New York State Court of Claims

New York State Court of Claims
MALGIERI v. THE STATE OF NEW YORK, # 2010-032-508, Claim No. 116166


Case information

UID: 2010-032-508
Claimant short name: MALGIERI
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116166
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Fine, Olin & Anderman, LLP
By: Finkelstein & Partners
By: Nancy Y. Morgan, Esq.
Defendant's attorney: Hon. Andrew M. Cuomo, NYS Attorney General
By: Glenn C. King, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:
Signature date: December 8, 2010
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, Thomas Malgieri, was involved in an accident on March 1, 2008 when he was skiing on Belleayre Mountain (Belleayre). He was a freshman in college at the time and he had been skiing since his early high school years. Claimant was a skier in the Belleayre Race Program, racing with the United States Ski Association (USSA) for training. Claimant was a "sub-100"(2) USSA slalom and giant slalom skier (3) . March 1, 2008 was, in the skiing vernacular, a "bluebird" day, meaning blue skies and fresh snow (T:44,120). Claimant arrived at Belleayre at 8:30 A.M. with his father and six friends. They took a quad, a four person chairlift, to Winnisook Trail to Horseshoe Pass, an intermediate trail. Claimant had skied Horseshoe Pass a few times prior to this day. They began their journey down Horseshoe Pass as a group with claimant leading the pack on the left side of the trail. The middle of the trail was groomed but the sides were not groomed. Claimant testified that he was skiing on the groomed and the ungroomed part of the trail because it was fun. He widened his stance to give himself more stability while he skied in this area of the trail. There were 9-12 inches of snow on the ungroomed part of the trail. As a racer, he liked to hug the inside curve to obtain the shortest distance down the mountain. He testified that he was not skiing in the trees. As he was making a left turn, his left ski depressed into an alcove and then his right ski gave. He then fell into a culvert, hitting a drainage pipe and the rocks that cover the pipe. His right ski released and presumably fell into the drainage pipe, never to be seen again. His right shin came into contact with the opening of the pipe and the rocks. He flipped, feet over head, about ten feet past the pipe, propelling him so that no part of his body was in the culvert. Claimant agreed that the markings on Exhibits 15A and 16A made by his father indicate where he fell and the trail's edge. However, on the day of the accident the whole area was covered in snow. He never saw any lollipops, orange bamboo poles with orange circles which indicate a hazard on the trail, at or near this culvert. Ski patrollers came to assist him and brought him down the mountain in a sled. He explained how the accident happened to them, but never said that he was skiing in the woods. Claimant testified that they never asked him to review the report, nor did they give him a chance to read it (T:153).

Joseph Malgieri, claimant's father, testified that his son was the Rockland County Skier of the Year in his senior year of high school and he raced for the Belleayre Competitive Ski Team for a few years. On March 1, 2008, Mr. Malgieri was skiing down Horseshoe Pass with a group that included his son. Joseph Malgieri was bringing up the rear of the group. He did not see his son skiing in the woods. He saw his son skiing on the edge of the trail (T:54). At some point he saw a body tumbling on the left edge of Horseshoe Pass (T:46-47). When he reached that area he saw his son, claimant, in the culvert. The rock wall on either side of the culvert had been completely covered in snow. He did not observe any lollipops in the area to forewarn of the culvert. Mr. Malgieri marked Exhibits 15A and 16A with a circle where he found claimant after the fall. Ski patrollers arrived within 15 minutes and Mr. Malgieri asked them to place lollipops at the site of the accident so no one else would fall into the culvert (T:70). According to Mr. Malgieri, the ski patroller responded that it would probably be a good idea to do so.(4) He observed lollipops being erected by ski patrollers while his son was being attended to on the mountain. There was no discussion with the ski patrollers about his son skiing in the trees. Upon cross-examination, Mr. Malgieri testified that he was not watching his son in the moments before he tumbled (T:75). He claimed that he never left his son's side after the accident and skied behind the sled down the mountain.

Crawford Watson and Matthew Kelly, friends of claimant who were skiing with him that day, testified as part of claimant's case. Mr. Watson was behind claimant on the right and Mr. Kelly was ahead of claimant on the right. The trail had curves at or around the site of the accident. Mr. Watson did not see him fall due to the bends in the trail but eventually came upon him in the culvert. Prior to the accident, Mr. Kelly saw Thomas Malgieri "coming up in [his] peripheral vision" on the left side of him (T:31). He skied over to him immediately after the fall and he noticed ski marks along the edge of the trail leading into the culvert.

Claimant's counsel read parts of the deposition of Joseph Strauss, the Ski Patrol Director of Belleayre Mountain. Mr. Strauss helped build the culvert in 2003 when Horseshoe Pass was built and he trained the ski patrollers. He testified that the culvert is marked every day pursuant to State regulations and checked every day (T:85-86). He claimed that potential hazards lower than 6 feet, within 10 feet of a ski edge, must be marked with a solid bamboo pole with an orange disc on it (lollipops) or two solid orange poles in an X (T:86-87). Lollipops should have been at or adjacent to the culvert 6-10 feet from the culvert (T:89). According to Mr. Strauss, the culvert where claimant's accident occurred should have been marked because it is within 10 feet of the edge of the ski trail (T:87). Lollipops are left standing overnight and are checked in the morning by the ski patrollers. If a lollipop is not found at first, it is to be replaced on the next run by the ski patroller. The lollipop should have been within 6-10 feet of the skier's path uphill from the culvert. He testified that a lollipop should have marked the culvert and another lollipop should have marked the snowmaking equipment in the area.

Jon Meyer was the first ski patroller at the scene of the accident. He filled out the part of Exhibit 1, designated "Additional Remarks" on page 3 wherein he wrote: "Individual was skiing through [the] woods, dropped down into brook, caught tip and ski released, continuing down and through a pipe culvert. Ski not visible from uphill opening. Downhill opening obstructed by a rock slide. Ski could not be recovered."(5)

(T:236). Mr. Meyer's opinion, that claimant was skiing through the woods, is based upon his observation of ski track marks through the woods into the culvert (Exhibit D/T:240; 244; 281). He did not observe claimant skiing prior to the accident (T:237). He admitted that there were probably other skiers who went down Horseshoe Pass prior to 9:00 A.M. that day. Mr. Meyer marked Exhibit E, a view of the woods looking uphill from where claimant fell, to show where he saw ski tracks that day.

Exhibits 9, 19, 19A, 19B and E demonstrate the positions of the snowmaking equipment and the lollipop marking such equipment. The snowmaking equipment is situated between two trees (Exhibit 9). The lollipop is approximately 3.5-4 feet away from the equipment and near the edge of the trail. Belleayre has a 3-feet rule based upon custom and practice: the lollipop has to be 3-4 feet uphill from the hazard (T:263). The lollipop was approximately 35 feet from the culvert. Exhibits 19, 19-A and 19-B show an aerial view of Horseshoe Pass and the culvert. These exhibits indicate that the culvert extends beyond the woods' tree-lined edge and slightly juts into the trail. Based on his experience, Mr. Meyer stated that there should have been another lollipop within 3-4 feet uphill from the culvert. He did not know whether a lollipop marked the culvert on March 1, 2008 (T:266-267).

When he arrived at the scene, some of the other skiers were walking around the culvert but not in the exact location where the accident occurred. He testified that the corduroy(6) is laid down on the width of the trail which he defined as the distance the skier would use from left to right in coming downhill. Joseph Malgieri testified on rebuttal that prior to speaking to Mr. Meyer at the scene, he and three others had been down in the culvert, leaving footprints in the foot high snow, looking for his son's ski.

Defendant called Charles Ware as part of its case in chief. Charles Ware is a volunteer ski patroller who, due to his ski patrol service, receives free skiing for his family at Belleayre. On March 1, 2008, Jon Meyer was the first ski patroller to arrive at the culvert after the accident. Mr. Ware arrived shortly thereafter. Mr. Ware filled out the majority of the Accident Report Form (Exhibit 1). Mr. Ware wrote the description of the accident on Exhibit 1, in claimant's words, as follows: "Skied to side of trail, saw culvert, tried to avoid it, but hit it and somersaulted. Ski released, went into culvert." According to Mr. Ware, the bounds of the trail are the corduroy, the groomed section of the trail, but that skiers sometimes ski the edge of the trail. He acknowledges that there is no rule that an expert cannot ski in the powder on either side of the corduroy but, in his opinion, the skier would no longer be on the trail (T:204). He admitted that the ski patrollers mark manmade hazards by the edge of a trail. He testified that the culvert is 1-2 feet off to the side of the trail (T:196-197). However, he estimated that the lollipop marking the snowmaking equipment in Exhibit 9 would have been sufficient to mark the culvert (T:206/Exhibit 9).(7) It was his responsibility, as the ski patroller who opened the trail, to mark the snowmaking equipment. He also testified that it would have been his responsibility to mark any hazard adjacent to the corduroy (T:214), using crossed bamboo orange sticks or a lollipop. He did not believe that he needed to mark the culvert nor did he do so on March 1, 2008 (T:216).(8)


Defendant argues that under General Obligations Law 18-103(4), ski area operators like Belleayre, must conspicuously mark the location of man-made obstructions, when the top of the obstruction is less than six feet above snow level and when they are within the borders of the designated slope or trail. "Ski slopes and trails" are defined as "those areas designated by the ski area operator for skiing" [GOL 18-102(7)]. Defendant maintains that the culvert was adjacent to Horseshoe Pass and need not be marked under the GOL. Defendant also maintains that claimant violated GOL 18-105(1) in that such section prohibited skiing in any area not designated for skiing and claimant was skiing off trail, in the woods, and off the groomed or corduroy section of the trail. Further, defendant argues that claimant assumed the risk of a collision with a man-made object off-trail and incidental to the maintenance of a ski facility.

Claimant argues that he was not skiing in the woods and that defendant could also be liable to claimant under common-law principles. A review of the legislative history of GOL article 18 reveals that the enactment of such, was not meant to abolish the application of the common-law duty to warn of dangerous conditions (see Sytner v State of New York, 223 AD2d 140 [3d Dept 1996]). Under common law, a nondelegable duty exists for the landowner to maintain premises, onto which it invites the public, in a reasonably safe condition (see Basso v Miller, 40 NY2d 233 [1976]). The landowner's duty is to "make the conditions as safe as they appeared to be," so that the participants know the danger is present, appreciate the risk of injury, and therefore, can be held to have consented to assume those risks (see Morgan v State of New York, 90 NY2d 471 [1987]; Giordano v Shanty Hollow Corp., 209 AD2d 760 [3d Dept 1994], lv denied 85 NY2d 802 [1995]). "Landowners have a 'duty to exercise reasonable care in maintaining their property in a reasonably safe condition and have a duty to warn of a latent, dangerous condition of which the landowner is or should be aware' " (Noble v Pound, 5 AD3d 936, 937-938 [3d Dept 2004], quoting Soich v Farone, 307 AD2d 658, 659 [3d Dept 2003]). It is for the trier of fact to determine whether the safety measures taken in regard to a latent dangerous condition are reasonable (see Noble v Pound, supra; Van Alstine v Kentucky Fried Chicken of Cal., 292 AD2d 737, 738 [3d Dept 2002]).

A significant defense in any case involving a breach of duty to participants in a recreational event is the doctrine of assumption of risk. When primary assumption of the risk applies, "A person who elects to engage in a sport or recreational activity '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' " (Huneau v Maple Ski Ridge, Inc., 17 AD3d 848, 849 [3d Dept 2005], quoting Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Dobert v State of New York, 8 AD3d 873, 874 [3d Dept 2004]; Tremblay v West Experience, 296 AD2d 780 [3d Dept 2002]). "If the risks of the activity are fully comprehended or perfectly obvious, [claimant] has consented to them and defendant has performed its duty [citation omitted]" (Turcotte v Fell, 68 NY2d 432, 439 [1986]; see Paone v County of Suffolk, 251 AD2d 563, 564 [2d Dept 1996]). Participants are presumed to have assumed the risk of potentially injury-causing conditions that are known, apparent or reasonably foreseeable (Turcotte v Fell, supra). "A participant does not, however, assume risks that result in a 'dangerous condition over and above the usual dangers inherent in the activity' " (Huneau v Maple Ski Ridge Inc., supra, quoting Rios v Town of Colonie, 256 AD2d 900 [3d Dept 1998], see Daigle v West Mtn., 289 AD2d 838, 839 [3d Dept 2001]), or that are "so serious as to justify the belief that precautions of some kind must have been taken to avert them" (Murphy v Steeplechase Amusement Co., 250 NY 479, 483 [1929]). "[A] participant in a sporting or recreational activity 'will not be deemed to have assumed the risks of...concealed or unreasonably increased risks' " (Tuttle v TRC Enters., Inc., 38 AD3d 992, 993 [3d Dept 2007], quoting Morgan v State of New York, supra, see Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 608 [3d Dept 2003]; Martin v State of New York, 64 AD3d 62 [3d Dept 2009]). "[W]hether 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., 31 AD3d 853, 854 [3d Dept 2006]; Sharrow v New York State Olympic Regional Dev. Auth., supra at 607; de Lacy v Catamount Dev. Corp., 302 AD2d 735, 736 [3d Dept 2003]; Hyland v State of New York, 300 AD2d 794, 795 [3d Dept 2002], lv denied 100 NY2d 504 [2003]; Martin v State of New York, supra).

The Court finds that there were no violations by defendant under GOL 18-103(4) to the extent that the culvert was 1-2 feet off the trail and not within the trail. The Court does not, however, find that claimant violated GOL 18-105(1) by allegedly skiing in the woods, as the Court credits the testimony of claimant, Joseph Malgieri and Mr. Kelly that claimant was on the trail prior to the accident.

The Court gives little weight to the testimony of Mr. Ware and Mr. Meyer regarding claimant skiing in the woods, as the Court concludes these witnesses formulated hypotheses to support their mistake of not marking the culvert. Further, their argument that the corduroy is the official trail and that skiing outside the corduroy is forbidden was unsupported by documentary evidence, a legal basis, or common sense. If skiers were forbidden to ski outside the corduroy, then skiers would be responsible to stop skiing every time it snowed until the grooming equipment returned to service the trail. The only documentary evidence proffered for the designation of trails was a map of such trails at Belleayre which did not delineate the edges of the trails. Additionally, Mr. Ware admitted that there was no rule that prohibited skiing in the powder.

Mr. Meyer's testimony, wherein he opined that claimant skied through the woods into the culvert, will not be given any weight as Mr. Meyer was a fact witness. The Court credits his testimony that he saw tracks leading to the culvert from the woods. However, Mr. Meyer did not see claimant skiing that day and it is possible that those tracks were made by another skier. As for the part of the accident report written by Mr. Meyer, the Court finds that whenever he wrote that section of the report, he was basing such conclusion on his opinion and as such it will not be given any weight. Further, the Court credits the testimony of Joseph Malgieri and Mr. Kelly, that they saw claimant skiing on the left side of the trail prior to the accident.

The Court finds that defendant did not keep the ski trail in a reasonably safe condition by its failure to mark the culvert adjacent to the trail. By not doing so, defendant failed to make the conditions as safe as they appeared to be, as the freshly fallen snow on an unmarked hazard deceived claimant. The unmarked culvert beneath the freshly fallen snow hid the actual edge of the trail from claimant. Although claimant was an expert skier, the Court finds that he did not assume the risk of an unmarked snow-covered culvert, a concealed risk, 1-2 feet off the trail and 35 feet from the nearest lollipop. Exhibits 2, 3, 19, 19A and 19B show how close the culvert was to the edge of Horseshoe Pass. The Court credits the testimony of Mr. Strauss that the culvert and the snowmaking equipment should have been separately marked.

Upon review of all the evidence, including the observation of all witnesses and an assessment of their demeanor, the Court hereby determines that defendant is fully liable under common law for the failure to mark a hazard adjacent to Horseshoe Pass. Damages will be determined at a subsequent trial. A conference regarding the scheduling of said trial will be scheduled under separate cover. All motions not heretofore decided are denied.

Let interlocutory judgment be entered accordingly.

December 8, 2010

Albany, New York


Judge of the Court of Claims

2. When a person starts to ski in a program run by the USSA he/she is assigned 990 points. By scoring higher than better rated competitors, the ranking is lowered. Sub-100 racers are typically aiming for the Olympics.

3. He skied approximately 200 giant slalom courses.

4. No objection was raised.

5. This portion of the report is in Meyer's handwriting and is undated.

6. The pattern left by snow-grooming equipment to make fresh snow more skiable for intermediate and novice skiers so they do not get their tips caught underneath the fresh snow (T:245).

7. During his examination before trial, he testified that it was "not likely" that the drainage pipe had to be marked prior to March 1, 2008.

8. Mr. Ware acknowledged taking photographs of the culvert and the area proximate to it. These photos, which were stipulated into evidence (Exhibits 4-16, D & E), were taken some time after the accident, probably in the following ski season. The writing on the photographs was placed on them the day they were taken and were based upon ski patroller Jon Meyer's input and Mr. Ware's observation of other people skiing through the woods. The Court sustained claimant's objections that the writings should not be considered by the Court.