On January 18, 2003, Nancy Salvaggione (claimant) visited Belleayre Mountain, a
facility operated by the State of New York, for a day of skiing. Claimant
described herself as a skier of intermediate ability, typically skiing two or
three times per season. Boarding chairlift No. 7 (also called a
“tramway” or a “ski lift” ) at Belleayre sometime
shortly before 10:00 a.m. for her first ski run of the day, claimant found
herself in a triple-seat chairlift. Sitting in the chair, claimant was on the
far right of the chair’s seat, considered the “outside” seat.
To her left, in the middle, was claimant’s long-time friend Susan Shannon.
On Ms. Shannon’s left, the “inside” seat, closest to the ski
lift apparatus, was occupied by a volunteer ski-patrol member Leonard Smith.
The chairlift seats, ascending, were on the right side of a cable and bull wheel
system which brought the triple-seat chairs up the mountain and which moved in a
If the bull wheel of chairlift No. 7 is compared to a clock, skiers would
encounter a flat unloading area and prepare to dismount some modest distance
(3.5 feet, per Exhibit M) before the three o’clock position, as the lift
moves counterclockwise toward two and one o’clock. Skiers leave the
chairlift entering the three o’clock position by skiing down a ramp
sloping away from the flat unloading area. The ramp sloping away is wide enough
to accommodate all three skiers in the chairlift who would disembark at the same
As claimant’s chairlift approached the three o’clock position, her
friend Susan Shannon preceded her off the chairlift seat. Ms. Shannon testified
that in exiting the lift she briefly lost her balance and moved to her right,
placing her in front of claimant. Claimant testified she observed Ms. Shannon
struggling to maintain her balance and that these efforts blocked her path
leaving the lift. She remained on the lift as it passed the point to disembark
and ski off the ramp.
Claimant further testified that while these events were transpiring, she
yelled, “oh my God Sue” and “stop, stop.” Ms. Shannon
also testified hearing claimant yell “oh my God Sue.”
Ms. Salvaggione testified that she saw no ski lift operator in the unloading
zone and that once her chair passed the three o’clock position with her
still on it, the lift never slowed or changed its speed. She testified that
“I just kept going” and “I was panicky.” As the chair
began turning to the left, determining the lift was not slowing and
“concerned” about riding the lift down the mountain, she
“voluntarily left” the lift. At this point, she was 6 feet above
the ground. Claimant landed on her left side, and came to rest with her head
pointed down the mountain. Injured, she was unable to get up.
Mr. Smith and Ms. Shannon testified that for a period of time following
claimant’s fall, while tending to her, the chairlift continued to run.
Ms. Shannon testified that it was necessary for her to direct skiers
disembarking the lift away from where claimant lay prone. Mr. Smith, a volunteer
ski patroller, indicated that claimant was on the ground in the one
o’clock position, relative to the bull wheel.
Given claimant’s testimony that she left the lift as it was turning left
(moving counterclockwise), and that, landing on her left side, her head was
pointed down the mountain, that Ms. Shannon testified that while tending to
claimant she directed skiers leaving the lift (at the three o’clock
position) away from claimant lying on the ground and that Mr. Smith identified
claimant’s position on the ground as being at one o’clock, the Court
finds as a matter of fact that claimant jumped from the moving lift while her
chairlift seat was in the one o’clock position.
Mr. Smith further testified that while tending to the fallen claimant, the lift
continued to operate for over one minute. Both he and Ms. Shannon testified that
a third party, another ski patrol member also coming to the aid of claimant, was
struck by a portion of one of the chairlift seats of the still moving chairlift
and sustained a slight injury. At some point subsequent to these events, Mr.
Smith made eye contact with the ski-lift operator and hand signaled the lift
operator to stop the lift, and the operator complied.
Ms. Shannon further testified to the following: At no time prior to or after
claimant’s fall did she see anyone in the chairlift operator’s booth
(immediately adjacent to the unloading area), that “half a dozen or
more” chairlift seats passed by as she was tending to the claimant, and
most relevantly, that the chairs were passing 6 feet above the position of the
Claimant testified earnestly and in a straightforward manner. Beyond the
testimony previously detailed concerning events leading to and subsequent to her
riding and jumping from the chairlift (although never using the word
“jump”, claimant acknowledged her actions were voluntary, confirmed
in response to a question that no one told her to jump from the lift, that she
“was panicking”, that “she took a chance” and that she
had a fear of riding the chairlift back down the mountain), she briefly
testified to certain other relevant issues.
Upon arriving at Belleayre Mountain on January 18, 2003, claimant acknowledged
seeing a sign, commonly referred to by various witnesses as the “skier
code of responsibility”, depicted in Exhibit D, although she allowed she
“probably didn’t read” it. The third paragraph of that code,
setting forth those things skiers are required to know and required to observe,
shown more closely in Exhibit E, requires passengers, “[t]o board or
disembark from passenger tramways only at points or areas designated by the ski
area operator.” She also acknowledged purchasing a lift ticket upon which
was printed warnings concerning the dangers of skiing, although no testimony or
exhibits were received specifying the detail of those warnings. Finally,
upon cross-examination, she acknowledged the voluntary nature of her decision to
jump from the lift after deciding not to ski off at the unload area just moments
Claimant’s final witness was Steve Bernheim, called as an expert in
sports and recreation and in risk management. The Court found Mr.
Bernheim’s testimony to be of limited probative value. Mr. Bernheim has
never been to Belleayre Mountain (and therefore, obviously, took no
measurements), was unfamiliar with various distances at the site and was
unfamiliar with the physical layout of the area of claimant’s accident
other than by reference to photographs admitted into evidence. He therefore,
and perhaps for other reasons, testified in a very general manner, frequently
qualifying his statements. His testimony about the events of
January 18, 2003 was often couched, expressed in a manner of surmise, and/or
degree of likelihood, rather than through direct, unqualified expressions of
Mr. Bernheim observed that a portion of Exhibit 3, which sets forth the
policies and procedures of ski-lift operations at Belleayre, obligates a
ski-lift operator to “stay at station within 6 feet of stop
switches.” Mr. Bernheim did opine that based upon his review of the
defendant’s policies and procedures, and his review of the various reports
and accounts of the events at Belleayre Mountain of January 18, 2003, that the
defendant had acted negligently in failing to bring chairlift No. 7 to an
appropriate and timely stop. Mr. Bernheim acknowledged, upon cross-examination,
that under the skier code of responsibility, it is the obligation of a skier to
disembark a ski-lift only in those areas indicated by the ski-area operator.
The only witness for the defendant, Thomas Sanford, was qualified as an expert
with over 30 years of experience in the sale, manufacture, installation and
maintenance of ski-lift equipment, having been appointed to the New York State
Tramway Council (a group used by New York State to advise on issues involving
the safe construction and maintenance of tramways), with experience in training
ski-lift operators and those who maintain ski lifts. Further, Mr. Sanford has
conducted 30-40 field “load” tests of newly constructed tramways,
testing them at full capacity.
In preparation of his testimony, in addition to visiting Belleayre Mountain
monthly over the course of his current employment of six years for a company in
the business of manufacturing and installing tramways, Mr. Sanford twice
specifically visited the site of claimant’s accident, taking measurements
and reducing information gathered to diagrams he prepared and which were
admitted, without objection, as Exhibits M, N, O, P and Q. He testified that
the physical layout of chairlift No. 7 was, at the time of his visits, the same
as existed on January 18, 2003.
Mr. Sanford, clearly conversant with tramway construction and operation
generally, and with the specifications and capabilities of Belleayre Mountain
chairlift No. 7 specifically, also reviewed the reports and accounts of
He testified that chairlift No. 7 was constructed with a manufactured operating
speed of 500 feet per minute and that on January 18, 2003, it was being operated
at 85% of the manufactured capacity, or 425 feet per minute. Accordingly, on
the morning of claimant’s accident, Belleayre Mountain chairlift No. 7 was
being operated and was moving at the rate of 7.1 feet per second.
Mr. Sanford further testified that the lift had a “stopping
distance” of 14 feet, which means that a chairlift seat on chairlift No. 7
would travel 14 feet from the time a device (e.g. a button or switch) was
activated or depressed to stop the lift and the time the lift came to a stop.
Another way of expressing this observation would be that from the time a stop
switch was tripped, chairlift No. 7 would not come to a stop for two
Mr. Sanford indicated the bull wheel on chairlift No. 7, at the site of
claimant’s accident, was a circle with a 12-foot diameter, making the bull
wheel’s circumference between 37 and 38 feet, as the circumference of a
circle can be determined using the formula
(3.14) times diameter. Accordingly, a one-quarter turn of that wheel,
representing the counterclockwise movement from the three o’clock position
to the twelve o’clock position on the bull wheel, would result in a travel
path of approximately 9.5 feet. In other words, movement from each clock
position to the next would result in a travel path of slightly more than 3 feet.
These calculations are schematically depicted in Exhibits M and 0 when the
exhibits are viewed vertically, not horizontally (to harmonize the drawings with
the face of a clock).
Notwithstanding that it has the appearance of an oval in the relevant exhibits,
Mr. Sanford reiterated and confirmed the bull wheel of chairlift No. 7 is, in
fact, a circle. Based upon the testimony of several witnesses, it is in the
three o’clock position where a skier will successfully complete the
departure from the ski lift and ski off the sloping “ski-off” ramp.
“To establish negligence, [claimant] must demonstrate the existence of a
duty to exercise reasonable care owed by defendant, a breach of that duty and
resulting injury to [claimant]” (Hidden Meadows Dev. Co. v Parmelee's
Forest Prods., 289 AD2d 642, 643 [3d Dept 2001]).
Further, “[i]t 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
Dev. 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 ). The “duty under such circumstances is a duty to
exercise care to make the conditions as safe as they appear to be. If the risks
of the activity are fully comprehended or perfectly obvious, plaintiff has
consented to them and defendant has performed its duty” (Turcotte v
Fell, 68 NY2d 432, 439 ). “[I]t is not necessary that the
injured [claimant] foresee the exact manner in which . . . her injury
occurred” (Tremblay v West Experience, 296 AD2d 780, 781 [3d Dept
“[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 defendants’
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 , quoting Owen v R.J.S. Safety
Equip., 79 NY2d 967, 970 ).
Finally, the Third Department Appellate Division has held that:
Based upon the foregoing, the Court finds that claimant did not voluntarily
assume the risk of defendant’s alleged negligence in failing to adequately
observe the disembark point of the ski lift, and in thereafter failing to
promptly stop the lift when claimant failed to disembark as required, and the
claim may not be dismissed on that basis.
General Obligations Law Article 18 also describes the duty of ski operators.
The statute does not supplant the common-law duties described above, instead
providing 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 regard to chairlifts and tramways,
the Code requires that attendants be trained to properly perform their tasks
(GOL § 18-103  [b]). The statute does not specifically address the
duties of ski-lift operators concerning emergency stops. However, one of the
regulations enacted pursuant to the statute requires a lift attendant “to
maintain surveillance of his/her area of jurisdiction” (12 NYCRR §
32-4.56 [c] ) and further directs that “[s]hould a condition develop in
which continued operation might endanger a passenger, the attendant shall stop
the aerial lift immediately and advise the operator” (12 NYCRR §
Testimony was offered showing that the lift continued to operate for over one
minute after claimant lay injured on the ground. Both Mr. Smith and Ms. Shannon
testified that a ski patrol member attempting to assist claimant was struck by a
moving chairlift seat and sustained a slight injury. The lift was not stopped
until Mr. Smith, while tending to the injured claimant, made eye contact with
the ski lift operator and signaled the attendant to stop the lift.
Defendant’s failure to promptly stop the lift supports a conclusion that
the attendant failed to adequately observe the skiers exiting the lift, contrary
to the regulations (see Mackey v State of New York, and the Olympic
Regional Development Authority
, [Ct Cl, Sise, J., UID
However, “[t]he issue of whether a defendant's negligence was a proximate
cause of an accident is separate and distinct from the negligence determination.
A defendant may act negligently without that negligence constituting a proximate
cause of the accident” (Ohdan v City of New York, 268 AD2d 86, 89
[1st Dept 2000], lv denied 95 NY2d 769 ).
Regardless of the level of vigilance of the defendant in operating the ski
lift, whether total or totally lacking, the proximate cause of claimant’s
injuries were the voluntarily made decisions of claimant herself, first in
choosing not to disembark the lift at the appropriate location, as required, and
second, in choosing to jump from the lift from a height of 6 feet. This second
decision, made in a self-described state of panic, was made hastily and involved
deciding to jump from a ski lift moving 7 feet per second while the lift was
angling into a left turn arc, positioned 6 feet over a snow covered, uneven
mountain surface, and while wearing long skis (see Egan v A.J. Constr.
Corp., 94 NY2d 839, 841 , where “[claimant’s] act of
jumping out of a stalled elevator six feet above the lobby floor after the
elevator’s doors had been opened manually was not foreseeable in the
normal course of events resulting from defendants’ alleged
The consequence of not jumping, of simply remaining on the lift, did not
justify or compel claimant’s decision. Claimant’s decision cannot,
for example, be compared to having to quickly decide whether to leap from the
second story of a burning building or to another analogous exigent or emergency
Claimant thus finds no relief from application of the emergency doctrine, which
provides that “when an actor is faced with a sudden and unexpected
circumstance which leaves little or no time for thought, deliberation or
consideration, or causes the actor to be reasonably so disturbed that the actor
must make a speedy decision without weighing alternative courses of conduct, the
actor may not be negligent if the actions taken are reasonable and prudent in
the emergency context” (Rivera v New York City Tr. Auth., 77 NY2d
322, 327 ). Further, the emergency faced by claimant was of her own making
in failing to timely disembark the lift and “the emergency doctrine has no
application where, as here, the party seeking to invoke it has created or
contributed to the emergency” (Sweeney v McCormick, 159 AD2d 832,
833 [3d Dept 1990]; see Caristo v Sanzone, 96 NY2d 172, 174
Given the Court’s determination that claimant jumped from the lift in the
one o’clock position, and therefore had traveled no more than 9 or 10 feet
past the point where skiers begin to ski off the lift, and given further that
the lift was traveling at 7.1 feet per second, it is the finding of the Court
that claimant jumped within 1 to 1.5 seconds after passing the area to disembark
while yelling her concerns. Even had the ski-lift operator observed all of the
events unfolding, instantaneously assessed the situation and decided to stop the
lift, and instantaneously depressed the lift stop button (and testimony was
heard to only require the operator, as a matter of written policy, to be within
6 feet of the stop button at all times), the lift would have traveled 14 feet,
its manufactured stopping distance, before coming to a stop. The claimant
decided to, and did in fact, voluntarily jump from the lift within the time and
distance before which, under perfect circumstances, the lift would have stopped.
Accordingly, it was claimant’s decisions and actions, irrespective of
defendant’s actions or inactions, which were the proximate cause of the
accident and her resulting injuries.
At trial, there were a number of attempts to elicit testimony from the claimant
as to what her decision and actions would have been had she, after passing the
area to disembark the lift, felt the chairlift slowing. Each such attempt
resulted in a sustained objection. Even had such testimony been received,
presumably to hear claimant testify she would have chosen to remain on the lift
if she had discerned it was slowing (assuming she would have, in her panicked
state), such testimony would have been pure speculation and would have had no
more probative value than testimony by claimant that she would have decided, in
such an instance, to do any number of things. Such testimony is of no probative
Simply stated, whether claimant would have chosen to remain on the lift had
she discerned it slowing is not, and cannot be, known, and to suggest that would
have been her choice is outright speculation. Claimant was required to
“prove it more likely or more reasonable that the injury was caused by [a]
defendant's negligence rather than some other cause” (Oliveira v County
of Broome, 5 AD3d 898, 899 [3d Dept 2004]; see Gayle v City of New
York, 92 NY2d 936, 937 ). Claimant failed to prove that any factor,
other than her own decisions and actions, caused her injuries (Atwell v State
of New York, 229 AD2d 849, 850 [3d Dept 1996]).
Further, much was made at trial of the existence, and working condition, of
Belleayre Mountain chairlift No. 7's “safety gate” and that claimant
was unaware of its existence and function. The “safety gate” is a
“tripping device” (the Court’s terminology) which, when
contacted by the legs or ski equipment of a skier still on the lift, will
automatically bring the chairlift to a stop. Testimony and photographic
exhibits demonstrated that its location on chairlift No. 7 was in the eleven
o’clock position, a point beyond where claimant had already jumped from
Attempts were made to suggest that the safety gate was not checked by defendant
to make sure it was in proper working condition on the day of the accident. The
Court found this line of inquiry not relevant to, nor dispositive of, the issues
necessary to determine the merits of the claim, because, simply, evidence
demonstrated the claimant never tripped the safety gate and, in fact, jumped
from the lift before reaching the safety gate’s location.
Claimant testified to being unaware of the gate’s existence or function.
Further testimony was also received that claimant was not notified by defendant
of its existence, and that a ski-lift operator, as a matter of good and safe
practice, should make known, through signage or in some other manner, the
existence and nature of a safety gate to its patrons. Without at all
considering whether, or determining that, defendant had any obligation to
provide such information to claimant, the Court found such testimony to also
lack probative value. As with the issue of claimant’s hypothetical course
of conduct had she felt the lift slowing, what she would have thought and what
she would have decided and what she would have done (under great stress) with
information about the safety gate had she possessed it, is pure speculation.
Moreover, claimant admitted that she hadn’t read the posted “skier
code of responsibility” and there is no basis to believe that she would
have read a sign intended to advise her of the existence and function of the
For all of the foregoing reasons, the claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.