Opinion
109187/2007
10-25-2010
Walter C. Bedder, Plaintiff, v. Windham Mountain Partners, LLC and SKI WINDHAM OPERATING CORP., Defendants.
ATTORNEY FOR THE PLAINTIFF : LURIE ILCHERT MAC DONNELL/RYAN ATTORNEY FOR THE DEFENDANT : CAROL A. SCHRAGER, ESQ.
ATTORNEY FOR THE PLAINTIFF :
LURIE ILCHERT MAC DONNELL/RYAN
ATTORNEY FOR THE DEFENDANT :
CAROL A. SCHRAGER, ESQ.
Paul Wooten, J.
Plaintiff Walter C. Bedder ("plaintiff") brings this negligence action to recover damages for personal injuries allegedly sustained during a snowboarding accident that occurred at the Windham Mountain Ski Resort ("Windham Mountain") in Windham, New York. Plaintiff alleges that he was injured when his snowboard struck an object that he believed to be a stump concealed by snow as he swerved to avoid hitting a young boy on the trail. Defendants are Windham Mountain Partners, LLC ("Windham"), the owner of the property, and Ski Windham Operating Corp. ("Ski Windham"), the operator of Windham Mountain (collectively "defendants"). The parties have completed discovery and a Note of Issue was filed on November 10, 2009. Defendants now move for summary judgment, pursuant to CPLR 3212, dismissing the complaint on the ground that plaintiff assumed the risk of injury by voluntarily participating in snowboarding at Windham Mountain, or alternatively, dismissing the complaint as against Windham on the basis that Windham was an out-of-possession landlord that owed no duty of care to plaintiff. Plaintiff has responded in opposition to the motion, and defendants have filed a reply.
The terms "snowboarding" and "skiing" will be used interchangeably herein in accordance with common usage.
BACKGROUND
In support of their summary judgment motion, defendants submit, inter alia, an affidavit and deposition of Theodore Davis, the Director of Mountain Operations for Ski Windham; plaintiff's deposition; and copies of a trail map, lift ticket and Warning to Skiers sign. Plaintiff submits, inter alia, his own affidavit; an affidavit of engineer Helge Lien; and portions of Davis' deposition. The following relevant facts are undisputed.
Both sides have also submitted photographs purporting to depict the accident scene. Defendants' photographs were taken by Davis within fifteen minutes of the accident. Plaintiff's photographs were taken by his counsel during the weeks after the accident and were based on descriptions of the location provided by plaintiff and Ski Patrol. Defendants claim that plaintiff's photographs show an area much further up the trail than where the accident actually occurred. For purposes of this motion, the Court need not decide whether plaintiff's photographs have probative value as the Court will accept, arguendo, plaintiff's contention that his snowboard struck a "stump" and that he landed on a "log."
On February 19, 2007, at around 3:30 p.m., plaintiff was snowboarding on the Whiskey Jack trail at Windham Mountain, a new ski trail that was built the previous summer. As he proceeded down the trail at about 25 mph, a young boy cut in front of him. Plaintiff swerved to avoid the boy and his snowboard purportedly struck an object that he believed to be a tree stump. As a result, he was propelled five or six feet into the air. He landed on a log just off the trail and his body continued to tumble about fifteen feet down the hill towards the woods. The accident allegedly resulted in physical injuries, which included injuries to his liver.
Plaintiff did not actually see the object that his snowboard hit. He claims that the "stump," which was about two inches round and a couple of inches high, was not apparent to him because it was concealed a few inches under the snow on the trail. He saw no signs or warnings of any concealed stumps on the trail that day.
At the time of the accident, plaintiff was around 28 years-old and had been skiing since he was ten and snowboarding since his late teens. He had taken professional skiing lessons two or three times, and snowboarded five to fifteen times a year at various resorts. He described himself as a "little better than normal snowboarder," and he preferred snowboarding on more challenging slopes. He mostly snowboarded on medium level trails and occasionally on more advanced trails. He had snowboarded at Windham Mountain once before and had been on the majority of their trails. He snowboarded on the Whiskey Jack trail for the first time on the day of the accident, and had made about 50 different runs on trails at Windham Mountain prior to the accident.
Plaintiff was aware prior to the accident that there was a risk of physical injury connected with snowboarding. He knew that skiers could collide on the slopes, and that swerving to avoid colliding with others could make one loose control. He had occasionally seen stumps or logs at or beyond the edge of the trail that were partially covered by snow, and he knew that if he encountered such conditions he might lose control and be injured. He also knew that anywhere on a ski trail there could be a thin layer of snow covering stumps or logs.Plaintiff was also aware that ski lift tickets referenced warnings about the risk of injury. In addition, the trail map that he carried with him at Windham Mountain contained a warning to skiers advising that inherent risks of the sport included surface and subsurface conditions such as stumps. There were also posted Warning to Skiers signs advising skiers that surface and subsurface stumps or other natural objects or man-made objects were inherent risks. Davis, who helped design the Whiskey Jack trail, indicated that it would be impossible to clear the mountain of every single stump or piece of wood, and that stumps or other forest debris would inevitably be present on all ski trails.
In March 2007, plaintiff's counsel retained Lien, a professional engineer with experience in construction and design of ski trails, to examine the Whiskey Jack trail. Lien visited the trail on numerous occasions and submitted an affidavit concluding that parts of the trail were not properly constructed and maintained. In Lien's opinion, Windham failed to properly construct the Whiskey Jack trail in accordance with industry standards because it allowed vertical obstacles, such as stumps, to remain on the trail which purportedly created a snagging hazard to trail users. Lien also opined that Windham failed to make adequate snow to cover the obstacles left on the trail or to cordon off the dangerous parts, which further increased the risk to skiers and created the impression that the trail was safe.
DISCUSSION
Defendants argue that they are entitled to summary judgment dismissing the complaint because encountering a "stump" on the trail was an inherent risk of snowboarding that plaintiff voluntarily assumed. In the alternative, Windham requests dismissal of the complaint as against it on the basis that it was an out-of-possession landlord that owed no duty of care to plaintiff.
Plaintiff contends that summary judgment should be denied as he did not assume the risk of hidden defects that were allowed to become hazards. He argues that the Whiskey Jack trail was negligently created because it allowed vertical obstacles to remain on the trail. He also contends that defendants continuously covered the trail with snow which concealed stumps and created a trap for everyone using the facility. He does not address Windham's alternate argument for dismissal.
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; CPLR 3212 [b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR 3212 [b]).
When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, Inc., 65 NY2d 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary judgment should be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]).
It is well established that "a ski area operator [or owner] is relieved from liability for risks inherent in the sport of downhill skiing [or snowboarding] . . . when the participant is aware of, appreciates and voluntarily assumes those risks" (De Lacy v Catamount Dev. Corp., 302 AD2d 735, 735-36 [3d Dept 2003]; see also Morgan v State of New York, 90 NY2d 471, 484 [1997] ["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"]; Farone v Hunter Mountain Ski Bowl, Inc., 51 AD3d 601 [1st Dept 2008]). "Whether a participant is aware of and appreciates a particular risk must be assessed against the background of the skill and experience' of the participant" (see De Lacy, 302 AD2d at 736, quoting Maddox v City of New York, 66 NY2d 270, 278 [1985]).
General Obligations Law § 18-101 provides in pertinent part:
"downhill skiing [or snowboarding], like many other sports, contain inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by . . . rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility. . . ." (emphasis added).
Thus, the New York State legislature has expressly included encounters with "stumps" as included among the inherent risks associated with downhill skiing or snowboarding (see Conery v Snow Time, Inc., 2004 WL 2347212 [NY Sup Ct Albany County 2004]). "A hazard which has been unreasonably increased or concealed, however, is not within the range of risks that are assumed" (Ruepp v West Experience Inc., 272 AD2d 673, 674 [3d Dept 2000]).
Here, plaintiff testified that he was an experienced snowboarder who, by his own account, was "a little better than normal." He had previously snowboarded on the majority of the trails at Windham Mountain, having made at least 50 runs on trails there prior to the accident. Further, he acknowledged that snowboarding presented a risk of physical injury by encounters with snow-covered stumps that might be present at or beyond the edge of a trail, and that a thin layer of snow could cover stumps anywhere on a ski trail. Thus, the Court finds that plaintiff was aware of and appreciated the risks associated with encountering the "stump" while snowboarding on the Whiskey Jack trail (see Sontag v Holiday Valley, Inc., 38 AD3d 1350, 1351 [4th Dept 2007] [defendants met initial burden by "establishing that plaintiff was an experienced skier who had skied at defendant's ski resort more than 100 times over a 30-year period and was sufficiently aware of the inherent risks of downhill skiing, including the risk of injury caused by moguls or bumps in the terrain regardless of whether they could be seen"]; Farone, 51 AD3d at 602; Painter v Peek'n Peak Recreation, Inc., 2 AD3d 1289, 1290 [4th Dept 2003]; Hyland v State of New York, 300 AD2d 794, 795 [3d Dept 2002]; Conery, 2004 WL 2347212, at *1).
Plaintiff's argument that he did not assume the risk because defendants created a trap-like condition by negligently constructing and maintaining the trail fails to raise a triable issue of fact (see Alvarez, 68 NY2d at 324; Farone, 51 AD3d at 602). Plaintiff does not dispute that the object that he claims his snowboard struck, i.e. the "stump," is statutorily enumerated as an inherent risk associated with downhill skiing and snowboarding (see General Obligations Law § 18-101; Conery, 2004 WL 2347212, at *1 [concluding that plaintiff assumed risk of encountering injury-producing object on trail at Windham Mountain where the object that was within the confines of section 18-101]).
Moreover, Lien's conclusory affidavit is insufficient to raise an issue of fact regarding whether defendants created a dangerous condition over and above the usual dangers inherent in the sport of snowboarding (see Sontag, 38 AD3d at 1351 [skier who fell after hitting bumps while swerving to avoid hitting two skiers in darkened area at bottom of trail failed to submit evidence sufficient to raise an issue of fact regarding whether defendants created a dangerous condition over and above the usual dangers inherent in the sport of downhill skiing]; Farone, 51 AD3d at 602; Hyland, 300 AD2d at 796).
The Court therefore concludes that plaintiff assumed the risk of encountering the "stump" while snowboarding on the Whiskey Jack trail, and as such, defendants are entitled to dismissal of plaintiff's negligence action as a matter of law (see Farone, 51 AD3d at 602; Conery, 2004 WL 2347212, at *1-2). Accordingly, defendants' motion for summary judgment is granted.
The Court need not reach Windham's alternate argument for dimissal.
For these reasons and upon the foregoing papers, it is,
ORDERED that defendants' motion for summary judgment dismissing the complaint is granted; and it is further,
ORDERED that the complaint against defendants is hereby dismissed in its entirety; and it is further,
ORDERED that defendants shall serve a copy of this order, with notice of entry, upon plaintiff.
This constitutes the Decision and Order of the Court.
Paul WootenJ.S.C.