New York State Court of Claims

New York State Court of Claims

YAMADA v. THE STATE OF NEW YORK, #2006-032-028, Claim No. 109212, Motion No. M-70756


Case Information

COURTNEY M. YAMADA The Court, sua sponte, amends the caption to reflect the only proper defendant, the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court, sua sponte, amends the caption to reflect the only proper defendant, the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Tabner, Ryan and Keniry, LLPBy: William J. Keniry, Esq.
Defendant's attorney:
The Hon. Eliot Spitzer, NYS Attorney GeneralBy: Glenn C. King, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
March 28, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court pursuant to CPLR 3212 for an order granting summary judgment as to liability on her claim. Defendant opposes this relief, contending that factual issues prevent this relief.

In April 2004, claimant commenced this action alleging that on January 22, 2004, she was injured while riding a skeleton on the bobsled run located on Mt. Van Hoevenberg at the Verizon Sports Complex [hereinafter the Complex] in Essex County. The Complex is owned by defendant and operated by a State entity, the Olympic Regional Development Authority. After issue was joined, claimant brought the instant motion.

The proponent of a motion for summary judgment carries the initial burden of production of evidence, as well as the initial burden of proof (see Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The moving party must tender sufficient evidence to establish, as a matter of law, the absence of any material issue of fact (id.). Once the initial burden has been satisfied, the burden of production shifts to the opponent of the motion, who must produce sufficient admissible evidence to establish the existence of a triable issue of fact (CPLR 3212 [a],[b]; see Winegrad v New York University Med. Center, 64 NY2d 851 [1985]). The evidence must, however, be viewed in the light most favorable to the opponent of the motion, and give that party every favorable inference (see McKinnon v Bell Sec, 268 AD2d 220 [1st Dept 2000]).

Turning to the merits, "[i]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendant['s] negligence are 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport'" (Morgan v State of New York, 90 NY2d 471, 485 [1997], quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]. Simply stated, a participant cannot assume risks that are concealed, or unreasonably increased risks (see Morgan v State of New York, supra). The injured party must, however, show "some negligent act or inaction, referenced to the applicable duty of care owed to him by [the] defendants, which may be said to constitute a substantial cause of the events which produced the injury'" (Benitez v New York City Bd. of Educ., 73 NY2d 650, 659 [1989 ]; see Morgan v State of New York, supra, at 485).

Here, claimant avers that she was training with the US skeleton team on the date of the accident. She further avers she began her run, after being cleared to do so, and as she approached turn 14, also known as the shakine, she struck two workers that were on the track. A skeleton is a small sled that is ridden face-first down the run. The record indicates that claimant was traveling at speeds in excess of 60 miles per hour during her run.

In addition to her affidavit, claimant also submits the deposition testimony of three employees, including the two whom she struck, David Desrocher and Philip Dever. Due to the wintery conditions on that day, Desrocher and Dever were assigned to clear the shakine area of the track of snow after each run. This entailed the employees hopping down onto the track in between sled runs, and one employee sweeping the snow so that the other could shovel it off the track. When the next sled was ready to go down the track, the start house would announce over a loudspeaker system and radio system, to clear the track. The announcer tracked the progress of the sled down the track, and the workers in the shakine would have about 30 seconds to hop up on the side of the track to allow the sled to do its run.

These employees each testified that they did not hear the announcement that a sled was on the track, and that they did not hear the sled until it struck them. Desrocher testified that it was his first time working on an active track and that he did not have any training for this duty. He stated that the start tower was supposed to announce that a sled was on the track, and either an announcement was not made or that he simply did not hear it. He further testified that although the track was equipped with loudspeakers, he did not hear the announcement, possibly because the loudspeaker closest to him was not working. Desrocher also stated that there is no lighting system in place on the track to visually alert workers that a sled is coming. Dever testified that he did not hear the announcement either, although he acknowledged that it was likely that he did not hear the announcement because he was talking to Desrocher.

Based on these submissions, the Court determines that claimant has met her initial burden that the risks of her sport were unreasonably increased by the presence of workers on the track as she was traveling down the track face-first at speeds in excess of 60 miles per hour. The Court further determines that, although the record contains inconsistencies as to whether the workers did not hear the announcement due to inattention, failure of working loudspeakers or a failure of the announcement to be made, all of these conditions would have been created by defendant's employees and, individually or collectively, a substantial factor in the accident. As such, the burden now shifts to defendant to oppose claimant's prima facie showing.

In opposition to claimant's submissions, defendant submits only an attorney affirmation. The affirmation states simply that claimant's submissions uncover the existence of several questions of fact as to what individuals may have been responsible for claimant colliding with Desrocher and Dever. This submission simply does not establish the existence of a triable issue of fact. As such, claimant is entitled to summary judgment. [1]

Accordingly, claimant's motion M-70756 is granted.

March 28, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1.Notice of Motion filed October 5, 2005;

2. Affidavit of Courtney Yamada sworn to October 4, 2005;

3. Affirmation of William J. Keniry dated October 1, 2005; Exhibits A-I annexed;

4. Affirmation of Glenn C. King dated October 26, 2005;

5. Reply Affirmation of William J. Keniry dated October 28, 2005.

[1]In making this determination, the Court did not consider claimant's "synopsis" of deposition testimony (Affirmation of William Keniry dated October 1, 2005; Exhibits D, F and H). The Court also notes the complete absence of any legal authority for the arguments advanced in the parties' submissions.