Summary
affirming summary judgment to defendants where the decedent plaintiff, in an attempt to avoid ice in the center portion of the trail, “ski[ed] on a fifteen-foot wide portion along the right tree line, . . . hit an ice patch, fell, struck a tree, and suffered fatal injuries”
Summary of this case from Good v. Peak Resorts, Inc.Opinion
Argued January 14, 2000
February 24, 2000
In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Richmond County (Sangiorgio, J.), entered February 5, 1999, which granted the defendants' motion for summary judgment dismissing the complaint.
Howard M. File, Staten Island, N.Y., for appellant.
Carol A. Schrager, New York, N.Y. (Beth A. Willensky of counsel), for respondents.
CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
While skiing down an expert slope at premises operated by the defendant Hunter Mountain Ski Bowl, Inc., the decedent and his companion encountered icy conditions in the center portion of the trail. They decided to avoid the ice by skiing on a fifteen-foot wide portion along the right tree line, which they judged to have better conditions. Unfortunately, the decedent then hit an ice patch, fell, struck a tree, and suffered fatal injuries. Upon stipulation, the action was dismissed insofar as asserted against the defendant Hunter Water Supply Corp. The remaining defendants subsequently moved for summary judgment dismissing the complaint based on the doctrine of assumption of risk, and the Supreme Court granted the motion. We affirm.
The deposition testimony of the decedent's widow, the plaintiff, and of the decedent's skiing companion, established that the decedent was an experienced skier who had skied on the trail in the past. Accordingly, the decedent, as a voluntary participant in the sport of skiing, assumed the very risks that he encountered before his fatal accident (see, General Obligations Law § 18-101 Gen. Oblig.; Morgan v. State of New York, 90 N.Y.2d 471 ;Braun v. Davos Resort, 241 A.D.2d 533 ). The conclusory affidavit of the plaintiff's expert, submitted in opposition to the defendants' motion, was insufficient to raise an issue of fact as to whether the defendants unreasonably increased the risks to which the decedent was exposed (see, Osorio v. Deer Run Assocs., 231 A.D.2d 504 ).