New York State Court of Claims

New York State Court of Claims

SALVAGGIONE v. THE STATE OF NEW YORK, #2007-041-507, Claim No. 107589


Claim involving skier injured when she jumped off a moving skilift after failing to appropriately disembark is dismissed since the proof showed that the proximate cause of the accident was claimant’s own decisions and actions rather than defendant’s negligent failure to adequately observe the skiers exiting the chairlift.

Case Information

1 1.Caption has been amended to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption has been amended to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
SILVERMAN, BIKKAL & SANDBERG, LLPBy: Mitchell R. Bloch, Esq., of Counsel
Defendant’s attorney:
New York State Attorney GeneralBy: Glenn King, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 14, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 counterclockwise fashion.

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 time.

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 fallen claimant.

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 earlier.

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 opinion.

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 claimant’s accident.

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 seconds.

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 [1985]). 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 [1986]). “[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 2002]).

“[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 [1997], quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]).

Finally, the Third Department Appellate Division has held that:
“[T]here is undoubtedly some risk of injury inherent in entering, riding and exiting from a chairlift at a ski resort. However, we hold that the latter is not of such magnitude as to 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]).

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 [3] [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] [3]) 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 § 32-4.56 [d]).

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 #2006-028-017])[2].

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 [2000]).

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 [1999], 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 negligence”).

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 circumstance.

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 [1991]). 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 [2001]).

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 value.

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 [1998]). 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 the lift.

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 safety gate.

For all of the foregoing reasons, the claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

August 14, 2007
Albany, New York

Judge of the Court of Claims

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