New York State Court of Claims

New York State Court of Claims



Defendant's motion for summary judgment dismissing claim for injuries sustained while skiing was granted. Defendant established its compliance with the duties imposed pursuant to GOL § 18-106 (1) and the fact that they fulfilled their duty to make the premises as safe as they appeared to be. Claimant assumed risks inherent in the sport of downhill skiing including her collusion with a snow gun.

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:
The Gucciardo Law FirmBy: Thomas P. Ram, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 6, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendants move for summary judgment dismissing the claim on the grounds that it fulfilled its statutory duty to warn of known dangers which inhere in the sport of downhill skiing, that the claimant, Dominika Odehnal (claimant), assumed the risks inherent in the sport, and that the conduct of the defendants was not a proximate cause of the accident. Claimants oppose the motion on the grounds that discovery in this case has not been completed and that the claimant did not assume the risk of injury allegedly caused by colliding with a man-made structure located in close proximity to the ski slope. Claimant Dominika Odehnal was allegedly injured on March 7, 2004 while snowboarding with her husband, the claimant Marek Odehnal, at Whiteface Mountain. Claimant testified that the accident occurred when the edge of her snowboard caught in the snow causing her to fall and slide off the trail into a snow gun[1] which was located approximately one and one-half feet to two feet beyond the trail boundary (see defendants' Exhibit A, claimant's EBT transcript at p 36). At the time of the accident, the claimant was snowboarding down Excelsior Trail, which is designated as a "blue" trail, signifying a "more difficult" trail on a scale which includes the classifications of "easier", "more difficult", "most difficult" and "experts only" (see defendants' Exhibit C). Claimant was thirty years of age at the time of her accident and had snowboarded in the two winter seasons prior to the date of the accident. Claimant previously attended snowboarding lessons for four days in Vail, Colorado consisting of six hours of daily instruction and had previously snowboarded on the Excelsior trail at Whiteface Mountain in February of 2004.

Claimants arrived at Whiteface Mountain at approximately 10:00 am on the day of the accident and skied down the Excelsior trail two or three times prior to the accident at issue herein. Claimant testified that on the day of the accident she had observed snow guns on the sides of the trails (see Defendants' Exhibit A, p 38). Claimant's fall occurred while she was snowboarding close to the edge of the trail and, according to her testimony, she was unable to avoid the collision with the snow gun because she observed it only one-half second to one second before the collision occurred (see defendants' exhibit A, pp 32, 45). No warning was placed at the snow pipe, according to the testimony of the claimant and the affidavit of her husband (see defendants' Exhibit A p 35).

Claimants allege in substance that the defendants were negligent in failing to provide adequate warnings and safeguards to prevent injury and in improperly placing a metal pipe on or near the ski trail where it created a hazard (see claimants' bill of particulars, Exhibit B).

In support of their motion, the defendants first argue that they breached no statutory duty of care with respect to the warnings required to be provided to patrons of the facility. In this regard the defendants established their compliance with the statutorily imposed obligation to post warnings to skiers relative to the risks inherent in skiing (see General Obligations Law § 18-106[1]). The photographs attached to the defendants' motion papers (Exhibit E) do not establish compliance with the requirements of General Obligations Law § 18-106 (1) in that they are insufficiently clear to support the conclusion that the required warnings were posted. However, the claimant testified that she and her husband possessed a Whiteface trail map containing a skiers' responsibility code on the date of her accident. Although the claimants "looked at" the code contained within the trail map they did not read it. In addition, Ms. Odehnal testified that she observed (glanced) at the warning to skiers posted on the main message board located outside the lodge upon her arrival at Whiteface that morning. The affidavit of Jay Rand, the general manager at Whiteface Mountain, established that a skiers' responsibility code was posted on the main message board on March 7, 2004 and that a "warning to skiers" was posted at every point where lift tickets were sold on March 7, 2004. This proof is sufficient to establish that the defendant complied with the relevant duties imposed upon ski area operators pursuant to General Obligations Law § 18-106 (1), including the duty that tickets issued to patrons direct their attention to the "warning to skiers" (see Exhibit attached to Rand affidavit). Finally the defendant established through the claimant's own testimony that she failed to meet her responsibility to read, review and understand the warnings to skiers posted at the facility (see General Obligations Law § 18-106[2]). Thus, liability may not be premised upon the breach of a statutorily imposed duty of care.

Moreover, the defendants established that they fulfilled their duty to make the premises as safe as they appeared to be. The doctrine of primary assumption of risk operates to relieve a defendant of liability for risks inherent in a sport (see, Turcotte v Fell, 68 NY2d 432 [1986]). “[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see also Maddox v City of New York, 66 NY2d 270, 277 [1985]). A defendant’s duty with regard to sporting activities is to make the conditions as safe as they appear to be (Morgan, 90 NY2d at 484; Turcotte, 68 NY2d at 439). Thus, the risks assumed by the participant include those which commonly inhere in the sport, including any obvious condition involved in the construction of the playing field or court (see e.g. Colucci v Nansen Park, 226 AD2d 336 [1996]; Ciocchi v Mercy Coll., 289 AD2d 362 [2001]). "If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" (Morgan, 90 NY2d at 484, quoting Turcotte, 68 NY2d at 439). A defendant is relieved from liability once it is shown that the participant is aware of the risks involved, has an appreciation of the nature of those risks and voluntarily assumes them (Morgan, 90 NY2d at 484). “It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Maddox 66 NY2d at 278). The courts have recognized that the awareness of risk is not to be determined in a vacuum, but rather, is "to be assessed against the background of the skill and experience of the particular plaintiff,” Morgan, 90 NY2d at 486 (stating that although knowledge plays a role, inherency is the sine qua non).

With the enactment of Article 18 of the General Obligations Law, the legislature expressly recognized that "downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury ... which may be caused by ... man-made objects that are incidental to the provision or maintenance of a ski facility...(General Obligations Law § 18-101). It has therefore been repeatedly held that the risk of injury caused by a collision with a man-made object which is incidental to the maintenance of a ski facility and located outside the boundary of the ski trail is one assumed by the participants in the sport (see Tremblay v West Experience, 296 AD2d 780 [2002][the risk of impacting a snow barrier was a foreseeable consequence of plaintiff's participation in the sport of skiing]; Hyland v State of New York, 300 AD2d 794 [2002], lv denied 100 NY2d 504 [2003] [fence erected to hold snow on the ski slopes was man-made object incidental to the provision and maintenance of the ski facility]; Simoneau v State of New York, 248 AD2d 865 [1998] [wooden guide rail upon which the plaintiff fell was incidental to the provision or maintenance of the ski facility]). Moreover, it is well settled that the operator of a ski facility has no duty to pad structures located beyond the limits of the normal skiable terrain (see Nagawiecki v State of New York, 150 AD2d 147 [1989]; cf. Fabris v Town of Thompson, 192 AD2d 1045 [1993] [summary judgment dismissing the complaint was denied where question of fact existed regarding whether a post was located within the boundary of the ski trail); Basilone v Burch Hill Operations, 199 AD2d 779 [1993] [summary judgment dismissing the complaint denied where question of fact existed regarding whether the infant plaintiff assumed the risk of collision with a man-made obstacle located within the confines of the ski trail]). Here, the snow gun with which the claimant collided was incidental to the maintenance of the ski facility and located outside the boundary of the ski trail. Although the claimants now contend that the snow gun may have been located within the boundary of the ski trail, this assertion is belied by the claimant's own contrary testimony (see defendants' Exhibit A, claimant's EBT transcript at p 36).

Consideration of the claimant's experience as a snowboarder and the location of the unobscured snow gun lead to the conclusion that the defendants fulfilled their duty to make the premises as safe as they appeared to be.

Claimants' opposition to the motion on the ground that not all discovery is complete must fail. While CPLR 3212(f) provides that a motion for summary judgment may be denied if it appears that further discovery is essential to oppose the motion, mere speculation that further discovery may reveal facts necessary to oppose the motion is insufficient to warrant denial of the motion (Firth v State of New York, 287 AD2d 771 [2001] affd 98 NY2d 365 [2002]; Allen v Vuley, 223 AD2d 868 [1996]). Here, the claim has been pending for almost two years and the claimants failed to show how further depositions or paper discovery may reveal facts necessary to oppose the motion. Accordingly, the defendants' motion for summary judgment dismissing the claim is granted.

March 6, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 23, 2006;
  2. Affirmation of Kathleen M. Arnold dated October 23, 2006 with exhibits;
  3. Affidavit of Jay Rand sworn to October 20, 2006 with exhibits;
  4. Affirmation of Thomas P. Ram dated November 29, 2006 with exhibits.

  1. [1]A snow gun is a pipe used to spread man-made snow on the ski slopes.