Opinion
# 2016-032-505 Claim No. 124011
08-24-2016
KENNETH BRUST v. THE STATE OF NEW YORK and the NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
O'Connell & Aronowitz, P.C. By: Stephen R. Coffey, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Glenn C. King, Assistant Attorney General, Of Counsel
Synopsis
Following a bifurcated trial, the Court found defendants liable for injuries claimant sustained when he collided with a rope that employees had placed across a trail, intending to close it off to skiers, without providing any notice or warning of such closure.
Case information
| UID: | 2016-032-505 |
| Claimant(s): | KENNETH BRUST |
| Claimant short name: | BRUST |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and the NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY |
| Footnote (defendant name) : | Caption amended to reflect properly named defendants. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124011 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | O'Connell & Aronowitz, P.C. By: Stephen R. Coffey, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Glenn C. King, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | August 24, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim seeks to recover money damages for injuries that claimant sustained in a skiing accident on March 7, 2013 at Gore Mountain, a ski resort owned and operated by defendants. Claimant alleges that, while skiing at Gore, he collided with a rope that defendants' employees had placed across the Gully trail, intending to close it off to skiers, without providing any notice or warning of such closure. Claimant was unable to stop and skied under the rope, sustaining serious injuries, some of which caused permanent disfigurement to his face and jaw.
FACTS
In the simplest terms, this case involves a series of trails on two sections of Gore Mountain, known as Burnt Ridge and Bear Mountain. The relevant trails on Bear Mountain are Twister and Twister's Little Sister, and the relevant trails on Burnt Ridge are Echo, Gully, and Cedars Traverse. The five trails constitute a path or a corridor down the mountain, eventually leading to Burnt Ridge Quad, a chairlift that transports skiers to the top of the mountain (Exhibit L). For purposes of this case, the top trail of the ski corridor is Twister, which a skier can take all the way to the base of the mountain or, upon approaching the base, he or she can veer left onto Twister's Little Sister. Twister's Little Sister is approximately 100 feet long and is essentially a connector trail between Bear Mountain and Burnt Ridge. Twister's Little Sister then connects to Echo, where a skier can veer to the right to return to the base of the mountain or veer to the left onto Gully, which leads to Cedars Traverse, and ends at Burnt Ridge Quad.
THE SKIERS
At the time of the accident, claimant was 72 years old, had been skiing for over 40 years, and was certified to teach alpine and adaptive skiing. Claimant testified that, prior to going to Gore Mountain on the morning of March 7, 2013, he checked the internet for the ski conditions and noted that they were very good (T: 544). He arrived at Gore with his partner, Jan McCann, and met Harold Stackhouse, Susan Rollings, and Paul Maguire, whom he knew from a mountain club (T: 538, 545). Claimant stated that, on that particular day, the group planned to ski Twister to Twister's Little Sister to Echo to Gully to Cedars Traverse, eventually returning to Burnt Ridge Quad (T: 545-546). He estimated having skied that precise route approximately 100 times in the past (T: 549).
Unless otherwise indicated, all page references are to the three-volume, consecutively paginated trial transcript.
Claimant was unsure whether he checked the conditions online the night before going to Gore Mountain or early that same morning.
Claimant further explained that, when the group arrived at Gore Mountain, they learned that Twister's Little Sister was closed, so they skied Twister about three times directly down to the base of the mountain (T: 546-548). Claimant testified that the last time he took the gondola from the base to the top of Twister, there was a sign indicating that Burnt Ridge Quad was open (T: 549). At that point, as claimant began to ski down Twister, he stopped at the top of Twister's Little Sister, where he met Stackhouse, Rollings, and Maguire, who were helping the ski patrollers drop the rope there, opening the trail (T: 549). The group then planned to ski Twister's Little Sister to Echo to Gully and down Cedars Traverse, ending up at Burnt Ridge Quad (T: 549). As claimant began to ski down Twister's Little Sister, he moved to the left side of the mountain because the snow is softer and it is easier to pick up speed, which he wanted to do so that he did not have to pole and skate through Gully and Cedars Traverse (T: 552-554). He estimated that he was skiing at 25-30 miles per hour in a tuck position, which he remembered having done on numerous occasions in the past (T: 557-558). Claimant noted that, once he reached Gully, there was an orange racing fence along the left side of the trail that partially obscured his view down the mountain (T: 556-557). Claimant stated that his last memory of that day is seeing the orange fence on his left before waking up in ICU (T: 557-558).
The tuck is an aerodynamic position that is used in ski racing, in which a skier has his chest resting on his knees with his arms in front of him, in order to create the least resistance to the wind.
Stackhouse testified that he has been skiing for over 40 years and that, prior to March 7, 2013, he had skied at Gore Mountain at least 100 times over the course of two or three seasons (T: 403-404, 429). Stackhouse confirmed claimant's testimony that Twister's Little Sister was closed early on in the day, so like claimant, he skied Twister a few times to the base of the mountain and returned to the top via the gondola (T: 414-415, 430). Stackhouse also stated that, just prior to the accident, he too believed that Burnt Ridge Quad was open because it was listed as such on the trail conditions report, on a sheet at the top of the gondola, and in the lodge (T: 417). When Stackhouse reached Twister's Little Sister on the last run before claimant's accident, two ski patrollers were dropping the rope to open the trail, and one ski patroller asked Stackhouse for assistance in removing a lollipop to which the rope had been affixed (T: 416). Stackhouse testified that, when the ski patrollers dropped the rope to Twister's Little Sister, he assumed that Echo, Gully, and Burnt Ridge were all open, as he had never seen Twister's Little Sister open and Gully and Burnt Ridge closed in all of his years of skiing at Gore (T: 417).
A lollipop is a type of warning marker used to warn skiers of potential hazards or trail closures (Exhibit 51). It is blaze orange in color and is comprised of a pole and a round top marker that is eight inches in diameter (T: 416).
Stackhouse further testified that he, claimant, Rollings, and about 8-10 other skiers then started down Twister's Little Sister, with Stackhouse in the lead (T: 423). He stated that there was a high overcast that day and the light was flat, meaning that, without sun, it was difficult to see contrasts in the snow (T: 413). As he approached Gully, Stackhouse was skiing in a tuck position at approximately 30 miles per hour because the last stretch of Echo before Gully is steep (T: 418-419, 422). At the left turn from Gully onto Echo, Stackhouse was skiing just to the right of the center of the trail (T: 420; Claimant's Exhibit 29). He stated that he first saw the rope across Gully from less than 100 feet away, and upon seeing it, he "instinctively" skied to the far left of the trail, where the rope was highest, so that he could ski under it (T: 424). Stackhouse testified that the rope was located below "a little hump" at the beginning of the Gully trail and that there were no warning signs or lollipops indicating that the trail was closed (T: 425-426).
Rollings testified that, as the group skied down Twister's Little Sister, she followed behind Stackhouse, who she knew had skied the trail before (T: 501). As she approached Echo, Rollings was skiing in a tuck position to the left of the center of the trail, when she observed Stackhouse "do kind of a weird left turn" (T: 502). When asked to elaborate, Rollings explained that she saw Stackhouse "turn[] in a way that didn't seem quite right," and then "sort of disappear[] from view . . . so [she] presume[d] he went down the trail" (T: 503). Rollings then saw the rope across Gully from about 50 feet away (T: 505). She testified that, although she did not have time to react, she maintained her tuck position and was able to ski under the rope (T: 505).
Maguire testified that he is a certified alpine and adaptive ski instructor and has skied at Gore Mountain on hundreds to thousands of occasions since 1966. Maguire corroborated claimant's and Stackhouse's testimony that, after skiing Twister a few times that morning, the group saw a sign at the base of the mountain indicating that Burnt Ridge Quad had opened (T: 464). Maguire further stated that the gondola attendant informed him that Burnt Ridge Quad was open (T: 465). When the group reached Twister's Little Sister, Maguire spoke to the ski patrollers who were removing the rope there, who also told him that Burnt Ridge was open (T: 465-466). Maguire stated that, in the 100 times he has skied that trail, he has "never seen a rope across Gully" (T: 466). As the group started down Echo from Twister's Little Sister, Maguire followed behind claimant (T: 467). Maguire testified that he saw claimant move to the left side of Echo, while he moved to the right side of the trail about 100 feet behind claimant (T: 467, 469). Maguire stated that he increased his speed at that point "because [he] knew that there was a runoff at the bottom of Gully," and he did not want to have to walk once he reached Cedars Traverse (T: 468). Maguire then saw claimant attempting to slow down or stop, at which point he noticed the rope across Gully and saw claimant go up into the air (T: 469). He testified that he remembers the rope being below the incline at the start of the Gully trail (T: 470-471).
William O'Boyle, also known as "Whip," testified that he did not know claimant or his friends prior to the day of the accident but met them at the top of Twister's Little Sister when the rope was being dropped (T: 518-520). O'Boyle has been skiing for over 30 years and stated that he has skied the route in question on approximately 25-30 prior occasions (T: 512-513, 519). He testified that, when the ski patrollers dropped the rope at Twister's Little Sister, one "ski patroller said something like, have [at] it boys" (T: 521). O'Boyle stated that, when Twister's Little Sister opened, he assumed that Gully and Burnt Ridge Quad would also be open (T: 519). Realizing that claimant was "a better skier," O'Boyle followed him down the mountain, and the two skied on the left side of the trail next to the orange fence (T: 521-522). O'Boyle noted that the fence was "distracting" and that "the light was terrible that morning" (T: 521, 522). As he and claimant reached the bottom of Echo, there were "two downhill declines, and [claimant] was just going into that one by where the rope was," when "he did a one and a half back flip [and] almost landed on his head" (T: 522-523). O'Boyle stated that he observed the rope across Gully and claimant's accident almost simultaneously, and then immediately stopped to warn the other skiers coming down the mountain that Gully was closed (T: 523). When asked about the position of the rope, O'Boyle explained that it was tied from a tree on the left side of the Gully trail to a snowmaking hydrant, which was downhill on the right side of the trail (T: 525-527; Exhibit 45). O'Boyle stated that the rope was located below the incline of snow at the top of Gully (T: 532).
It is noted that the transcript indicates that O'Boyle stated that the ski patroller told him and the other skiers to "have had it" (T: 521). In light of the context of O'Boyle's testimony, however, the Court deems this to be a scrivener's error and assumes that O'Boyle actually stated that the ski patroller told him and the other skiers to "have at it" as he was opening Twister's Little Sister.
Angelo Paccione - a veteran skier for over 30 years - testified that he was skiing on the left side of the trail behind O'Boyle that morning. He stated that, from within about 75 feet of the rope across Gully, he saw O'Boyle turned towards him and waving his poles over his head, alerting him of the trail closure (T: 576). As Paccione slowed down, he saw claimant lying on the ground and stayed with him until he was picked up by the ski patrollers (T: 578).
THE EMPLOYEES AND VOLUNTEERS
Mark Anderson testified that he has been the Ski Patrol Director at Gore Mountain since 1994 and that he had the ultimate responsibility for opening and closing trails on the day of claimant's accident (T: 7-8). Anderson explained that, on the morning in question, Gore's marketing department posted information on the facility's website indicating that Burnt Ridge Quad and all of its ski trails would be open, including Gully and Twister's Little Sister (T: 38, 41-42; Exhibit 4). However, Anderson testified that Burnt Ridge closed at about 9:30 a.m. that morning due to a mechanical problem with the chairlift (T: 59). Anderson stated that, although the closure of Burnt Ridge should have prompted the closure of all of its "access points," Gully remained open until about 10:30 a.m. (T: 50, 69).
Anderson further testified that, around 10:30 a.m., he was informed that Burnt Ridge Quad "was good to go" (T: 91). Anderson stated that he had skied the corridor about 15 to 20 minutes earlier, at which time Gully was open (T: 91). Assuming that that was still the case, Anderson directed that the rope to Twister's Little Sister be taken down and the trail opened (T: 91). It was clear from Anderson's testimony that he "fully expected . . . that Gully was open" when he directed the ski patrollers to drop the rope at Twister's Little Sister (T: 86). Anderson conceded that, when skiers came over Twister's Little Sister, they "could" have an expectation that Gully would be open; when questioned further, he stated, "That would be an expectation" (T: 67-68). Anderson then explained that he did not use the two-way radio system to alert the ski patrollers that he was opening Twister's Little Sister because "that would be excessive use of the radios [while] opening and closing terrain" (T: 102). He agreed, however, that "the safe thing to do" would have been to let someone know that, when the rope at Twister's Little Sister was dropped, the rope across Gully was still up (T: 118). Anderson further acknowledged that Gore sometimes uses orange lollipops and warning signs to indicate that a trail is closed, but that neither were placed on or near the rope closing off Gully that day (T: 207-208).
Using Exhibit 29 as a reference, which is a photograph taken on the day of the accident, Anderson testified that the rope across Gully was placed approximately 15 feet past the orange racing fence on the skier's left, and that the Gully trail began at the end of the fence (T: 129-130). He explained that there is a decline at the bottom of Echo heading into Gully, and that, although the rope was placed on top of the knoll on Gully, there is a "down slope" on the trail heading towards the rope (T: 131-132). The rope itself, which extended about 100 feet across the trail, was tied from a tree on the skier's left side to a snowmaking hydrant on the right, which was at a lower point than the tree, causing the rope to extend "down the trail a bit" (T: 165; Exhibit 39). Anderson admitted that the racing fence would partially obscure the vision of a skier who, like claimant, was skiing on the far left of the trail (T: 178-179). As for a skier's sight distance with regard to the rope, Anderson voiced several different estimates. During his examination before trial, Anderson was asked, "If you were on the left-hand side, left meaning as you're coming down Echo, how far away could you see that rope?" (T: 215). At that time, Anderson responded that he did not know (T: 215). When asked the same question on direct examination, Anderson estimated that the soonest a skier could see the rope while skiing on the left was from 150-200 feet away (T: 178-179). On cross-examination, Anderson stated that he believed that a skier could see the rope from 700 feet away (T: 206-207).
Anderson testified that the estimation of 700 feet was determined through the use of a hip chain. At first, he testified that he did not try to determine sight distance from the left side of Echo (T: 205), but he later testified that he used a hip chain to measure the distance from the left side of the trail (T: 207). Anderson did not provide specifics as to where on the trail the measurement was taken but he did state that it was taken in the summer months (T: 206). Defendants' Exhibit B - which is a diagram made by Anderson that was referenced at trial - was not offered into evidence.
Robert Heunemann was working as a dispatcher at Bear Mountain on the morning of claimant's accident. In that capacity, Heunemann assigned work details to volunteer and professional ski patrollers - one of whom was James Marco, Jr., a volunteer member of the National Ski Patrol (T: 252, 313-314). Although Marco testified that, at approximately 10:30 a.m., Heunemann instructed him to close the Gully trail (T: 329-330), Heunemann was unsure whether he issued such an order (T: 259-260). Heunemann explained that he learned that Burnt Ridge Quad was shut down around 9:30 a.m. due to mechanical problems, but stated that he could not recall who advised him of the closure (T: 261). Heunemann was clear that he did not recall telling Marco to ski down the mountain and close Gully with a rope, nor did he make a record of any such order in the logbook that morning (T: 260). Rather, Heunemann testified that it was "[m]ore than likely" that the patrollers at Burnt Ridge gave the order to close Gully because, when the ski patrollers open the mountain, they remove the ropes across the trails from the bottom of the mountain up in order to prevent people from starting at the top of the mountain and skiing into closed trails on the way down (T: 261-263). Heunemann also denied having any conversations with Anderson about the opening or closing of trails that day (T: 260). He conceded that, in the past, he had placed a "trail closed" sign in front of Gully when closing the trail (T: 268-269; Exhibit 40). Heunemann further noted that skiers like to pick up speed and often ski in a tuck position on Gully because the next connecting trail - Cedars Traverse - is flat and would require skiers to skate (T: 273).
Contrary to Heunemann's testimony, Marco testified that, upon receiving the instruction from Heunemann to close Gully, he skied down the corridor and noted that people were waiting for Twister's Little Sister to open (T: 326-329). Marco testified that he was familiar with the rope used to close Gully, and he tied the rope to a tree on the skier's left side of the trail and to a snowmaking hydrant on the skier's right side of the trail (T: 331, 335-337; Exhibit N). Although his initial testimony was that he placed the rope above the crest on the Gully trail, Marco's later testimony was that he did not know whether that tree was above or below the crest on Gully (T: 370-374; Exhibits N, 29-A). He estimated that the rope could be seen from approximately a few hundred yards up the trail, even if portions of the rope were obscured by the fence, but acknowledged that he himself had never skied on the left side of Gully in the manner that claimant did on the day of the accident (T: 391-392).
Lewis Jones testified that he was working as a ski patroller on the morning of March 7, 2013. Contrary to Heunemann's testimony, he testified that the opening of trails at Gore is generally done from the top of the mountain down (T: 233). Jones stated that, although he could not remember who told him to do so, he was instructed to open the trail at Twister's Little Sister sometime that morning (T: 235). In a written statement executed on the day of the accident, Jones wrote that he was dispatched to drop a rope on Twister's Little Sister and that there were three or four skiers waiting there when he arrived, but that he had "absolutely no contact with these people" (T: 241; Exhibit 10). Jones testified that, at the time he dropped the rope there, he had no knowledge as to whether Gully was opened or closed, and he conceded that he had never seen Twister's Little Sister open when Gully was closed (T: 243-244).
Mark Roberts is a ski patroller who was working on a snowmobile on March 7, 2013 in the base area. He testified that, although Burnt Ridge Quad was closed in the morning of March 7, 2013, he observed people down by the Quad. Roberts stated that he contacted the Bear Mountain dispatch and suggested that they make sure Twister's Little Sister and Gully were closed because, if Burnt Ridge Quad and Twister's Little Sister were open, a skier could expect to be able to ski all the way down from Twister's Little Sister to Burnt Ridge Quad (T: 290-293). According to Roberts, once the gondola opened, the patrollers would open the lower part of the mountain first. He stated that he had seen Twister's Little Sister open and Gully closed (T: 293), but had never seen Burnt Ridge and Twister open and Gully closed (T: 300). Roberts testified that there is no prohibition against tucking at Gore Mountain.
In addition to the foregoing in-court testimony, claimant offered the examination before trial of Daniel Gold, a supervisor of the ski patrollers at Gore Mountain (Exhibit 53). Consistent with Heunemann's testimony, but contrary to Jones' testimony, he stated that the trails at Gore are opened from the bottom of the mountain up and closed from the top down. He further explained that, when a quad is shut down and then re-opens, the dispatcher receives notice of such opening and notifies the ski patrollers by radio as to who will drop which ropes on the various trails serviced by that quad. According to Daniel Gold, if Burnt Ridge Quad was closed, then Gully and Twister's Little Sister should also be closed. He further stated that it would be "unusual" for ropes to be down on Twister, Twister's Little Sister, and Echo but up at Gully, and he had never previously seen such an occurrence (Exhibit 53, p. 55). On the day of claimant's accident, Daniel Gold believed the Gully rope was put up in order to deter skiers at the bottom of Burnt Ridge Quad from using the corridor, but stated that it is standard practice to affix a "closed sign" to the middle of the rope (Exhibit 53, p. 72). He confirmed that there was no sign attached to the Gully rope that day, and also corroborated the testimony of many witnesses that, to get from Echo to the Burnt Ridge Quad, a skier has to build up speed to get over Gully, if he or she does not want to skate through Cedars Traverse.
The examination before trial of Brett Gold, a ski patroller at Gore Mountain and the son of Daniel Gold, was also offered as part of claimant's case (Exhibit 52). Part of Brett Gold's duties on the day of claimant's accident included checking the trails and dropping the ropes to open them in the morning. On the morning of March 7, 2013, Brett Gold was working on Burnt Ridge Quad, which he stated was closed for mechanical reasons. He was in the ski patrol station when the call came that someone was down on Echo and needed assistance. He stated that, when he passed Twister's Little Sister while skiing down to Echo, he was surprised that the rope to Twister's Little Sister was dropped because he knew that Burnt Ridge was still closed. In his experience, when Burnt Ridge is down, then Twister's Little Sister and Gully are also closed. When he arrived at the entrance to Gully that morning, the rope was still up. In line with the testimony of Heunemann and Daniel Gold, Brett Gold stated that when he opens the corridor, he opens Gully first and then Twister's Little Sister. He further testified that it was not protocol to have a sign on the Gully rope in 2013.
Defendants called only one fact witness, John Carbone, the Assistant General Manager at Gore Mountain, who managed the investigation of claimant's accident. Carbone has held that position for three years and prior thereto was the supervisor of the ski patrollers for 22 years. He identified Defendants' Exhibit Q as the morning trail conditions report for March 7, 2013 which was posted that day on the central information board by 9:15 a.m. near the main ticket area. He testified that he believed Gully was listed as closed on the trail conditions report (T: 757-758; Exhibit Q). Carbone further testified that he could not recall observing anyone in a tuck position on Gully during the 30 years he has worked at Gore Mountain. Although he personally only sanctions tucking on a closed race trail, he stated there are no regulations, written policies, or signs that prohibit skiing in a tuck position at Gore.
At his examination before trial, Carbone apparently testified that there was a prohibition against tucking at Gore Mountain (T: 767).
According to Carbone, as of 9:15 a.m. on the morning of March 7, 2013, the trail conditions report indicated that Burnt Ridge Quad, Twister, and Twister's Little Sister were open, but that Echo, Gully, and Cedars Traverse were closed (Exhibit Q). Carbone acknowledged that continuing to list Twister's Little Sister as open on the trail conditions report after its closure was "a mistake," but contended that a closure rope is "the adequate warning" for closed trails (T: 808). Carbone estimated that the rope across Gully, which was over 100 feet long, could be seen from 200-300 yards away (T: 759-760). He acknowledged, however, that the racing fence on the left side of the trail partially obscured the rope by about 15-20 feet (T: 759, 795).
THE EXPERTS
Timothy Politis testified as claimant's expert. He is a certified instructor for the Professional Ski Instructors of America and a Level 3 certified ski patroller with the National Ski Patrol, and has been skiing for over 65 years. Politis testified that it is the accepted custom and practice to communicate by radio as to what trails are open or closed and that the head of the ski patrol on the mountain should have known what was transpiring on the mountain. It is his opinion that once the skiers saw that Twister's Little Sister was open, it was reasonable for them to expect that the entire corridor was open. He opined that it was a deviation from the standard of care to have opened Twister's Little Sister without first opening Gully. He did not believe that 30 miles per hour was an excessive rate of speed for an expert skier and that a tuck is not an inherently dangerous maneuver.
Level 3 is the highest designation. Politis is number 346 out of 770 certified ski patrollers in the country.
Politis at first gave testimony about where the rope across Gully was placed that day and his observation of the tree and the trail years later when he visited the trail. The Court does not credit this part of his testimony, as the conditions of the trail may have changed over the years, including the placement of the racing fence on the left side of Echo as it leads into Gully.
Politis further opined that the rope across Gully was dangerously placed if it could not be seen until a skier was upon it. He explained that it is standard practice in New York to have a white octagonal sign with a red border and red cross band over a black skier, which indicates "trail closed" and "no skiing," at a closed trail (Exhibit 42). He noted that New York mandates that a closed trail sign be placed at the top of the affected trails on a ski mountain (Exhibit 51) (see 12 NYCRR § 54.6). Politis stated that, in this case, the sign should have been erected uphill from the rope by 50 to 70 feet because the rope was downhill and past a curve. He also noted that a blaze orange lollipop, which is used to heighten visibility and project a warning, should have been used here. Politis opined that the lack of a trail closed sign and the orange lollipop was a substantial factor in causing the accident. He added that the closing of Gully while opening Twister's Little Sister was also a substantial factor in causing claimant's injury. He testified that placing the rope below the knoll on Gully was a deviation from the standard of care. According to Politis, the presence of flags on the rope is irrelevant in this case because a skier could not see the rope until he or she was upon it. For that reason, Politis would have placed the rope 75-80 feet uphill on the skier's left, making it visible enough for skiers to come to a stop no matter what their speed. He did not believe that claimant did anything wrong on the day of the accident and that the accident was caused solely by the misconduct of defendants.
Rudolph Mortimer also testified as an expert for claimant. Mortimer is a psychologist with an emphasis in the field of human factors engineering, which provides information to engineers about the abilities and limitations of people who use the design of those engineers. Human factors engineering involves an understanding of how humans perceive their environment in a given task. Mortimer opined that a skier traveling at 30 miles per hour who encounters an unexpected obstacle from 50 to 75 feet away, could not avoid the obstacle. He was aware of only one study regarding skiers and their ability to stop when they heard a signal. This study showed that if a skier was traveling at 25 miles per hour, they would travel 37-40 feet before they started to brake, and that the braking distance is approximately 26 feet at 25 miles per hour. Therefore, a skier would travel about 65 feet before coming to a full stop. In Mortimer's opinion, if a skier saw a rope from 50-75 feet away and was traveling at 30 miles per hour, the skier would not be able to avoid the rope. In his opinion, it was not surprising that one skier could avoid the rope and another hit it because people do not react the same way in such circumstances.
Mortimer holds a bachelor's degree from New York University in Psychology, a master's degree from New York University in Industrial Psychology, and a doctorate degree from Purdue University in Industrial and Experimental Psychology. He is the author of hundreds of publications.
Mark Petrozzi testified as defendants' expert witness. He noted that the morning trail conditions report indicated that Gully was closed. He opined that the opening of Twister's Little Sister that morning was reasonable because once the rope was dropped, the trail allowed access to Echo, which led to the base of the mountain if the skier veered to the right on Echo. Petrozzi defined a progressive trail opening as opening one trail after another in succession. He did not believe that the lack of the required trail closure sign at the beginning of Gully was a substantial factor in the happening of claimant's accident because there was a brightly colored rope across the entrance to the trail in excess of 100 feet long. He believed that the addition of one small sign would not have made a difference in this case and maintained that if claimant had availed himself of the trail conditions report he would have known that Gully was closed that morning. According to Petrozzi, claimant did not exercise reasonable care due to the speed of his skiing and being in a tuck position, which affects visibility and maneuverability. Further, Petrozzi opined that claimant should not have assumed that Gully was open just because Twister's Little Sister was open.
Exhibit M is Petrozzi's curriculum vitae. He has a bachelor's degree in recreation management. He has been a ski patroller since 1978 and has worked with approximately 220 ski areas over the last thirty-five years. He is a certified member of the National Ski Patrol and the Professional Ski Patrol Association. He is a member of the American Society for Test and Measurements where he serves on the standing committee for snow skiing. He is a member of the International Society for Skiing Safety.
Upon cross-examination, Petrozzi admitted that if the trail conditions report stated that the Burnt Ridge Quad was open, claimant would have a right to rely upon such statement. He was unaware that, prior to the issuance of the trail conditions report, Gully was open. He admitted that conditions change and what is written on the trail condition report could change from the time of its issuance. Petrozzi further stated that if a progressive trail opening is in progress, then a ski patroller should have checked to see whether Gully was opened. He noted, however, that a skier had two options while traveling down Echo from Twister's Little Sister: either stay on Echo to the base of the mountain or go to Gully. Petrozzi also admitted that there was a careless breakdown of communications in that Marco never knew that Jones was dropping the rope at Twister's Little Sister, and Jones did not know that Marco was putting the rope up at Gully at the same time. He further acknowledged that it was a reasonable expectation that if Twister's Little Sister was open, then Echo and Gully would be open because the skiers had previously skied that path numerous times. He testified that New York law requires that a trail closed sign be posted at the entrance to the trail but that, in his opinion, the sign should have been placed on the rope closing the trail, not forward of the rope.
In his testimony, Petrozzi explained that this procedure should be followed for guest service reasons and not safety reasons (T: 860).
LAW
As ski operators, defendants are subject to certain duties imposed by the Safety in Skiing Code (General Obligations Law § 18-101 et seq.). The statutory duties are not exclusive, however, and common-law principles must be applied unless a particular hazardous condition is specifically addressed by the statute (see Sytner v State of New York, 223 AD2d 140, 143 [3d Dept 1996]). Here, claimant has alleged that defendants breached duties imposed by both the Safety in Skiing Code and the common law.
As relevant here, the General Obligations Law requires ski operators "[t]o post in a location likely to be seen by all skiers signs of such size and color as will enable skiers to have knowledge of their responsibilities" (General Obligations Law § 18-103 [2]). Such responsibilities include, as relevant here, "[n]ot to ski in any area not designated for skiing," "[n]ot to ski beyond their limits or ability to overcome variations in slope, trail configuration and surface or subsurface conditions which may be caused or altered by weather, slope or trail maintenance work by the ski area operator, or skier use," and "[t]o remain in constant control of speed and course at all times while skiing so as to avoid contact with plainly visible or clearly marked obstacles" (General Obligations Law § 18-105 [1], [2], [4]). Further, ski area operators are required "[t]o conspicuously post and maintain such ski area signage, including appropriate signage at the top of affected ski slopes and trails, notice of maintenance activities and for passenger tramways as shall be specified by the commissioner of labor" (General Obligations Law § 18-103 [10]). This requirement is reiterated in 12 NYCRR 54.6, which provides that "[s]ki area operators shall conspicuously post and maintain signs, including legends and symbols, in the sizes, colors and locations required by provisions of Table I." Table I includes a closed trail sign described as a white octagon with red border and red cross band over black skier on white sign, the minimum size of which is 12 inches measured vertically (Exhibit 51).
Notably, GOL article 18 was not intended to abolish the application of the common-law duty to warn of dangerous conditions, and "a ski operator is not necessarily relieved of the duty to warn more extensively" (Sytner v State of New York, 223 AD2d at 144). To establish a prima facie case of negligence under the common law, a claimant "is required to demonstrate that the defendant owed a duty to him or her, that the defendant breached that duty and that such breach was a proximate cause of the injuries sustained" (Evarts v Pyro Eng'g, Inc., 117 AD3d 1148, 1150 [3d Dept 2014]; see Savage v Desantis, 56 AD3d 1013, 1014 [3d Dept 2008], lv denied 12 NY3d 709 [2009]). In this case, defendants possessed a nondelegable duty to maintain their "property 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" (Basso v Miller, 40 NY2d 233, 241 [1976]; see Davidson v Steel Equities, 138 AD3d 911, 912 [2d Dept 2016]). "Encompassed therein is the duty to warn those lawfully on the premises of potentially dangerous conditions that are not readily observable. Conversely, there generally is no duty to warn of conditions that can be easily recognized or discovered by the normal use of one's senses" (Comeau v Wray, 241 AD2d 602, 603 [3d Dept 1997] [citations omitted]; see Noble v Pound, 5 AD3d 936, 937-938 [3d Dept 2004]). Thus, "[i]n order to establish that the State is liable for a claimant's injuries, there must be proof that the State created a dangerous condition or had actual or constructive notice of a dangerous condition, that it failed to properly act to correct the problem or warn of the danger, and that such failure was a proximate cause of the claimant's injuries" (Dispenza v State of New York, 28 Misc 3d 1205 [A] [Ct Cl 2010]; accord Johnson v State of New York and New York State Olympic Regional Development Authority, UID No. 2014-039-420 [Ct Cl, Ferreira, J., August 6, 2014]; see Harjes v State of New York, 71 AD3d 1278, 1279 [3d Dept 2010]). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case and is generally a question of fact for the [factfinder]' " (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997], quoting Guerrieri v Summa, 193 AD2d 647, 647 [2d Dept 1993]).
In addition to the foregoing, it is well-settled that "[a] person who participates in downhill skiing assumes the usual risks inherent in that activity (i.e., those that are known, apparent or reasonably foreseeable)" (Clauss v Bush, 79 AD3d 1397, 1398 [3d Dept 2010]; see Finn v Barbone, 83 AD3d 1365, 1365 [3d Dept 2011]). However, "[a] participant in a sporting or recreational activity will not be 'deemed to have assumed concealed or unreasonably increased risks' " (Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607 [3d Dept 2003], quoting Morgan v State of New York, 90 NY2d 471, 485 [1997]).
ANALYSIS
The Court finds that defendants failed to exercise reasonable care in the opening and closing of trails on March 7, 2013, due to a breakdown in communication among their employees and volunteers, thereby creating conditions on the property that were not as safe as they appeared to be. Most notably, according to the above testimony, Anderson - who was primarily responsible for the opening and closing of trails on Gore Mountain - and Daniel Gold, a lead supervisor of ski patrollers, were completely unaware of the closing of Gully that day. Further, Heunemann, whose testimony was equivocal regarding essential elements of this claim, failed to inform his superiors of the closing of Gully, and Anderson failed to inform Heunemann of the order to open Twister's Little Sister - despite the undisupted availability of radios to communicate such information. The Court credits the testimony of claimant's expert, Politis, who testified that the head of Ski Patrol should know what trails are being opened and closed on a given day and that it is custom and practice to use radios to do so (T: 634). Politis also maintained, and the Court credits such testimony, that the lack of communication was a deviation from the standard of care in the ski industry (T: 635).
Additionally, Jones who opened Twister's Little Sister pursuant to Anderson's request, failed to check Gully when he did so. Heunemann and Daniel Gold testified that the mountain is opened from the bottom up, while Jones testified that it is opened from the top down (T: 263; 233; Exhibit 53, p. 62). Daniel Gold also testified that defendants had no specific procedure for the opening and closing of trails (Exhibit 53, p. 20). It is clear that the safer course of action would have been to open Gully before Twister's Little Sister. The Court credits Politis' testimony that, if defendants had a clear policy to open the mountain from the bottom up, then perhaps Jones would have checked if Gully was open before he dropped the rope at Twister's Little Sister. The failure to verify if Gully was open at that time constituted a safety failure that rendered defendants' property less safe than it appeared to be that day.
Further, the Court finds that defendants placed the rope across Gully in a precarious location below the decline on Echo leading into Gully, thereby creating a dangerous condition on the frequently used corridor to the Burnt Ridge Quad. While defendants maintain that the placement of the rope was above the knoll and that the use of a rope with flags was a sufficient warning measure, the Court rejects these arguments. Marco's testimony was equivocal and unreliable as to precisely where he placed the rope that day, and the Court credits the testimonies of O'Boyle, Stackhouse, and Maguire - each of whom presented as sincere and forthright witnesses - that the rope was below the decline on Echo leading into Gully. Of further significance, Anderson acknowledged that skiers would have the expectation that if Twister's Little Sister was open, Gully would be open also, a position that is supported by the testimonies of Maguire, Stackhouse, Jones, and Marco. Upon review of all relevant exhibits and testimony, the Court concludes that the rope was placed below the decline on Echo leading into Gully (Exhibits N, 29-A). The Court also concludes that the rope was not visible to a skier skiing at 30 miles per hour in a tuck position and hugging the left side of the trail next to the fence (Exhibits 39, 41).
The Court additionally finds that claimant could not see the rope in time to stop, as it was located upon a sharp turn in the trail and after the decline at the end of Echo leading into Gully (see Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d at 607). On this issue, the Court credits Mortimer's opinion that claimant would not have been able to stop, even if he was 75-80 feet away from the rope, due to his speed and the time and distance it would take to stop at such speed, as well as the time for recognition of the hazard and the stress associated with such recognition. Mortimer's testimony was also bolstered by that given by the individuals skiing with claimant as to when they first saw the rope that day. Maguire, skiing on the right side of Echo, and O'Boyle, skiing behind claimant on the left, did not see the rope until the claimant hit it. Rollings, who was skiing center left on the trail, saw the rope at 40 to 50 feet away from it. Stackhouse, who was skiing center right, did not see the rope until he was less than 100 feet away from it. As defendants' estimates of sight distance - voiced by Marco, Anderson, and Carbone - varied considerably during the trial, the Court does not afford said estimates much weight. The Court further finds that the fact that Stackhouse and Rollings skied under the rope does not bolster defendants' argument, as they were skiing from a different position on the trail and their sight distance would be different from claimant's, given that he was hugging the fence on the left side of the trail (see id. at 608).
While the Court is mindful that, on the day of claimant's accident, Gully was listed as closed on the trail conditions report (Exhibit Q), several witnesses testified that trail conditions are expected to change throughout the day, unlike printed brochures and maps. Additionally, Gully was included on the list of open trails on the internet that day (Exhibit 4). The Court credits Maguire's testimony that a ski patroller at Twister's Little Sister told them that the Burnt Ridge Quad was open, as well as O'Boyle's testimony that a ski patroller told them at Twister's Little Sister to "have [at] it boys," and finds that such statements implied that the entire corridor was open. The Court also credits claimant's testimony that he saw a sign at the gondola that informed him that the Burnt Ridge Quad corridor was open.
Despite defendants' contentions to the contrary and the opinions expressed by Anderson and Carbone at trial, the Court finds that there were no prohibitions against skiing on the left side of the trail, skiing in a tuck position, or maintaining a speed of no more than 20 miles per hour on the first run of a day. Rather, the Court credits the testimony of Politis that these practices are customary for expert skiers and finds that claimant did not violate his duties as a skier under General Obligations Law § 18-105 (4). For defendants' part, however, the absence of closure signs on the Gully trail constitute violations of General Obligations Law §§ 18-103 (2) and (10), as well as 12 NYCRR § 54.6, which require that a trail closure sign be posted at the top of an affected slope. Defendants' argument that the presence of a small sign would not have stopped claimant from colliding with the rope across Gully is unavailing, as a properly located sign would have been more visible than a rope placed in an obscure position. In any event, the placement of a required sign does not necessarily obviate a finding of liability where a hazard cannot be avoided (see Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d at 608).
Finally, to the extent that defendants argue that claimant assumed the risk of injury by participating in the sport of skiing, the Court finds that the doctrine of assumption of the risk does not operate to absolve the State of liability in this case. The testimony of Anderson and Roberts was that skiers could have the expectation that Gully would be open if Twister's Little Sister was open. Further, Jones, Daniel Gold, Brett Gold, and Roberts all testified that a skier would likely expect that Gully was open if Twister's Little Sister was open, and that they had never seen Gully closed when Twister, Twister's Little Sister, and Echo were open. Such testimony was also corroborated by the skiers themselves. Moreover, the Court concludes that the placement of a rope closing a trail shortly after a decline, which was obscured from the vision of a skier on the left side of a trail, is not an appreciated risk inherent in the sport of skiing (compare Simoneau v State of New York, 248 AD2d 865, 866 [3d Dept 1998]). Rather, the precarious placement of the rope, the lack of a warning sign, and the lack of communication among staff, created a concealed risk not assumed by claimant in this case.
Defendants raised the defense of assumption of the risk in their answer but did not specifically raise the defense at trial. In their post-trial memorandum, defendants did not cite any law relevant to the doctrine, nor do they specifically argue that the doctrine applies to the facts of this case. --------
Upon review of all the evidence, including the observation of all witnesses and an assessment of their demeanor, the Court hereby determines that defendants are fully liable under common and statutory law for the failure to warn claimant of a hazard, the failure to use radios to communicate with one another so the mountain was as safe as it appeared to be, and the failure to properly place the rope in a location that could be seen by skiers within a reasonable time to stop. The failure to perform these duties in a reasonable manner proximately caused claimant's accident. Claimant did not assume the risk of the unreasonable danger created by defendants. Damages will be determined at a subsequent trial. All motions not heretofore decided are denied.
Let interlocutory judgment be entered accordingly.
August 24, 2016
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims