Claimant was injured on her third luge run of the day when she and her sled
struck a worker standing in the track who was employed by ORDA to perform
maintenance on the track between practice runs.
ORDA had, at the time of the accident, a written policy designed to ensure that
the track was clear of equipment and personnel prior to a luge rider being
signaled by ORDA personnel to commence his or her descent down the track.
ORDA’s track public address announcer and chief timing technician, Brenda
Alford, provided deposition testimony as to that policy. Alford testified that
it was her job to ensure that the track was safe and clear for the luge rider.
ORDA stationed employees at both the top and finish of the track. Alford was
located at the finish and another employee called the “starter” was
located at the top of the track. After a luge rider completed his or her run,
Alford would begin to clear the track by announcing, “clear the track back
to the start.” ORDA employees were required to immediately clear the track
upon this instruction. ORDA maintenance employees along the track would then
report in turn to Alford, by hand-held radios after visual confirmation, that
the track was clear. Alford would then announce that the track was clear for the
next luge rider and push a button to sound an alarm alerting ORDA employees that
a luge run was commencing immediately. Alford would next push another button
which changed the track light signal from red to green and which activated a
30-second countdown clock alerting the luge rider to begin his or her run.
Alford testified that she followed this procedure on the run which resulted in
claimant’s injuries on November 29, 2007.
Claimant testified that upon seeing the green light and hearing the alarm she
commenced her run and that as she exited curve 10 (which was covered like
“a tunnel” to avoid melting ice) she saw a man in the track
“five or ten meters from where I was.” Claimant was traveling
“between 50 and 60 miles per hour” and was unable to avoid hitting
the ORDA employee.
Deposition testimony was also provided by ORDA employees Bob Ford and
Christopher Gill, who comprised the ORDA maintenance crew working in the area of
track curves 10 and 11 on the day claimant was injured.
Ford was the ORDA employee struck by claimant as she slid down the track. Ford
stated that he had been smoothing the ice with a metal tool between runs,
supervised by Gill, in and about curves 10 and 11 for about 30-45 minutes prior
to the accident. Ford had cleared himself from the track repeatedly, as
required, during that period to allow luge riders to safely pass. Ford testified
that during the prior runs that day, he had heard the “clear the
track” direction over the public address system, in addition to hearing
crew leader Gill radioing in that the crew was clear of the track. Ford heard
neither warning prior to seeing claimant on her luge sled about six feet away
from him, traveling at 45-50 miles per hour. Ford unsuccessfully attempted to
jump out of the way of claimant.
Gill was the crew leader on the day of the accident and was responsible for
clearing Ford and himself from the track upon the “clear the track”
command issued by Alford. Gill heard Alford announce over the public address
system “clear the track” just prior to the accident. He testified
that Ford was about 15-20 feet away from him just prior to the “clear the
track” announcement. Gill looked to see if Ford had cleared the track and,
not seeing Ford, he reported by radio that the track was clear. Gill saw
claimant slide past him and then heard a loud sound. He saw Ford on the track
and later learned that claimant and her sled had collided with Ford.
An ORDA electrician tested the track sound, lighting and electrical systems
immediately after the accident and confirmed that all were in working order.
“A motion for summary judgment should be entertained only after the
moving party has established, by competent admissible evidence, that it is
entitled to judgment as a matter of law . . . If the movant meets this initial
burden, the opposing party is required to submit evidence which raises a
material issue of fact to preclude an award of summary judgment” (Ware
v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; see
Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d
The court’s role on a motion for summary judgment is issue finding, not
issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d
395, 404 ; Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002];
Schaufler v Mengel, Metzger, Barr & Company, LLP, 296 AD2d 742, 743
[3d Dept 2002]) and where a genuine issue of fact exists, the motion must be
denied (Fleet Bank v Tiger Racquet Fitness and Exercise Center, Inc., 255
AD2d 793, 794 [3d Dept 1998]).
Claimant offers unrebutted proof that she acted in a reasonable manner during
the luge run which resulted in the accident and that she did not, to any degree,
contribute to causing the accident. The record conclusively shows that the track
was not clear at the time Gill reported that it was. Gill failed to see Ford on
the track and Ford failed to hear either the order to clear the track or the
alarm alerting ORDA employees that a luge run was commencing immediately.
“In opposition to a motion for summary judgment a party must assemble and
lay bare affirmative proof to establish that genuine material issues of fact
exist. Only the existence of a bona fide issue raised by evidentiary fact rather
than one based on conclusory or irrelevant allegations, will be sufficient to
defeat a motion for summary judgment where the movant has made out a prima facie
basis for the granting of the motion” (Archambault v Martinez, 120
AD2d 632, 632-633 [2d Dept 1986]). Further, “mere conclusions, expressions
of hope or unsubstantiated allegations or assertions are insufficient” to
defeat a motion for summary judgment (Zuckerman v City of New York, 49
NY2d 557, 562 ).
In opposing the claimants’ motion, defendant offers an attorney’s
affirmation only, which argues that questions of fact exist as to how Gill
failed to see Ford, how Ford failed to hear the “clear the track”
announcement and whether the sound equipment was working properly at the time of
the accident. Defendant’s curiosity raises no factual issue. Claimant is
not obligated to prove why defendant’s employees failed to see and hear
what the unrebutted facts show was there to be seen and heard. Defendant’s
speculation that the sound system may not have been working at the instant of
impact is unsupported by the testimony or by any evidence in the record.
Nor can it be claimed that claimant assumed the risk of the injury she
suffered. The defendant’s “duty under [these] 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]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 ).
A maintenance worker standing in the middle of the track is not an inherent
risk of the sport of luge and constitutes a unique and dangerous condition
beyond the usual dangers inherent in the sport.
The claimants’ motion for summary judgment, to the extent it seeks to
establish defendant’s sole negligence in causing the accident, is