New York State Court of Claims

New York State Court of Claims



Summary judgment is granted as to defendant’s liability for injuries sustained by infant claimant participating in the sport of luge where the infant claimant’s luge sled struck defendant’s maintenance worker who was improperly on the luge track.

Case Information

MARK MINUTO and VIRGINIA MINUTO, Individually and as Parents and Natural Guardians of JILLIAN MINUTO, a minor
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):

Claimant’s attorney:
& ECK, P.L.L.C.By: Mark A. Eck, Esq.
Defendant’s attorney:
New York State Attorney GeneralBy: Glenn C. King, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 31, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move pursuant to CPLR § 3212 for summary judgment on the issue of defendants’ liability in this personal injury action. The facts are not in dispute. The infant claimant Jillian Minuto, then 15 years old, was injured on November 29, 2007, between 1:30 and 2:00 p.m., at the Olympic Sports Complex at Mt. Van Hoevenberg, Lake Placid, New York, while engaging in a training session in the sport of luge on the luge/bobsled track owned by the State of New York and operated by the New York State Olympic Regional Development Authority (ORDA). Claimant was training as a member of the USA Junior Luge team.

Luge competition involves a person lying on a sled and sliding, feet first, down an iced chute (track) similar to those used in bobsledding.
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 Dept 2006]).

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 [1957]; 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 [1980]).

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 [1986]).

“[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]).

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 granted.

August 31, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:
  1. Claimants’ Notice of Motion, filed June 16, 2009;
  2. Affirmation of Mark A. Eck, dated June 12, 2009, with annexed exhibits;
  3. Affirmation in Opposition of Glenn C. King, dated July 1, 2009;
  4. Reply Affirmation of Mark A. Eck, dated July 8, 2009.