circumstance had occurred at the Mt. Van
Hoevenberg site prior to this accident or that the condition of the pin on the
subject bobsled or any of its related parts were worn or defective. In short,
there was no evidence that the defendants knew or should have known that the
bobsled was in any way defective or dangerous.
With regard to the claimant's motion to amend the claim to conform to the
formal proof presented at trial, CPLR 3025 (c) provides as follows:
Amendment to conform to evidence. The court may permit pleadings to be amended
before or after judgment to conform them to the evidence, upon such terms as may
be just including the granting of costs and continuances.
A motion to conform pleadings to the proof presented at trial is addressed to
the sound discretion of the Court and should be granted unless the non-moving
party demonstrates prejudice resulting from the proposed amendment (Murray v
City of New York, 43 NY2d 400; Gonfiantini v Zino, 184 AD2d 368).
Claimant's motion to conform the pleadings to the proof is based on the
contention that the defendants were negligent in allegedly failing to warn the
claimant that the pin on the bobsled might fail. Defendants argue in opposition
that the claim is barred by the statute of limitations and that significant
prejudice would result in the event the motion is granted. Neither argument
bears merit. Where a cause of action merely adds a new theory of recovery
arising out of transactions or occurrences already at issue, the statute of
limitations is no defense to the amendment (see, CPLR 203[f]; Presutti
v Suss, 254 AD2d 785). Inasmuch as the failure to warn theory is based on
the transactions and occurrence alleged in the original claim, it relates back
to the date the original claim was filed ( id.). Accordingly, the
statute of limitations is no bar to the relief requested.
Defendants argue that it would be prejudiced by the amendment because it did
not introduce the photographs of the warning signs into evidence. Claimant's
counsel indicated in his opening statement, however, that he intended to proceed
on a failure to warn theory and Messrs. Gonyea, Rand and Lawrence were present
at trial and presumably could have testified with respect to the various
warnings posted in and around the area. In addition, defendants placed the
claimant's awareness of the risks involved in bobsledding at issue through its
assertion that the claimant assumed the risks of engaging in the activity in
both the original (fourth defense) and amended (third defense) answers.
Moreover, the "Responsibilities of User and Waiver" form signed by the
claimant on the date of her accident was marked and introduced at trial as
defendants' Exhibit "A". Whether prejudice would arise as a result of
permitting a motion to conform to the proof under CPLR 3025 (c) is a sui generis
determination (Pascavage v City of Cohoes, 95 AD2d 969, 970). Under the
circumstances present here the Court finds that the defendants have failed to
establish surprise or resulting prejudice and the claimant's motion is therefore
Having determined that claimant's motion should be permitted, the Court finds
that the claimant failed at trial to establish the defendants' negligent failure
to warn of the potential danger posed by the pin which held the bobsled's
steering mechanism in place. Mr. Rand, the driver of the bobsled, testified on
cross-examination that he had been involved in approximately 20,000 bobsled runs
at Mt. Van Hoevenberg prior to that involving the claimant and had never had a
pin break during any of those runs. Mr. Lawrence, the brakeman, testified that
he had taken approximately 1,000 bobsled runs at Mt. Van Hoevenberg prior to
December 28, 2002 and never experienced a steering-pin failure. Mr. Gonyea as
well stated that he was unaware of any injuries to patrons of the Mt. Van
Hoevenberg bobsled run caused by a loss of control attributable to a broken
steering pin prior to the date of claimant's accident. In addition, while the
waiver form signed by the claimant (Exhibit A) is ineffective to insulate the
defendants from liability or to support a determination that the claimant
assumed the risk of injury (Yamada v State of New York
, Ct Cl, March 28,
2006 [Claim No. 109212; M-70756, UID 2006-032-028] Hard, J.,
), the Court finds that it did
provide the claimant adequate warning of the potential dangers involved in use
of the bobsled facility and equipment. The form reflects that "USE OF THE SPORTS
FACILITIES AND EQUIPMENT IS A HAZARDOUS ACTIVITY WHICH COULD RESULT IN PERSONAL
INJURY OR DAMAGE" and contains an acknowledgment that "use of the sports
facilities and equipment is a hazardous activity and that I could suffer
personal injury, which may be serious, as a user".
Given the absence of prior accidents at Mt. Van Hoevenberg involving a broken
or otherwise malfunctioning steering pin, as well as the unpersuasive nature of
Mr. Gonyea's testimony, it cannot be said that a specific warning regarding the
potential hazard posed by the steering pin was required under the facts of this
case (see, Reynolds v Atlantis Mar. World, LLC, 29 AD3d 770). The
warnings provided in the waiver, which the claimant testified she read and
understood, were sufficient under the circumstances to apprise her of the
potential dangers of participation in an activity the purpose of which is to
proceed down a mountainside on a sheet of ice at a high rate of speed.
Claimant's cause of action for implied warranty of fitness must be dismissed.
This cause of action "is restricted as a basis of liability to the manufacture,
sale or transfer of objects as distinguished from an abstract right to occupy an
amusement device" (Shaw v Fairyland at Harvey's, 26 AD2d 576; see
also Milau Assoc. v North Ave. Dev. Corp., 42 NY2d 482; Resnick v
Lebovitz, 28 AD3d 533; Lino Del Zotto & Son Bldrs. v Colombe,
216 AD2d 778).
In sum, the Court finds that the claimant failed to establish that the
defendants were negligent by a preponderance of the credible evidence received
at trial. Accordingly, the claim is dismissed. Let judgment be entered
December 5, 2006
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
.Page numbers in parentheses preceded by the
letters Tr. refer to the page numbers of the trial transcript.
.Mr. Rand testified that the "winter" season
started either December 18, 2002 or December 19, 2002.