Opinion
# 2019-040-017 Claim No. 126207
02-14-2019
SCOTT STENOSKI v. NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
DelDuchetto & Potter By: Thomas J. Potter, Esq. LETITIA JAMES Attorney General of the State of New York By: Glenn C. King, Esq., AAG
Synopsis
Court finds that Claimant failed to establish by a preponderance of the credible evidence that Defendant was negligent with respect to his snowboarding accident.
Case information
| UID: | 2019-040-017 |
| Claimant(s): | SCOTT STENOSKI |
| Claimant short name: | STENOSKI |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126207 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | DelDuchetto & Potter By: Thomas J. Potter, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Glenn C. King, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 14, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The Court finds that Claimant, Scott Stenoski, failed to establish, by a preponderance of the credible evidence, that Defendant, New York State Olympic Regional Development Authority ("Defendant," "ORDA," or the "State"), was negligent in connection with personal injuries Claimant sustained in a snowboarding accident. The Claim arose on February 28, 2015 when Claimant fell and injured himself on the Wilmington Trail at Whiteface Mountain (hereinafter "Whiteface").
A bifurcated trial, addressing liability issues only, was held on May 1, 2018 at the Court of Claims in Albany, New York. There were four witnesses: Claimant; his friend, Brandon Tucker; Mark E. Kaiser (a volunteer ski patroller at Whiteface); and Todd E. King, Jr. (a ski patroller employed by ORDA who also had emergency medical training). Thereafter, the parties requested and were granted additional time to order a transcript and submit post-trial memoranda.
FACTS Claimant arrived at Whiteface early on the morning of February 28, 2015 to snowboard with Mr. Tucker and another person. They spent the morning in Whiteface's snow park area, had lunch, and then went to the top of the mountain to snowboard some other trails, before taking the Wilmington Trail as their last run of the day. Mr. Stenoski was "shredding," or slaloming, back and forth across the trail, a movement he likened to a "floating leaf," with periodic tucks to turn around, corner, and start again (Tr., p. 32).
The accident occurred between 2:00 p.m. and 2:30 p.m. when the group was about halfway down the Wilmington Trail. Claimant said that he and Mr. Tucker were snowboarding about an arm's length away from each other. At trial, Claimant testified that, just prior to the accident, he was traveling at about 10 miles per hour (Tr., p. 36). At his earlier deposition, however, he said that he had "no idea" how fast he was going (id., p. 48).
At trial, Mr. Stenoski said that he was looking forward and saw, in his peripheral vision, Mr. Tucker quickly veer off to the right (Tr., pp. 36, 52). At his earlier deposition, however, Claimant said when he "looked forward, that's after seeing [Mr. Tucker] veer off to the right, it went blank" (id., pp. 53-54 [emphasis supplied]). At trial, Claimant testified that he then "hit something extremely hard," felt his body spin, and began sliding down the trail, grasping at the snow to try to halt his progress (id., p. 37). Claimant did not see anything prior to the impact, and did not know if he lost consciousness after his collision, but agreed that he could have (id.).
Mr. Tucker said that he veered to the right to avoid a snow gun, which he saw when he was about 10-15 yards away from it (Tr., pp. 65-66, 71; see Ex. 6-A [red mark indicates Mr. Tucker's location when he saw snow gun W42]). The witness further said that, when he veered right, he lost sight of Claimant and, when he looked back, he saw Mr. Stenoski sliding down the hill (id., p. 68). Mr. Tucker saw the snow gun, but could not say if a lollipop pole was nearby (id., pp. 71-72). He agreed that he did not actually see Claimant fall or hit something, or whatever else it was that caused him to slide down the trail (id.).
Claimant and Mr. Kaiser each recognized a pipe with "W42" printed on it in red as a snow gun or pole gun (hereinafter, "snow gun") (Tr., pp. 57, 94; see Ex. B).
Mr. Kaiser identified hazard markers, orange bamboo poles with orange discs attached to the tops, commonly called lollipops [each, hereinafter, a "lollipop pole"]) (id., pp.83-84, 96; see Ex. 5 [an intact lollipop pole is visible in the background of the photo]). --------
At trial, Claimant said that, after he came to rest, he "assumed" that he collided with an unmarked metal pole that he saw above him on the trail, 15 or 20 meters away (i.e., the snow gun), and that's what he told the ski patroller when he arrived on the scene (Tr., pp. 37-39). He agreed, however, that, at his earlier deposition, he said that he told the ski patrol that he did not know what had happened (id., pp. 56-57). Mr. Tucker also had assumed that Mr. Stenoski hit the snow gun (id., p. 73).
Mr. Stenoski also said that when Mr. Tucker came to him, his friend was "just freaking out." (Tr., p. 37). At trial, Claimant said that he did not ask Mr. Tucker what had happened, but, at his earlier deposition, he did say that he had asked, and that Mr. Tucker looked back and told him that he must have hit a snow gun (id., pp. 54-56). Mr. Stenoski and Mr. Tucker each agreed, however, that Mr. Tucker did not witness Claimant's accident, or see what caused Claimant to go out of control (id., pp. 56, 63).
Mr. King responded to Claimant's accident (Tr., p. 105). He said that Mr. Stenoski was 10-20 feet away from the snow gun (id., p. 117). Mr. King did not see any lollipop pole, but neither was he looking for one while he attended to Mr. Stenoski (id.). Mr. King called for a toboggan and helped transport Claimant to the Whiteface medical services area (id., p. 118).
Claimant said that, after he was removed from the slope and taken to the bottom of the mountain, he was "coming in and out of it, delirious" (Tr., p. 40). He remembered being questioned about the accident and that a number of possible causes were suggested to him, but he said that he did not know what had happened (id.). Mr. Stenoski also remembered signing some documents without having read them, one of which was the Whiteface Mountain Injury Report (id., p. 41; see Ex. 4). Mr. King said that he wrote the entire injury report, with the exception for Claimant's signature (Tr., p. 107). He did not recall if Mr. Stenoski read the report before he signed it (id., p. 109). The report includes a space for a description of the incident in the injured person's own words, which states: "I got cut off and pushed into a pole" (Tr., p. 44; Ex. 4). Claimant did not recall telling that to the ski patroller, or that such an event occurred (id.). Mr. King believed that those were Claimant's words (id., pp. 110, 118-119). Mr. Stenoski said that what he did tell the ski patroller was that he "had hit something, but I didn't know what I had hit when they were taking me off the mountain" (id., p. 44; see also p. 54). Mr. King's recollection was refreshed by his earlier deposition in which he stated that, while still at the accident site, Mr. Stenoski "pointed to the pole labeled W42 and said he ran into it" (id., pp. 111-112). Mr. Tucker does not recall if the ski patroller asked him how the accident occurred (id., p. 69).
After arrangements were made to transport Claimant to a hospital, Mr. King went back to the accident scene, between 3:00 p.m. and 4:00 p.m. that same afternoon, to take photographs (Tr., pp. 106-107, 119; see Exs. 5-9 & C). Mr. King did not recall if the lollipop pole was lying on the ground when he first arrived at the accident scene to tend to Mr. Stenoski, nor did he know how, or how long, the pole was broken (id., pp. 119-120; see Ex. C). He did not search for the orange disc that should sit on top of the lollipop pole when he went back to take pictures (id., p. 120). He agreed that he never would mark a manmade hazard with only a bamboo pole, without the orange disc on top (id., p. 121). He further agreed that the injury report does not indicate that the lollipop by snow gun W42 was missing (id., pp. 112-115). He noted, however, that a hundred or more people could have passed by the accident scene between the time Claimant was removed from the Wilmington Trail, and the time that he returned to take photographs (id., p. 114). Mr. King said that he did not call to have a new lollipop pole delivered to mark snow gun W42 when he was taking the pictures because skiing was finished for the day so that no one from the public was on the mountain (id., pp. 125-126). The only person left who could have brought a disc at that time was the person on top of the mountain who was there to bring medical supplies if a ski patroller needed them (id., pp. 122-123). Thus, he decided that the new lollipop pole could wait for the next morning's trail inspection (id., p. 123).
Mr. Kaiser had no independent recollection of events, but agreed that ORDA documents indicate that he worked on the date of Mr. Stenoski's accident and inspected the Wilmington Trail, among others, at about 9:10 a.m. and again at about noon (id., pp. 79, 81-82; Exs. 1-3). Mr. Kaiser agreed that his inspections included skiing the entirety of the trail, noting any unsafe conditions, including any missing lollipop poles (id., pp. 83-84, 96; see Ex. 5). Mr. Kaiser and Mr. King each agreed that, by statute, any manmade hazard within the travel portion of the trail that is under six feet tall must be marked by such a lollipop pole (id., pp. 83-84, 104-105). Mr. Kaiser did not recall, if, during his inspections, he noticed a lollipop pole that was missing its disc on top, but if he had, Mr. Kaiser said that he would have reported it and it would have been replaced (id., pp. 84, 98, 100). Likewise, if he had seen a lollipop pole that was knocked down, he said that he either would have replaced it, if he could, or else, he would have radioed for the next patroller to bring a drill to make a new hole in the snow to hold the lollipop pole upright (id., pp. 98-99). Mr. King said much the same thing (see id., pp. 120-121).
Mr. Kaiser agreed that the snow gun is a permanent structure with its base embedded in the ground (Tr., p. 95). He further agreed that the little orange stub in front of snow gun W42, as well as a longer portion of orange pole lying on the snow some distance from the snow gun, were part of a lollipop pole and its presence suggested that snow gun W42 was probably less than six feet in height (Tr., pp. 89, 92; see Exs. 5 & 8). Mr. King thought so too (id., p. 116). Neither Claimant, nor Mr. Kaiser knew, however, if the stub of a lollipop pole next to the snow gun was there at the time of the accident (id., pp. 58, 92-93; see Ex. B, Ex. 8). As noted above, Mr. Tucker did not know if there was a lollipop pole when he passed the snow gun (Tr., pp. 71-72; Ex. 6-A), nor did Mr. King recall if one was lying on the ground when he first arrived at the accident scene to tend to Mr. Stenoski (Tr., pp. 119-120; Ex. C).
LAW
As a ski area operator, Defendant is subject to certain duties imposed by the Safety in Skiing Code (General Obligations Law [hereinafter, "GOL"]§18-101 et seq. [hereinafter, the "Code"]). The statutory duties are not exclusive, however, and common-law principles must be applied to accidents at ski areas unless a particular hazardous condition is specifically addressed by the Code (GOL §18-107; see Dailey v Labrador Dev. Corp., 136 AD3d 1380, 1381 [4th Dept 2016]; Sytner v State of New York, 223 AD2d 140, 143 [3d Dept 1996]; Dalomba v State of New York, UID No. 2016-032-146 [Ct Cl, Hard, J., Sep. 22, 2016]).
As relevant to this Claim, among the duties the Code imposes upon ski area operators are: (1) to conspicuously mark, either with crossed skis, or blaze orange poles topped with circular blaze orange-colored markers that are a minimum of six feet above the snow level (i.e., lollipop poles), the location of manmade obstructions, such as snow-making equipment (including snow guns), that are within the borders of a trail, when the top of such obstructions are less than six feet above the snow level (see GOL § 18-103[4]; 12 NYCRR §§ 54.5[d], 54.6, Table I); and (2) to inspect trails that are open to the public at least twice daily and to record the results of such inspections in a logbook, including the existence of certain obstacles or hazards (GOL § 18-103[6][c]; 12 NYCRR § 54.5[f][3]). At the same time, skiers have the duty to remain in constant control of their speed and course at all time so as to avoid contact with plainly marked obstacles (GOL § 18-105[4]).
As previously noted, however, the Code supplements, but does not abolish, the applicability of the common-law analysis to accidents at ski areas (Sytner v State of New York, supra at 144; Dalomba v State of New York, supra; Hyland v State of New York, UID No. 2001-007-118 [Ct Cl, Bell, J., Aug. 8, 2001]). Thus, "when the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 [1984]). Accordingly, while the State is not an insurer of the safety of visitors to its premises (see McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law duty to maintain its facilities "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir. 1972], cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]).
To establish a prima facie case of negligence in a premises liability claim asserting that injury resulted from a dangerous condition, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, [3d Dept 2011]).
The existence of a dangerous condition is generally a question of fact that may hinge upon the facts and circumstances peculiar to each case (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]; Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]).
"To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314,1315 [3d Dept 2007]).
A claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]); Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds 86 NY2d 744 [1995]; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43 [Ct Cl 2002], affd 307 AD2d 605 [3d Dept 2003]).
Finally, "[i]n determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
DISCUSSION
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant failed to establish his Claim by a preponderance of the credible evidence because he did not establish that a dangerous condition existed, or, assuming that one did exist, that Defendant either created the dangerous condition, or had actual or constructive notice thereof, and failed to alleviate the condition within a reasonable time.
As a preliminary matter, the Court notes that each of the witnesses testified sincerely. Nevertheless, the witnesses were not equally persuasive. There were a couple of significant inconsistencies between Claimant's testimony at trial and his statements made at his earlier deposition. At trial, Mr. Stenoski asserted that, just prior to the accident, his speed was about 10 miles per hour and that he was looking forward just before his accident. At his earlier deposition, however, Claimant professed to have "no idea" how fast he was going and said that he looked forward only after he watched Mr. Tucker veer to the right. The discrepancies were noted at trial. Yet, no explanation was provided to account for how Claimant's recollection at trial became so much more precise, and more favorable to his case, than it had been at the time of his earlier deposition. Accordingly, the Court is unable to credit Mr. Stenoski's trial testimony and adopts his deposition testimony concerning his speed and the direction in which he was looking.
The Court concludes that ORDA owed a duty of care to Claimant, both under the Code, as well as at common law. The Court finds that snow gun W42 was under six feet tall and, therefore, that a lollipop pole was needed to mark that manmade hazard. The photographic exhibits clearly reveal that an orange stub from a lollipop pole was next to the snow gun and that the rest of the pole was lying on the snow nearby. To the Court's mind, it is implausible to imagine that a patron at Whiteface gratuitously placed the lollipop pole. Rather, someone at ORDA must have determined, at some point, that the snow gun constituted a hazard which required a marker. Defendant also had a duty pursuant to the Code to inspect the Wilmington Trail and to note any obstacles or hazards. Finally, ORDA had the common-law obligation to maintain its premises, including Whiteface, in a reasonably safe condition under the prevailing circumstances.
Claimant failed to establish, however, that Defendant breached any of those duties.
To the Court's mind, Mr. Stenoski barely established that he hit snow gun W42. Both Claimant and Mr. Tucker assumed that Mr. Stenoski collided with the snow gun, but neither of them saw Claimant hit the snow gun, or how the accident occurred. Nevertheless, the Court concludes that, given the impact of Claimant's collision, the snow gun is the only likely explanation, no other hazard or obstacle having been identified on that portion of the Wilmington Trail. No testimony was offered to suggest that a fall could account for the impact with something "extremely hard" described by Mr. Stenoski, or the damage to his snowboard (see Exs. 15 & 16). The Court determines that the entry in the injury report that Claimant was cut off and pushed into the pole by another skier is in error, which the Court attributes to confusion by Mr. King during the hurly-burly of treating the injured and, in his own words, "delirious" Mr. Stenoski while, simultaneously, attempting to ascertain the cause of Claimant's injury.
Claimant failed, however, to establish that snow gun W42 was unmarked, in violation of the Code. The Court concludes that, under the circumstances of this Claim, a snow gun properly marked by a lollipop pole does not constitute a dangerous condition. As noted above, and as the photographic exhibits show, at some point a lollipop pole was placed next to the snow gun, and the broken stub and bamboo shaft were still there when Mr. King returned to the accident scene. Thus, the Court rejects any suggestion that the lollipop pole was missing altogether. Moreover, the Court is unable to determine from this record when the pole was broken. Claimant failed to show that the pole was broken and/or damaged before his accident. Mr. Stenoski did not see anything prior to the impact and Mr. Tucker remembered seeing the snow gun, but could not say if the lollipop was there too. Thus, the lollipop pole might have been broken prior to the accident. It also is possible, however, that Mr. Stenoski himself broke the pole when he collided with the snow gun. Mr. King's photographs show that the broken pole was still there after the accident, but they do not establish the condition of the lollipop pole when the accident occurred. As Mr. King noted, as many as 100 other Whiteface patrons could have passed by the accident spot during the intervening period. Thus, it also is possible that the lollipop pole was broken sometime after Claimant's accident, but before Mr. King returned to take photos. Moreover, Mr. Kaiser did not note any missing or damaged lollipop poles during either of his two inspections of the Wilmington Trail prior to the accident.
Assuming, arguendo, that Claimant collided with the unmarked snow gun W42 which constituted a dangerous condition, he failed to show that ORDA had notice of that dangerous condition. As the Court has determined above, at some point in time, there was a lollipop marker in place. The Court therefore finds that ORDA did not create a dangerous condition by failing altogether to place a lollipop pole by snow gun W42. Moreover, the record does not indicate that anyone observed or reported that snow gun W42 was unmarked, or lacked the proper lollipop pole, or that the one in place was broken. Thus, the Court determines that Defendant lacked actual notice that the lollipop previously placed there was missing and/or damaged. Likewise, Claimant failed to establish that ORDA had constructive notice that a dangerous condition existed because he failed to show when the lollipop pole was damaged, or even if it was broken, prior to the time of his collision. Thus, the Court cannot determine how long the pole was broken so that it, likewise, cannot conclude whether or not ORDA had sufficient time to discover and remedy the condition.
Likewise, ORDA met its duty to inspect the Wilmington Trail, by Mr. Kaiser's two inspections undertaken in the hours before Claimant's accident, and which did not note any obstacles or hazards there.
The Court further finds that Claimant did not establish that ORDA failed to maintain snow gun W42 on the Wilmington Trail in a reasonably safe condition in view of all the circumstances discussed above.
CONCLUSION The Court concludes that Claimant failed to establish, by a preponderance of the credible evidence, his Claim that Defendant breached any duty with respect owed to him under the Code, or at common law.
The Claim is, therefore, dismissed.
All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.
The Chief Clerk is directed to enter Judgment accordingly.
February 14, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims