New York State Court of Claims

New York State Court of Claims

MACKEY v. THE STATE OF NEW YORK, and THE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, #2006-028-017, Claim No. 105649


Synopsis


Skier injured when her arm became entangled in chair lift cannot recover because there was no proof that any action taken by the lift operator would have changed the sequence of events or prevented her fall after her arm was released.


Case Information

UID:
2006-028-017
Claimant(s):
DENISE MACKEY
Claimant short name:
MACKEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, and THE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105649
Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
HACKER & MURPHY, LLPBY: John F. Harwick, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Frederick H. McGown, III, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 9, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In February 2001, the family of Denise and Paul Mackey went to Gore Mountain for a week-long ski vacation. In addition to the parents, the family includes three children: Camille, age 10; Paul, age 9; and Rosemarie (Rose), age 8. On their first day of skiing, February 20, Claimant Denise Mackey was injured while exiting the “North Quad” chairlift.

The chairs on this lift have a seating capacity for four skiers, and they travel around a “bull wheel” at the top of the lift before beginning their descent down the slope. If the bull wheel is compared to a clock, 6 o’clock would represent the point where a chair enters the wheel area and passengers are to stand up out of the chair as it reaches a flat unloading area. They then ski off, over a breakover point (where the flat area changes into a downward slope), and down the ramp, while the chair continues around the bull wheel, in a clockwise direction, with 12 o’clock being at the height of the ascent.

Claimant, who testified that she had been skiing for 20 years, said that she and her family had used this lift earlier in the day to reach the beginner trail. On the day in question Claimant was sitting between two of her children, Paul and Rosemarie. The chair behind them was empty, and two chairs back were Paul Mackey and the older daughter, Camille. As the chairs approached the top of the lift run, there was a sign saying to raise the safety bar, and Claimant complied. The chair then approached the “unloading area,” a flat area the same width as the chair, Claimant instructed her children to “scoot to the front” so that they could more easily stand and ski off the lift chair. Paul complied, but Rosemarie remain seated. Knowing that the area for unloading was short, Claimant turned to her right and placed her right arm behind Rose’s back to “swoop” her off the chair. This maneuver succeeded, and Rose then stood and skied off the unloading area.

Claimant, however, was unable to get off because, she stated, her right “wrist area” had become caught on the side of the chair. As the chair continued to move forward, she tried shaking her arm up and down to free it. The chair began to go around the wheel and as it entered approximately the 9 o’clock position, Claimant said that her skis began to go down the ramp and she felt her right arm start to rise, still caught in the lift chair. She then turned her body to the left, so that she could use her left hand to try to free her right arm. She was able to free her arm just as the chair reached approximately the 11 o’clock position (see Exhibit 4 [Claimant’s marks]).[1]

Claimant testified that, by that point, the ramp had tilted down so far that only the tips of her skis were touching the ground. She initially landed on her feet but then fell, landing on her right knee. At no time did the chairlift stop its forward movement, and, she stated, she was afraid that if she did not free her arm, the chair would simply continue around the bull wheel and take her down the mountain. When questioned, Claimant testified that she had no knowledge that the ski lift had a “safety gate” attached to the bull wheel that would stop the lift if a skier were still attached to the chair and prevent it from going back down the mountain (T, 138-141)[2].

Claimant’s husband, Paul Mackey, was riding approximately 100 feet behind Claimant’s chair (see Exhibit 6). He testified that he was able to see her only very briefly and saw her standing up and with her arm “caught somewhere in the right side of the chair,” just as her chair entered the unloading area.[3] He then lost sight of her, as her chair passed the crest. When he arrived at the unloading area, he saw her lying on her side on the ground. He stated that the lift operation did not stop until after he had gotten off the lift and summoned the ski patrol. In fact, it was a ski patrol member who eventually told the operator to stop the lift.[4]

Thomas Savage, Gore Mountain Lift Operation Supervisor at the time of this accident, testified that he was familiar with and had himself operated the North Quad ski lift. The primary duty of the ski-lift operators, he stated, was to oversee the safety of skiers who were loading onto and unloading from the lift. Lift operators underwent yearly training, attended an annual seminar, and were required to follow Gore Mountain’s “Lift Personnel Policy” (Exhibit 2 [version in effect in February 2001]). This policy stressed that lift operators or attendants were to pay attention to people exiting the lift at all times (T, 112). At the North Quad lift, the lift operators watched from a “shack” that was located at the top of the lift and had glass on three sides.

Savage also testified that it was not uncommon for a skier to get clothing or an arm caught in one of the chairs, estimating that it happened approximately once a month (T, 109). When that occurred, he said the lift attendant was to “[e]ither slow down the lift or stop the lift if, if it’s caught there for any length of time” (T, 110, 114). Often, he reported, skiers were still at the unloading area when this occurred and they were able to free themselves before heading down the ramp.

The ski-lift operator on duty when Claimant’s accident occurred was Thomas Butler. He testified that he would sit in the shack, facing the lift, in front of a control panel that had buttons for “stop,” “go,” “slow,” and “emergency stop.” It was his understanding of the relevant policy that he was to stop the lift only if a skier was in “imminent danger” (T, 120). Gore Mountain’s written policy in this regard (Exhibit 2) stated: “Always stop your lift if a skier is in danger.” Butler acknowledged that sometimes it was hard to judge when a skier is going to be hurt: “You only have a second or two from the time they unload until they’re gone” (T, 126). If they were in imminent danger, however, he would stop the lift “immediately.”

The unloading area at this lift was 10 to 12 feet long, and there was a “safety bar” at approximately the 3 o’clock position, beyond the apex of the turn. If a skier remained in the lift chair and reached this point, the safety bar would make contact with a circuit breaker and the lift would automatically stop. Butler explained that the skier’s contact with the bar would actually be made by his or her skis or lower legs.

Butler had no recollection of Claimant or of any of the particulars of her accident. He was able to confirm, through records, that the lift and the chair in which Claimant had been sitting were operating without problem on the day in question. However, he also noted on his Daily Log (Exhibit 3) that there were “lots of problems on unloading ramp – several injuries - patrol called.”

Expert Testimony: Claimant’s expert, Helge Lien, testified that in April 2003, in connection with his work on this case, he rode the North Quad chairlift several times, took measurements, and conducted some tests of the stopping distances and other functions. His measurements, accepted as approximations, were memorialized in a sketch (Exhibit 4; T, 156). The “stop speed” of the lift – the distance a lift chair moves after the stop button is pushed – he estimated to be between 25.5 and 27 feet at the fast speed, and around 21 feet at normal speed (T, 156). An abrupt stop is neither possible or advisable, because it would cause chairs all along the lift line to be jostled and start swinging, very likely unseating other riders. When asked, hypothetically, what would happen if a chair were at the breakover point when the stop button is pushed, he estimated that the chair would proceed more than half the way around the bull wheel before it was brought to a full stop (T, 191-193).

The length of the unloading area he measured as 8 feet, with the breakover going alongside the bull wheel for another 8 feet. He estimated the overall length of the unloading ramp, to the end of the bull wheel, to be 20.5 feet (T, 172). Based on these measurements and the speed that the lift moved in the normal setting, Lien calculated that it would take a chair about two and a half seconds to travel from the beginning of the unloading ramp, across that ramp, and across the 8 feet of the breakover to the tangent of the bull wheel (T, 183). The next chair would arrive at the unloading ramp six or seven seconds later (T, 187).

As to what the lift operator should be looking for, Lien stated that ideally the riders are supposed to come up to the unloading area, stand up “and nicely slide off the exit ramp” (T, 167). He acknowledged, however, that things rarely went that smoothly and therefore the attendant has to be consistently looking for potential problems. In his opinion, the lift should be stopped immediately “if something is different, irregular, or you can see something was wrong” (T, 168). He also said that it is not unusual for lift operators to slow it down, or at least pay particular attention, when they realize that someone will be coming off a chair with small children. There is no industry standard or requirement that this be done, however (T, 216).

If a problem develops, it is important for the lift operator to react quickly. Even if he isn’t able to entirely stop the lift before the chair goes beyond the breakover point, Lien explained, the change - the slowing - acts as a kind of “assurance” to the skier that he or she will not be going around the bull wheel and down the mountain; the deceleration tells the skier that something is happening. He could only conclude, therefore, that the operator wasn’t doing his job, that he didn’t pay any attention at all when Claimant and her children were getting off the lift (T, 181). On cross-examination, Lien acknowledged that the lift operator also has a responsibility to look at the other chairs on down the line to, among other things, make sure that they aren’t swinging excessively (T, 185-187).

Defendant’s expert, Thomas Sanford, was initially called as a fact witness by Claimant’s counsel to testify that he had reviewed the manufacturer’s manual for the lift installed at the North Quad, which recommended a flat unloading area of 12 feet (T, 233). In his opinion, however, the distance from the crest of the unloading ramp to the breaking point was greater than the 8 feet calculated by Lien, although he could not say precisely how much longer since he never took a measurement (T, 318, 331).

He testified that the lift operation had been tested, including the brake stopping distance, before the lift was put into operation in the fall of 1997. If the lift were operated at the maximum design speed (450 feet per minute), the stopping distance would be 25.31 feet (T, 278). Chairlifts of the type found on the North Quad lift are very common, and Sanford stated that in the 2002/2003 season there were 162 in use in the country (T, 285).

When asked to calculate the stopping distance of the lift, Sanford used a slightly different method of estimating the speed and determined that the chairs would have been traveling at 450.44 feet per minute, slightly slower than the 462 feet per minute arrived at by Lien (T, 311). At the slower speed, there would be 7.2 seconds between chairs. Under Sanford’s calculations the stopping distance would be 25.362 feet, as compared to Lien’s calculation of 21 feet. If a rider were to get into trouble as the chair comes over the crest of the unloading area (i.e., at the very beginning), and the stop button were pushed at that time, they would continue to travel for 25 feet before the lift came to a stop (T, 329).
APPLICABLE LAW and DISCUSSION
The duties of the owner and/or operator of a ski facility, and the individuals who participate in the sport at such a facility, are established by both common law and statutory law. Article 18 of the General Obligations Law (“GOL”), entitled "Safety in Skiing Code” and enacted in 1988 (L 1988, ch 711), specifically delineates the general duties of ski operators, passengers on a tramway, and skiers, and it outlines those duties with respect to certain inherent risks of the sport. The statute does not abolish applicable common law duties, such as the duty to warn of dangerous conditions (Sytner v State of New York, 223 AD2d 140, 143 [1996]), and in fact expressly provides that “[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law” (GOL § 18-107). With respect to chairlifts and tramways, the Code requires attendants to be trained to properly perform their tasks (GOL § 18-103[3][b]) and skiers to exercise prudence in using lifts (GOL § 18-104). No part of the statute specifically addresses the duties of ski-lift operators with respect to potential emergency stops, but one of the regulations enacted under the authority of the statute (12 NYCRR § 32-5.56) provides that the duties of a surface-lift attendant are to include “maintain[ing] surveillance of his/her area of jurisdiction” (subd [c][3]) and directs that “[s]hould a condition develop in which continued operation might endanger a passenger, the attendant shall stop the surface lift immediately and advise the operator” (subd [d]).

Under both the statutory scheme and common law, an owner/operator is relieved of liability for risks that are inherent in the sport of downhill skiing – including the risks associated with the use of a chairlift – when the participant in the sport is aware of, appreciates, and voluntarily assumes those risks (Morgan v State of New York, 90 NY2d 471 [1997]). Whether a skier is aware of and appreciates a particular risk must be assessed “against the background of the skill and expertise” of the participant (Maddox v City of New York, 66 NY2d 270, 278 [1985]; Hyland v State of New York, 300 AD2d 794 [3d Dept 2002]; see also deLacy v Catamount Dev. Corp., 302 AD2d 735 [3d Dept 2003] [question of fact as to whether a 7-year-old appreciated the risks of using a chairlift]).

On the other hand, the fact that most participants in the sport will be aware of the risks associated with entering, riding, and exiting chairlifts does not eliminate “all duty of care and thereby insulate the owner from claims of negligent supervision and training of the lift operator or negligent maintenance and operation of the lift itself since such negligence may unduly enhance the level of the risk assumed” (Morgan v Ski Roundtop, 290 AD2d 618, 620 [3d Dept 2002]). “[T]he critical inquiry is whether that condition is unique, constituting a hazard over and above the usual dangers that are inherent in the sport" (Simoneau v State of New York, 248 AD2d 865, 866 [3d Dept 1988][internal quotes omitted], citing Morgan v State of New York, 90 NY2d 471, 485, supra, and quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]; see also Huneau v Maple Ski Ridge, Inc., 17 AD3d 848 [2005]). Even if negligence on the part of the Defendant is proven, it must also be determined whether such negligence “unduly increas[ed] the level of risk assumed by [skiers]” (Salvaggione v State of New York, UID # 2006-032-011, Claim No. 107589, Motion No. M-70464 [Ct Cl 2006], Hard, J.).

In Morgan v Ski Roundtop, a passenger on the lift chair was unable to get off because her way was blocked by another skier who had fallen when attempting to exit his chair. While acknowledging that the skier had assumed risks inherent in both skiing itself and in the use of chairlifts, the Third Department denied summary judgment, holding that there was a question of fact as to whether the ski-lift operator had been properly trained or was negligent in failing to stop the lift under the circumstances presented.

The evidence in this case, particularly Butler’s failure to remember anything about the event and the fact that no effort was made to stop the lift until the Ski Patrol required that it be done, can support a conclusion that at the time Claimant’s wrist or arm became caught in the lift chair, Butler was not closely observing the passengers who were exiting the chairlift. Assuming, arguendo, that such inattention constitutes negligence on the part of the lift attendant, it is still necessary for any such negligence to have been the cause of Claimant’s injuries. On the evidence presented at trial, there is no probative evidence to establish that requisite causal connection.

Claimant’s own expert concluded that the overall length of the unloading ramp to the end of the bull wheel (i.e., to the 12 o’clock position) was 20.5 feet, and he also concluded that, at normal speed, the stopping distance was 21 feet, even more if the speed was greater. This means that if the stop button had been pushed the moment Claimant arrived at the beginning edge of the unloading area, the lift would not have stopped until her chair was at the 12 o’clock position at the “end” of the bull wheel. If, as occurred here, the stop button was pushed when Claimant ran into problems near the breakover point, her own expert acknowledged that the chair would proceed more than half the way around on the other side of the bull wheel (i.e., at the 3 o’clock position) before coming to a full stop.[5] As it was, Claimant was able to disengage her arm and leave the lift chair at roughly the 11 o’clock position before any action on the part of the lift operator could have brought the lift to a halt.

Consequently, the only difference that prompt action on the part of the lift operator would have brought about would have been to “signal” that someone was in charge and taking action. It is sheer speculation, however, as to what effect that difference would have had. Claimant might have ceased struggling and simply allowed the lift to carry her another 20 feet along, where she would have been higher off the ground than she was over the unloading area and breakover ramp (see Exhibit D), or she might have continued to free her arm, with precisely the same result as occurred. If, in fact, she did not know about the safety gate at the 3 o’clock position, realizing that the lift was stopping might well have eased some of her fear of being taken down the mountain, but again one would have to engage in speculation to determine how that lessened fear might have affected events.

Consequently, assuming, arguendo, that Butler was negligent in failing to keep close watch on skiers who were exiting the chairlift, Claimant has nevertheless failed to prove, by a preponderance of the credible evidence, that such negligence caused the injuries she suffered. The Chief Clerk is directed to enter judgment in favor of Defendant, dismissing Claim No. 105649.




November 9, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1]. The lift area had another sign, of which Claimant was aware, warning against loose clothing, but she was attired in ski pants, which zipped at the knees, a ski sweater, and a ski jacket, which cinched at the wrists. When she was treated at the first-aid station, they found no sign of damage on the ski jacket.
[2].All references to the Transcript are preceded by the letter T.
[3]. Defendant’s expert, Thomas Sanford, questioned whether it would have been possible for someone two chairs back to see anything of someone in the first chair, noting that there are at least fifty-four feet between chairs (T, 291). He later acknowledged, however, that a passenger in the second chair back could see the back of the first chair and, potentially, the arm of someone riding in it (T, 317).
[4]. At that point, obviously, the lift was stopped because a skier had fallen in the area where other skiers would be exiting the chair lift.
[5]. If she had reached that location without the stop button being pushed, the automatic safety gate would have been activated and the chair lift would have stopped approximately 20 feet further along.