New York State Court of Claims

New York State Court of Claims

HAZLITT v. THE STATE OF NEW YORK, #2008-039-105, Claim No. 110914


Following a trial, the Court concludes that claimant has failed to prove by a preponderance of the credible evidence that the negligence of defendant was the proximate cause of her fall. Claimant argued that defendant was responsible for her injuries as a result of the negligent acts of a part-time ski instructor at Gore Mountain who claimant alleges was employed by defendant at the time of the collision with claimant. The evidence presented establishes that the ski instructor’s conduct on the occasion in question was reasonable. Accordingly, the Court need not determined the status of his employment at the time of the accident. Additionally, the Court concludes that the collision was a risk that claimant assumed by participating in such an activity and was inherent in the sport of skiing pursuant to General Obligations Law § 18-101.

Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK1 1.The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

James H. Ferreira
Claimant’s attorney:
John M. Silvestri, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael Rizzo Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 20, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Karin Hazlitt alleges that on February 20, 2005 she sustained personal injuries and damages as a result of an accident at approximately 9:05 A.M. on the Hawkeye Ski Trail at Gore Mountain in Warren County, New York. Claimant essentially contends that the State was responsible for her injuries as a result of the negligent actions of Tom Miller, a part-time ski instructor at Gore Mountain, who claimant argues was employed by the Olympic Regional Development Authority (“ORDA”), a state authority, at the time of his collision with claimant on a Gore ski trail. Defendant asserts that the evidence proffered at trial demonstrates that claimant’s actions were the sole proximate cause of the accident, that Miller was not an ORDA employee at the time of the accident and that the doctrine of primary assumption of risk bars any finding of liability against the State under these circumstances.

The trial of this claim was bifurcated and this decision therefore addresses solely the issue of liability. Claimant was the only witness to testify in support of her claim, and defendant called three witnesses in defense of the claim. Exhibits received into evidence included photographs, a trail map, an incident report, accident reports, season pass applications and payroll records.

Claimant testified that at the time of her accident she had been skiing since 1980. She had season passes for Gore Mountain for the four or five seasons preceding her accident and considered herself an “advanced intermediate” skier. She generally skied “blue squares and black diamonds.” She arrived at the mountain at 8:00 A.M. on February 20, 2005. She took the gondola to the top of Bear Mountain and skied down the Uncas trail. She then took the Straight Brook chair to the summit, proceeded to ski down the left side of the slope to the beginning of the Chatiemac trail (hereinafter “Chatiemac”), and turned left onto the Hawkeye trail (hereinafter “Hawkeye”). The accident occurred during her fourth or fifth run down Hawkeye.

Claimant stated that just prior to her fall she had skied down the beginning of Chatiemac and turned left onto the cutoff trail leading into Hawkeye. At the point where the trail from Chatiemac meets the main Hawkeye trail, she looked up to the top of Hawkeye and saw two other people wearing ski instructor coats stopped at the top of the trail. She proceeded down Hawkeye on “skier’s right” and stated that after she made a “90-degree turn to ski down to the lower section, I was hit from behind.” Claimant remembers a “hard impact”, then falling forward and not being able to get up. Claimant acknowledges that claimant’s exhibit 1, a photograph admitted into evidence, shows an “X” delineating the approximate location of the impact.

During cross-examination, claimant acknowledged the risk of personal injury arising from skiing and that such risk is indicated on the season pass applications. She also stated that she was familiar with the skier’s responsibility code, and that the code provides, among other things, that skiers below have the right of way and that skiers must ski in control. She stated that Hawkeye is a black diamond trail and one of her favorite trails. She described it as having a steep face, that levels off, has a 90-degree turn and then another steep face. The accident occurred on the part of the trail that leveled off (see Claimant’s exhibit 1, supra).

Claimant agreed with the assertion that she got on the gondola at 8:18 A.M. and reached the Straight Brook chair at approximately 8:30 A.M. The lift to the top of Hawkeye takes approximately five minutes. She repeated that the accident happened on her fourth or “very possibl[y]” fifth run down Hawkeye at approximately 9:05 A.M. She described her skiing speed as “fairly average.” She later stated that she had participated in some downhill ski races in 2003 and 2004 at Gore.

Claimant repeated that she first saw the two individuals she referred to in her direct testimony at the point where Chatiemac meets Hawkeye. The two individuals were “further up the hill at the top of Hawkeye.” She remembered “seeing two ski instructors behind me.” She did not see the impact occur, but saw a person wearing a ski instructor’s jacket down in the snow after the impact. She saw another person standing “slightly downhill” from where the accident occurred. She stated that the accident occurred in a flatter area where skiers tended to congregate. She stated that prior to entering the area where the accident occurred, she would have lessened her speed from the steep area in order to make the turn. She agreed that the accident happened very fast. Her accident report prepared the morning of the incident and admitted into evidence as defendant’s exhibit B, states in her own words that another skier “cut me off.” During cross-examination, she stated that she did not remember if she actually saw the other skier cut her off.

Following the conclusion of claimant’s proof, the defense moved to dismiss the claim based upon claimant’s failure to establish a prima facie case of negligence. The court reserved on the motion and defendant called Roger Thomas Miller to the stand.

Miller, an attorney, testified that in February 2005, he was a part-time ski instructor at Gore Mountain. He stated that he has been a ski instructor for over 20 years, is part of the Professional Ski Instructors of America (“PSIA”), and is a Level II Certified Instructor. At Gore Mountain, he would teach on weekends. His practice was to arrive at Gore and sign in by 8:00 A.M. He would then teach lessons assigned to him. If no lessons were assigned to him, he would engage in “free skiing” which apparently means skiing on your own. He stated that the “only obligation is to check in on a regular basis if you’re on private rotation or to show up for the lineups, they are called, which is the group lessons.”

On the morning of February 20, 2005, during his free skiing between 8:00 and 9:30 A.M., he skied Hawkeye, a black diamond trial. This trail proceeds down a steep headwall, then levels out, makes a sharp left and continues down where it terminates when it intersects with another trail. He was skiing alone and did not see any other ski instructors while at the top of Hawkeye. He chose Hawkeye because he was preparing for his Level III PSIA exam and needed to practice turns. He was not directed by Gore staff to take the Level III exam nor was he attaining that certification required as part of his job. He skied to the top of the headwall, stopped and waited for the trail to be clear both above and below him, as he did not want the flow of his turns to be interrupted. He then picked an area suitable for making turns and proceeded down making “short radius turns.” Miller stated “I was not going fast at all. . . . Speed control is a very big issue . . . and that’s one of the reasons they put you on a steep slope like that, they want to see that you can make these turns and keep your speed under control and constant.” He compared his speed during these maneuvers to a “brisk walk or a jog.” He repeated that no one was in front of him when he made his turns. At the end of the headwall, where the trail levels off, he stated that he was gliding to a spot on the side of the trail where he could look back and evaluate his turns. As he was gliding, he was struck from behind. Miller stated that claimant’s exhibit 1, admitted into evidence, shows a red “X” where the accident occurred and a red circle delineates where he was heading.

Miller stated that he was struck “from behind” on his right buttock and right shoulder blade. He was ejected from his ski bindings, did a somersault in the air, two more somersaults on the ground, traveled approximately 20 to 30 feet and then came to his feet. He observed the claimant lying on the ground and crying. He stated that he was gliding in a “standing upright” position when the collision occurred. He also observed another person, Bill Coton, at the scene of the incident. Coton approached him from the front but Miller stated that Coton was not in front of him when he was skiing. Miller filled out an incident report, received into evidence as defendant’s exhibit C. The report states, among other things, that he “was hit from behind”, that Coton was standing at the “edge of [the] trail” and that claimant was moving “[at] a high rate of speed, knocked me out of my skis to [the] ground, [and] came to rest 20-30 feet away.”

During cross-examination, Miller acknowledged that from the time he got off the lift until he reached the section on Hawkeye where he leveled and straightened out, he could have passed someone or someone could have been skiing in front of him. Miller stated that from the portion of the Hawkeye trail below the headwall - the very steep part before it levels off - no one was in front of him. He agreed that if he did collide with a skier in front of him or skied out of control, that would violate the skier’s code of conduct. As he went down Hawkeye and practiced his turns, his focus was technical expertise and not speed.

During redirect, Miller stated that he was looking ahead as he practiced his turns because you can fail the exam if you look down at your skis or at the ground. At the time of the accident, he had completed his turns, had straightened up and had been gliding for three to four seconds before the collision.

Defendant also called William Coton, a resident of the Town of Knox and a part-time ski instructor for 22 years at Gore Mountain. He was at Gore on the morning of February 20, 2005. Coton stated that he arrived at the mountain at 7:30 A.M., went to the ski school room, changed to ski and then went free skiing before the morning lineup. He took the gondola to Bear Mountain, and then a ten minute ride up the Straight Brook chair lift and headed toward Chatiemac. He was not paid, required or directed to participate in free skiing. He and Miller were “acquaintances” who “talked on occasion.”

Coton was not skiing with Miller on the morning of February 20, 2005. He skied halfway down Chatiemac, crossed over and entered into Hawkeye at the bottom of the headwall. Coton stated that at that point the trail “makes an immediate left-hand turn” and that the slope does level off “[a] little bit” at the bottom of the headwall. At the point where he was taking Chatiemac into Hawkeye, he described being on a “corner” and could see the section that levels off. He saw Miller “[m]omentarily before the impact” and that Miller was in the “middle of the trail” making the 90- degree turn below the headwall on the flatter portion. Miller was skiing “relatively slow” and in control. In the moments prior to the accident, Coton did not see any skiers between him and Miller, or in front of Miller. He observed both skiers come together.

He recalled that the accident occurred as follows: “Mr. Miller was in the middle of the trail, he had just made the ... left-hand turn onto the more gentle terrain. He was skiing relatively slow and I saw him - saw someone collide into the backside of Mr. Miller and he ejected from his skis, and landed a considerable distance from where the impact occurred. ... probably 12 -15 feet” from the point of impact. Coton estimated that he was about 20 feet away from where the accident occurred. In a written accident report given later that morning, and received into evidence as defendant’s exhibit B, Coton stated that “[the] other skier hit ski school ‘Tom Miller’ in the back. Knocked Tom out [of his] skis [sic], and [a] woman fell also.”

During cross-examination, Coton stated that when he dressed after arriving at the mountain, he put on a blue ski instructor’s jacket with an ORDA symbol on it, which was to be worn when teaching lessons. He made the red circle on claimant’s exhibit 1 to delineate where he was standing at the time he saw the collision. Prior to the accident, he was stopped for a couple of seconds “facing directly at where the collision was.” Miller was “generally upright” and not in a crouched position when he first saw him. The trajectory of Miller’s body “could only happen from a pretty hard collision in the backside.” During redirect, he stated that before the impact, claimant was above Mr. Miller on the trail, and that claimant “ran into Tom Miller.”

As a final witness, defendant called Trudy Stanton, the office manager for Gore Mountain since the mid-1980's. She is responsible for payroll, retirement system, health insurance and accident reports and testified as to whether Miller was an employee on February 20, 2005. Defendant rested at the conclusion of Stanton’s testimony and renewed its motion to dismiss for failure to establish a prima facie case. The Court reserved on the motion.

It is well settled that in order to establish a prima facie case of negligence, “ ‘a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff’ ” (Comack v VBK Realty Assoc., Ltd., 48 AD3d 611, 612 [2008]; see also Solan v Great Neck Union Free School Dist., 43 AD3d 1035 [2007]). “The threshold issue in any negligence action is whether the defendant owes a legally recognized duty of care to the plaintiff” (Lodge-Stewart v State of New York, 45 AD3d 939, 940 [2007], lv denied 10 NY3d 703 [2008]). “ ‘Without a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm’ ” ( id., quoting Lauer v City of New York, 95 NY2d 95, 100 [2000]).

“[L]andowners and business proprietors have a duty to maintain their properties in reasonably safe condition” (Di Ponzio v Riordan, 89 NY2d 578, 582 [1997]; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [2004]) and the State “[h]aving waived its sovereign immunity . . . is subject to the same rules of liability as apply to private citizens” (Preston v State of New York, 59 NY2d 997, 998 [1983]). However, the State “is not obligated to insure against every injury which may occur” (Smith v State of New York, 260 AD2d 819, 820 [1999]).

“It is the general rule that an employer will be held vicariously liable only for acts [done by an employee] within the scope of the employment and, therefore, acts which are not part of the conduct of the employer's enterprise will not be the responsibility of the employer” (McKay v Healthcare Underwriters Mut. Ins. Co., 295 AD2d 686, 687 [2002], lv denied 99 NY2d 503 [2002]; see also Adams v New York City Tr. Auth., 88 NY2d 116, 119 [1996]). “An employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control, directly or indirectly, over the employee’s activities” (Lundberg v State of New York, 25 NY2d 467, 470-471 [1969]; see also Johnson v Daily News, 34 NY2d 33, 35-36 [1974]). For example, “[a]s a general rule, an employee driving to and from work is not acting in the scope of his employment” (Lundberg v State of New York, supra at 471). “Although such activity is work motivated, the element of control is lacking” (id.). The Court of Appeals has recognized that there are
“useful guidelines for assessing whether the conduct of a particular employee, overall, falls within the permissible ambit of the employment. Among the factors to be weighed are: the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated”

(Riviello v Waldron, 47 NY2d 297, 303 [1979]). However, “ ‘[i]n the absence of any wrongful or actionable underlying conduct [by an employee], there can be no imposition of vicarious liability against any alleged employer . . . pursuant to the doctrine of respondeat superior’ ” (Trivedi v Golub, 46 AD3d 542 [2007], quoting Wende C. v United Methodist Church, N.Y. W. Area, 6 AD3d 1047, 1052 [2004], affd 4 NY3d 293 [2005]; see also, Lundberg v State of New York, supra at 470 [under the doctrine of respondeat superior, an employer will be liable for the negligence of an employee committed while the employee is acting in the scope of his employment]; Kingsley v Leija, 260 AD2d 761, 762 [1999]; Crawford v Westcott Steel Co., 188 AD2d 731[1992]).

Upon applying the aforementioned principles to the instant facts, and after consideration of all the proof, including the exhibits received into evidence and the testimony and demeanor of the witnesses, the Court finds that claimant failed to prove by a preponderance of the credible evidence that defendant acted negligently. In the Court’s view, the evidence persuasively shows that Miller’s conduct on the trail was reasonable and not negligent. In light of the foregoing, the status of Miller’s employment at the time of the accident does not need to be determined because even if he was an employee of ORDA when the accident occurred, his conduct was not negligent.

The Court finds that claimant’s testimony as to how her collision with another skier occurred is not credible, particularly given the written statement she provided on the morning of the accident and the testimony and written statements of defendant’s witnesses, particularly Coton, a witness to the collision. Moreover, the proof does not support her claim that Miller failed to use ordinary care when skiing that morning.

Her trial testimony reveals that she was an accomplished skier who regularly skied more difficult trails, had previously participated in downhill ski races, held Gore season passes, and was familiar with Hawkeye, a black diamond trail she had skied numerous times. The evidence indicates that by 8:30 A.M., she had reached the Straight Brook lift chair and was transported to the top of Hawkeye in approximately five minutes. While she stated that her ski speed that morning was neither fast nor slow, she acknowledged that she was on her fourth or “very possibl[y]” fifth run down Hawkeye when the accident occurred at approximately 9:05 A.M. The fact that she had completed four or five runs down Hawkeye in the roughly thirty to forty minutes prior to the accident suggests that she was skiing at a rather fleet pace. In addition, the testimony from both Miller and Coton, along with their written statements, describing how Miller was essentially launched from his bindings and landed somewhere between 12 and 30 feet from the point of impact, suggests that claimant was skiing at a rapid rate of speed at the time of the collision.

Claimant also stated at trial that she was on the part of the trail below the headwall and had made the turn to ski down to the lower section when she was “hit from behind.” She stated that she did not see the person she struck before the impact. However, in her accident report, which was completed on the morning of the accident, she stated that the “other skier cut me off,” intimating that Miller was actually in front of her rather than behind her.

The evidence regarding Miller’s actions on the trail prior to the accident indicates that he was exercising ordinary care. Miller stated that before starting down the headwall to practice his turns, he looked to see whether the trail was clear of other skiers below him. Miller testified that as he proceeded down Hawkeye, he was practicing turns at the speed of a “brisk walk or jog,” and that practicing a controlled and constant speed on a steep terrain was critical in order to pass his Level III exam. He stated that at the end of the headwall, where the slope levels off, he was gliding in an upright position at a speed equivalent to “a walk” or “a brisk walk” when he was struck from behind in the right buttock and right shoulder area and ejected from his skis. The incident report that he completed on the date of the accident similarly provides that he “was hit from behind”.

Coton’s testimony, which the Court particularly credits, provides essentially the only eyewitness account of the accident and corroborates Miller’s version of the incident. Coton was standing below the headwall on the edge of Hawkeye at the point where the trail makes a left-hand turn and levels off. He stated that he was “facing directly at where the collision was” about fifteen or twenty feet away.[2] He did not see any skiers in front of Miller in the moments before the accident. Just before the impact he observed Miller skiing “relatively slow” and in an upright position on the flatter portion of the trail below the headwall. Coton then observed someone collide into the backside of Miller, causing him to be ejected from his skis. He stated further that claimant was “above” Miller on the trail in the seconds preceding the collision, and that claimant “ran into Tom Miller.” Coton’s written accident report, which he prepared the morning of the accident, corroborates his trial testimony that Miller was struck from behind. In that report, Coton states that another skier hit Miller in the back knocking him out of his skis. Thus, claimant having failed to meet her burden to establish that Miller was acting unreasonably or was not using ordinary care at the time of the accident, the Court is unable to conclude that defendant is liable.

Furthermore, the Court concludes that the collision was a risk that claimant assumed by participating in such an activity and was inherent in the sport of skiing. General Obligations Law § 18-101 expressly provides that “downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by . . . other persons using the facilities . . .” “Voluntary participants in sports or recreational activities consent ‘to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation’ ” (Pantalone v Talcott, 52 AD3d 1148, 1149 [2008] quoting Morgan v State of New York, 90 NY2d 471, 484 [1997]; see also Myers v Friends of Shenendehowa Crew, Inc., 31 AD3d 853, 854 [2006]; Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607 [2003]). “ ‘Thus, the risks of becoming injured due to fatigue, being bumped by a horse during a race or exhibition, or being struck by a ball or bat during a baseball game are risks which various participants are legally deemed to have accepted personal responsibility for because they commonly inhere in the nature of those activities’ ” (Myers v Friends of Shenendehowa Crew, Inc., supra at 854, quoting Morgan v State of New York, supra at 484). New York courts have consistently held that the risk of injury caused by another skier is an inherent risk in downhill skiing (Gern v Basta, 26 AD3d 807, 808 [2006] lv denied 6 NY3d 715 [2006]; Whitman v Ziedman, 16 AD3d 197 [2005]; Zielinski v Farace, 291 AD2d 910, 911 [2002]; Kaufman v Hunter Mtn. Ski Bowl, 240 AD2d 371, 372 [1997]; Atwell v State of New York, 229 AD2d 849 [1996]).

The doctrine of primary assumption of risk “completely bars recovery to a plaintiff who was injured during voluntary participation in a recreational activity” (Pantalone v Talcott, supra at 1149; Giugliano v County of Nassau, 24 AD3d 504, 505 [2005]) “Notably, whether a given participant is aware of and appreciates a particular risk must be assessed against his or her skill, background and experience” (Myers v Friends of Shenendehowa Crew, Inc., supra at 854; see also Sharrow v New York State Olympic Regional Dev. Auth., supra at 607; de Lacy v Catamount Dev. Corp., 302 AD2d 735 [2003]).

Here, the evidence shows that claimant was an adept skier, very familiar with the terrain

and experienced with skiing Gore’s more difficult trails. She described herself as an “advanced intermediate” skier who had been skiing since 1980 and was familiar with the skier’s rules of conduct. She was a former season pass holder at Gore who had skied Hawkeye approximately 35 times prior to the accident. Given claimant’s skill and experience in the sport of skiing, the Court further finds that claimant’s accident, while unfortunate, was an assumed and inherent risk of such recreational activity, and therefore bars any recovery against defendant.

Based on the foregoing, the Court finds that claimant has failed to prove by a preponderance of the credible evidence that negligence of the defendant was the proximate cause of her fall. Accordingly, the claim is dismissed in its entirety. All motions not previously decided are hereby denied.

The Clerk of the Court is directed to enter judgment accordingly.

January 20, 2009
Albany, New York

Judge of the Court of Claims

[2]. Coton drew a red circle on claimant’s exhibit 1 to delineate where he was standing when he observed the accident. The red “X” on exhibit 1 is approximately where the collision occurred.