New York State Court of Claims

New York State Court of Claims

CALDWELL v. STATE OF NEW YORK, #2009-039-109, Claim No. 110294


Case Information

SUSANNAH CALDWELL, a person under disability, JUDITH BURG and STEPHEN CALDWELL, both individually as parents and as co-guardians for SUSANNAH CALDWELL
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):

James H. Ferreira
Claimant’s attorney:
James W. Badie, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Glenn C. KingAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 4, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants Susannah Caldwell (hereinafter “Susannah”) and her parents, Judith Burg and Stephen Caldwell, seek damages arising from injuries suffered by Susannah on December 28, 2003 while she was participating in a ski school program at Whiteface Mountain in Essex County, New York. Susannah, who has cerebral palsy and is a quadriplegic, was 19 years old at the time of the accident. Claimants allege that Susannah has a “strong morrow [sic] reflex” in her left arm, which causes the arm to bend at the elbow and move involuntarily. Claimants aver that the staff at Whiteface Mountain, a state operated ski facility, were aware of this condition and were negligent in failing to properly secure Susannah’s left arm in her bi-ski. Defendant contends that it had no notice of the “morrow [sic] reflex” and that, even assuming it had such notice, no evidence was proffered that demonstrated she was negligently strapped into her bi-ski.

A bifurcated trial was held on May 6 and 7, 2008.[1] Susannah and her mother testified in support of their claim. Defendant called two witnesses on its behalf. Various exhibits including correspondence, incident reports and a color copy of a photograph were admitted into evidence.

Claimant Judith Burg testified that she is the mother of Susannah and lives with her daughter. On December 28, 2003, Susannah was participating in an adaptive ski program for persons with disabilities at Whiteface Mountain, and was accompanied by a friend, Chaney Roko. Burg learned of her daughter’s skiing accident and injury to her left arm by phone at approximately 4:00 P.M. that afternoon. Susannah was initially treated in a local medical office near Lake Placid and was subsequently transported to Connecticut Children’s Medical Center where she stayed until she was discharged on December 30, 2003.

Burg testified that she had arranged for Susannah’s participation in the program by completing a form titled “Inclusive Adaptive Snow Sports Program” and mailing it to Don Dew, the program director, at least a week prior to the appointment.[2] She “filled out this form in its entirety” because she was concerned about her daughter’s Moro reflex in her left arm, a condition that causes the arm to “fly” about when she is startled or she experiences sudden movement. She stated that she included in the form the need for Susannah’s left arm to be contained to avoid injury. She recalled speaking to Dew for the first time on December 27, 2003 when he called her to ascertain when Susannah would arrive, believing she was supposed to arrive on December 27. She told him her daughter and a friend would arrive on December 28. She did not recall talking to him during that phone call about Susannah’s condition. She also did not recall whether she had sent the program form to Dew by ordinary mail or fax. On March 16, 2004, she sent Dew an e-mail seeking information about her daughter’s injury. She received a reply from Dew on March 17, 2004.

During cross-examination, Burg stated that in 2006 she sent her counsel a blank copy of the form she asserts she filled out and mailed to Dew prior to Susannah’s accident on December 28, 2003. She claims to have found the form on the internet and that she did not keep a copy of the completed form. Susannah’s friend, Chaney Roko, had taken Susannah to Whiteface to ski that day, and Roko was a limited standby guardian for Susannah on the day of the accident. Burg repeated that she had shared her concerns about her daughter’s arm with Dew in writing. In her deposition, she had stated that she thought she had also spoken to Dew, Roko and Roko’s mother, Nancy, about her daughter’s arm. Burg had concerns about how Roko completed the application form for the adaptive snow sports program (see defendant’s Exhibit A), which was faxed to the program on November 25, 2003. This form included phone numbers for Roko, as well as for Burg and Susannah. During redirect, Burg stated that she thought Roko had provided incomplete information on the application form as to Susannah’s condition and medical history.

Susannah testified that she lives with her mother in Connecticut. She is a high school graduate currently attending Middlesex Community College, where she is studying to be a recreation director. She remembered December 28, 2003 because it was the day she injured her arm. She recalled that her adaptive ski instructor that day was Jean Brennan, and that Brennan told her how to sit in the bi-ski. She was strapped around the legs but not around the arms or chest. Brennan accompanied her up the mountain and skied behind and next to her holding the ropes to the bi-ski. Another friend, Debbie Collison, was skiing with her as well. Roko was not skiing with her but was at the waiting area. At the time of her accident, she stated that she hit a patch of ice and “tipped over” on her left side. She recalled hearing her arm “pop” and Brennan coming to her aid. Susannah also recalled Brennan asking her questions, but that she did not respond. She described her speed as “very fast”on the run where she tipped over. She recalled pain in her left arm after the fall and being taken to the Adirondack Medical Center, where her arm was placed in a sling.

During cross-examination, Susannah explained that the bi-ski requires someone to ski behind the skier to hold the ropes. Brennan was skiing beside her, and Debbie Collison was skiing behind her, handling the ropes, when the accident occurred. On the runs prior to her accident, Brennan had handled the ropes. Prior to skiing, Brennan helped her become familiar with the bi-ski and they practiced how to turn right and left by using her arms. She also practiced tipping over. Other than a practice fall, Susannah had no other falls on the day of her accident until the one where she hurt her arm. Debbie Collison’s sister, Joan, was also skiing with them at the time of the accident.

Following the close of claimant’s proof, the State moved to dismiss the claim based upon claimants’ failure to establish a prima facie case of negligence. The court reserved on the motion, and defendant called Jean Brennan to the stand.

Brennan testified that she is a lab technician in a research facility at Johns Hopkins University. At the time of Susannah’s accident, she was a full time lab technician at the Trudeau Institute in Lake Placid and a part time ski instructor for the Adaptive Ski Program at Whiteface. Brennan explained that the program teaches persons with disabilities how to ski. She first became certified as a level one instructor for that program in 2001. Her certification process included two days of training, testing and reviewing written materials. The focus of her training was instructing students in using the mono and bi-ski. Students interested in participating would complete applications on-line to provide the program with information about their disabilities, specific limitations and medications. Once the application form was received, Don Dew, the program director, would review the application and assign an instructor. The assigned instructor would review the form, call the student if the instructor had questions and perform a physical evaluation when the student arrived.

Brennan stated that she read Susannah’s application form the day before Susannah arrived. She met Susannah on the morning of December 28, 2003. Susannah was accompanied by Roko and Debbie and Joan Collison. She asked Susannah questions about her application and her expectations for the lesson. They discussed how the bi-ski, which she described as “a wheelchair on skis,” would be used and controlled during her lesson. Brennan explained that the student essentially sits in the ski and the ski’s movement is ultimately controlled by an instructor, who acts as a “tetherer” by holding the nylon ropes attached to the back of the bi-ski. Controlling the right and left tethers allows the ski to turn in either direction and slow down. Susannah had requested in her application that one of her companions be the “tetherer.”

Susannah’s strength, grip and mobility were tested in order to select the proper equipment. After that assessment was completed, it was determined that she would ski in a bi-ski and was fitted for that equipment. After finding that Susannah did not have the strength to operate a hand-rigger, a smaller ski used to help the student turn, Brennan decided that Susannah would essentially use her body to point the direction of the ski. Brennan stated that having the client engage in the turning, by either moving her head or her arms, will turn the sled in that direction and allow the skier to “do as much as they can” with the instructor or tetherer retaining the ultimate control of the ski. She stated that they did put outriggers on the sled to help control and balance the sled. They then dressed Susannah to ski and adjusted the bi-ski to her fit. Once on a flat section of snow, she was seated in the bi-ski, straps were adjusted and they practiced turning the ski to the right and the left by moving her arms. Brennan stated that “I physically get behind her and tell her this is what it feels like to go to the right, go to the left, and then I have her moving her arms so that she gets used to that.” She then helped her learn how to balance and stay in the center of the sled. In the event the sled rolled over, they practiced how to fall by bringing her arms in and placing them across her chest. She then asked Susannah if she had any questions and whether the straps were bothering her.

At that point, with Debbie Collison’s help, Brennan started working with Susannah on a small slope. Susannah practiced leaning with her arms and responding to verbal commands. Brennan stated that Susannah was able to use her arms. They then practiced getting on and off the ski lift. Their first run was a beginner run called Mixing Bowl. After an unspecified number of runs on Mixing Bowl, they progressed to Wolf, another beginner run that provides a longer run. They skied for approximately an hour and a half. Brennan was primarily the tetherer for Susannah’s bi-ski on those two slopes, but Debbie, under her instruction, tethered “a little bit” at Mixing Bowl. She stated that Debbie had “ a few years’ experience” and that she was “a very competent tetherer.” From Wolf, they proceeded to Lower Valley, where the accident occurred.

Brennan recalled they were proceeding down Lower Valley, with Debbie tethering, at a slow speed and were turning well when Susannah stopped moving her arms. Brennan stated that she then skied down by Susannah to encourage her to turn more and to move her arms but she did not respond. The sled then rolled to the left. Susannah was not talkative after that, but did respond that she was okay. Brennan did not realize Susannah was injured until she was contacted by ski patrol about the accident.

Brennan stated that at no time was she told that Susannah had a reflex problem with her left arm. She has never strapped a skier’s arms to their body during a run, and stated further that in the runs prior to her accident, Susannah had never shown she was unable to perform movements to the left or right.

During cross-examination, Brennan stated that prior to Susannah’s lesson, she reviewed Susannah’s application form and spoke with Dew about the schedule for the day and the equipment to use. She reiterated that Susannah was provided with equipment, training and lessons prior to skiing. She knew Susannah was quadriplegic and Brennan had prior experience instructing such persons. She estimated that Susannah’s training prior to actually skiing lasted approximately 30 to 45 minutes. The purpose of that “inside” training was to learn more about her client’s physical abilities, the mobility of her legs, arms and head, and her listening skills. She recalled placing straps on Susannah above and below her waist. Her arms were not strapped; the strap above her waist was “a crisscross across the chest.” She acknowledged that an injury could occur if an arm was stretched out and the sled rolled. She recalled that when the sled rolled, Susannah’s left arm was along her left side and was not sticking out. The accident occurred on the last run of the day after “several” previous runs. Brennan recalled that, during their last run, they progressed at a slow rate of speed, but that their speed increased a little just before the sled tipped over because Susannah had stopped “gesturing her arms left and right,” which assists the skier in reducing speed and making turns. The accident occurred when Brennan was right next to Susannah as she was trying to encourage her to turn, and thereby slow her speed. During redirect examination, she stated that Susannah’s arms were not strapped in because it was apparent during her indoor training that Susannah could make her arms point outward either to the right or the left, and that she could respond to verbal commands.

Defendant then called Dew to testify on defendant’s behalf. His position at Whiteface is seasonal. Dew explained that the Adaptive Ski Program began in 1996 to provide ski instructions to persons with disabilities, including those with cerebral palsy, spina bifida and spinal cord injuries. Jean Brennan was a member of his staff as the bi-ski and mono-ski certified instructor. He has taught skiing since 1963 when he learned to ski in Austria while stationed with the United States Army in Germany.

He first became familiar with Burg via an e-mail he received from her about Susannah’s injury. He did not recall receiving or reviewing any forms from Burg or having conversations with her in the two months prior to December 28, 2003, as to Burg’s concerns about Susannah’s left arm. He recognized defendant’s exhibit A as the application form a person seeking an adaptive lesson completes. Exhibit A is the form he uses to assign instructors and was the form used in December 2003. Claimant’s exhibit 10 represents the current updated form, which became available sometime in 2005 or 2006.

Dew stated that prior to a lesson, a physical evaluation of the student is performed to assess the student’s range of motion, agility, ability to know right from left and muscle strength. The student is also fitted for equipment and instructed how to fall, how to recover from a fall and how to get on the lift. He stated that in Susannah’s case, she was fitted with a fixed outrigger with tethers to maintain control during use.

During cross-examination, Dew reiterated that he neither received any writing or form from Burg nor did he have any conversation with her prior to December 28, 2003. On the morning of December 28, 2003, he saw defendant’s exhibit A, the application form, which was dated November 24, 2003 and signed by Susannah’s standby guardian. He reviewed and discussed the form with Brennan prior to the lesson. He stated that Brennan was qualified to work with persons with disabilities, like cerebral palsy, and that Brennan had physically examined Susannah prior to the lesson. He stated that there was no reason and “nothing to indicate” that Susannah’s arm should be strapped during her lesson. He stated that you want the skier to have “freedom and range of motion.” The defense rested at the conclusion of Dew’s testimony and renewed its motion to dismiss the claim for failure to state a prima facie case. The Court reserved on the motion.

To establish a prima facie case of negligence, a claimant must establish by a preponderance of the credible evidence the existence of a duty owed by a defendant to the claimant, a breach of that duty and that such breach was a proximate cause of claimant’s injury (Comack v VBK Realty Assoc., Ltd., 48 AD3d 611 [2008]; Rodriguez v Budget Rent-A-Car Sys., Inc. 44 AD3d 216 [2007]; Solan v Great Neck Union Free School Dist., 43 AD3d 1035 [2007]; Kampff v Ulster Sanitation, 280 AD2d 797 [2001]; PJI 2:10). In instances where the plaintiff is disabled, the duty owed is commensurate with the perceived ability of the disabled person to care for his or her own safety (See Killeen v State of New York, 66 NY2d 850, 852 [1985]; PJI 2:11). Regarding causation, claimant specifically bears the burden to show “that [defendant’s] conduct was a substantial causative factor” in the events that led to claimant’s injury (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520 [1980]; see also Derdiarian v Felix Corp., 51 NY2d 308 [1980]; PJI 2:70).

It is well established that “by 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 Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607 [2003]). “Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Morgan v State of New York, supra at 484). A person who voluntarily participates “in an athletic activity is deemed to have consented to the risk of injuries that are ‘known, apparent or reasonably foreseeable consequences of the participation’ in such events” (Kaufman v Hunter Mtn. Ski Bowl, 240 AD2d 371, 372 [1997] lv denied 91 NY2d 805 [1998], quoting Turcotte v Fell, 68 NY2d 432, 439 [1986]). “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, 52 AD3d 1148,1149 [2008]; see also Giugliano v County of Nassau, 24 AD3d 504 [2005]), and it applies to situations where there is an elevated risk of danger and where the accident involves a sports or recreational activity (see Rodriguez v New York City Hous. Auth., 211 AD2d 328, 333 [1995] revd on other grounds, 87 NY2d 887 [1995]; Cohen v Heritage Motor Tours, Inc., 205 AD2d 105, 108 [1994]). “Notably, a particular plaintiff’s knowledge and appreciation of the risk is ‘to be assessed against the background of [his or her] skill and experience’ ” (Sharrow v New York State Olympic Regional Development Auth., supra at 607; see also de Lacy v Catamount Dev. Corp., 302 AD2d 735, 736 [2003]). Courts have applied the doctrine to recreational winter sports with inherent risks such as downhill skiing (Farone v Hunter Mtn. Ski Bowl, Inc., 51 AD3d 601 [2008]; Sontag v Holiday Val., Inc., 38 AD3d 1350 [2007]; Morgan v Ski Roundtop, 290 AD2d 618 [2002]; Jordan v Maple Ski Ridge, Inc., 229 AD2d 756 [1996]), bobsledding (Morgan v State of New York, supra), snow tubing (Youmans v Maple Ski Ridge, Inc., 53 AD3d 957 [2008]; Huneau v Maple Ski Ridge, Inc., 17 AD3d 848 [2005]) and snowmobiling (Pantalone v Talcott supra).

Upon applying these 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 defendant had no notice of Susannah’s Moro reflex and that, even assuming defendant had notice of her Moro reflex, there is no evidence that defendant’s actions were negligent. Moreover, Susannah assumed the risks inherent in her voluntary participation in the adaptive snow sports program at Whiteface.

As a threshold issue, the record does not support claimants’ assertion that defendant had notice of Susannah’s Moro reflex. Claimants were unable to produce a copy of the application form that Burg contends she completed on Susannah’s behalf and sent to Dew, the director of the adaptive snow sports program, prior to Susannah’s lesson. The proof shows that the only written form defendant received was defendant’s exhibit A, an application form for participation in the program that was completed by Roko and received via fax by the program on November 25, 2003. Although the form states that Susannah has cerebral palsy and is spastic quadriplegic, it expressly states that Susannah has the “ability to use [her] arms & upper body [and] does stand-pivot transfer.” No mention of her Moro reflex in her left arm or the need to secure her left arm is disclosed on the form, and Susannah testified that she did not tell Brennan about her arm. Brennan also testified that she was never told about Susannah’s problem with her left arm. Furthermore, Dew did not recall receiving any documents from Burg prior to December 28, 2003 and did not recall Burg ever expressing concerns about her daughter’s left arm in the two months before the accident.

Even assuming that defendant had notice of Susannah’s Moro reflex, there is no indication from the record that defendant acted negligently with respect to Susannah’s care while she participated in the program. Susannah’s application was reviewed by Brennan and Dew. Brennan knew Susannah was a quadriplegic, and she was qualified in and had prior experience teaching skiing to persons with similar disabilities. Prior to skiing that day, Brennan spoke with Susannah about her lesson and assessed Susannah’s mobility, range of motion, strength, and ability to grip. She also evaluated Susannah’s ability to follow commands like moving her hands or head to the left or right to help turn and control the sled. She fitted Susannah for a ski that would best suit her needs and simulated the skiing experience on a flat section of snow. With Brennan’s assistance, Susannah practiced responding to verbal commands and how to balance, fall and turn left and right by moving her arms. After 30 to 45 minutes of “inside” training, they proceeded to two beginner runs where Susannah skied for approximately 90 minutes without incident. During that time, Brennan primarily controlled the bi-ski by skiing six to nine feet behind it while holding nylon ropes that were tethered to the bi-ski. Pulling the ropes or tethers allowed the ski to turn right or left, and thus control its speed. Susannah essentially had two instructors as Brennan was assisted by Debbie Collison, who also tethered the ski for a short time, and who, in Brennan’s words, was “a very competent tetherer.” Susannah successfully made “several” runs prior to her accident, and was able to use her arms to help direct the bi-ski and control her speed. Susannah responded to her instructors who held tethers on each of her runs. As she skied down Lower Valley, with Debbie Collison tethering, they progressed at a slow rate of speed and turned well until Susannah stopped responding to the verbal commands to move her arms and turn. Brennan then skied beside Susannah to encourage her to move her arms when the sled rolled on its left side. Notably, the moment Susannah stopped responding to verbal commands, Brennan was beside her to assess the situation and urge her to use her arms to turn. Brennan testified that in the runs prior to the accident, Susannah had never shown that she was unable to respond to directions or perform movements to the left or right.

Regarding claimants’ assertion that defendant was negligent for failing to strap Susannah’s arms across her body, the Court credits the testimony of Brennan and Dew. Their testimony plainly indicates that Susannah’s arms were not strapped in because she had mobility in her arms and upper body, and immobilization of her arms would lessen the simulated skiing experience for the student, which was contrary to the goal of the program, and more specifically, it would impede the skier’s ability to make turns and control speed. Indeed, no evidence was submitted to suggest that the manner in which Susannah was strapped into the bi-ski was a substantial causative factor to her injury. Moreover, Susannah’s application form stated that she had the ability to use her arms and upper body, a statement that was supported by testimony regarding her examination, training and skiing. Under these circumstances, defendant’s conduct during Susannah’s instruction, including its decision not to strap her arms, appears reasonable to the Court.

Finally, the Court finds that while Susannah’s skiing skills and experience may have been limited, there is nothing in the record which demonstrates that she was unaware of or did not appreciate the risk of injury from skiing. The proof offered showed that she interacted with her instructors, followed and understood their instructions and performed competently during the course of her lesson until her fall. Additionally, the application form for Susannah’s participation in the adaptive sports program expressly provides that “skiing can be a hazardous sport,” which was completed and signed by Roko, Susannah’s standby guardian on that date. While the accident was extremely unfortunate, its mere occurrence under these circumstances does not render the defendant liable for injuries or damages suffered.

Based on the foregoing, the Court finds that claimants have failed to prove by a preponderance of the credible evidence their claim against defendant. Accordingly, this claim is dismissed in its entirety. Any motions not previously decided are hereby denied.

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

February 4, 2009
Albany, New York

Judge of the Court of Claims

[1].The Court, with defendant’s consent, allowed Susannah and her mother to testify as to liability and damages in light of the logistical challenges and hardship Susannah might endure if it became necessary for her to return to Albany for a trial on the issue of damages.
[2].Claimant’s exhibit 10, admitted into evidence, is a blank copy of the form Burg contends she prepared and mailed to Dew prior to her daughter’s lesson. The completed form, or a copy thereof, that Burg contends she sent to Dew was not produced.