Defendant moves this Court pursuant to CPLR 3212 for an order directing summary
judgment dismissing the claim based on the defense of assumption of risk.
Claimants oppose this relief, arguing that factual issues render summary
On January 18, 2003, claimant Nancy Salvaggione [hereinafter claimant] was
skiing at Belleayre Mountain, a ski area owned and operated by defendant. On her
first run of the day, claimant rode chairlift seven with her friend, Susan
Shannon, and a member of ski patrol, Leonard Smith. When the chairlift reached
the disembarkation point, claimant did not exit the lift and, as the lift went
around the bull wheel, claimant jumped off the chairlift. As a result, claimant
suffered a fractured left hip and other injuries.
In April 2003, claimants brought this action alleging that defendant's
employees negligently operated the chairlift, and a derivative claim on behalf
of claimant Charles Salvaggione for medical expenses and loss of consortium.
After joinder of issue, defendant moves for summary judgment contending that
claimant is an experienced skier and she assumed the risk of this type of
injury. In opposition, claimants allege that claimant did not assume the risk of
the chairlift operator failing to maintain his post during the accident and
failing to stop the lift.
"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]). The background, skill and experience of the
participant is assessed to determine whether he or she appreciates a particular
risk (see Maddox v City of New York, 66 NY2d 270, 278 ;
De Lacy v Catamount Development Corp., supra). A defendant,
however, is not insulated from all liability, and liability may attach when a
chairlift operator negligently operates the lift so as to unduly increase the
level of risk assumed (see Morgan v Ski Roundtop, Inc., 290 AD2d
618, 620 [3d Dept 2002]).
At the time of the accident, claimant was 52 years old and had been skiing
several times a year since 1974. On her first run of the day, claimant, a friend
and a member of the ski patrol rode chairlift seven up the mountain. At her
deposition, claimant stated that as the chairlift approached the area to
disembark, the three skiers prepared to exit by lifting the safety bar
[Affirmation of Mark A. Bethmann dated September 8, 2005; Exhibit A, 19]. In
further preparation, claimant positioned herself on the edge of the chairlift
seat and put her skis up in the air [id]. She did not exit the chairlift,
however, because as the chairlift reached the place to disembark, claimant's
friend fell getting off the chair [id. 20-22]. Not knowing if it was safe to go
around the bull wheel and proceed down the mountain, claimant yelled for the
chairlift operator to stop the lift. Before the chairlift completely turned
around the bull wheel, claimant jumped off the lift and fell approximately six
feet to the ground [id. 25-27]. Claimant stated that she could not move after
she fell and she was scared skiers would hit her because the chairlift continued
to operate [id. 30]. Claimant's friend, Susan Shannon avers that, after
claimant's fall, she directed skiers exiting the chairlift away from claimant,
and that she did not see anybody inside the chairlift shack operating the
Leonard Smith was the third person on the chairlift with claimant and her
friend. He testified at his deposition that he exited the chairlift without
incident and did not notice if claimant's friend had any difficulty exiting the
chairlift [Affirmation of Mark A. Bethmann dated September 8, 2005; Exhibit D,
21-22]. He also testified that he turned around when he heard claimant yell and
he then saw her fall off the chairlift [id. 28]. Initially, he did not recall
whether the chairlift was still running when he went over to claimant, but
assumes that it was not because he did not see any skiers going by him, nor was
he struck by the chairlift [id. 30]. He later recalled, however, that another
ski patroller was struck by the chairlift while assisting claimant [id. 31-33].
Moreover, Smith stated that claimant needed to be placed on a back board so he
gave a hand signal to the lift operator to stop the lift.
Contrary to this testimony, the operator of chairlift seven, Larry Martin,
testified at his deposition that, although he did not hear claimant scream, as
soon as she failed to exit the chairlift, he pushed the button to stop the
chairlift [Affirmation of Mark A. Bethmann dated September 8, 2005; Exhibit B,
42-44]. He stated that the chairlift traveled approximately 10 feet before it
stopped and claimant jumped off the lift before it stopped [id. 47]. Martin also
testified that Belleayre's policy prevents patrons from riding the chairlift
down the mountain wearing their skis, and that if a patron does not exit the
chairlift upon reaching the disembarkation point, the operator must then stop
the lift and, if further assistance is necessary, wait for ski patrol [id.
Thus, the testimony of claimant, Shannon and Smith that the lift station was
either unattended or the lift was not stopped within seconds of claimant's fall
conflicts with Martin's testimony that he stopped the lift within seconds of
claimant failing to disembark. Moreover, the alleged failure to stop the lift
would violate the policies and procedures of the ski resort requiring that the
lift be stopped upon the failure of a skier to exit the chairlift. Given this
conflicting testimony, a factual issue exists as to whether Martin negligently
operated the lift so as to unduly increase the level of risk assumed by claimant
(see Morgan v Ski Roundtop, Inc., 290 AD2d 618, 620 [3d Dept
2002]). As such, summary judgment is inappropriate.
Accordingly, defendant's motion M-70464 is denied.