From Casetext: Smarter Legal Research

Dailey v. Labrador Dev. Corp.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
Feb 11, 2016
136 A.D.3d 1380 (N.Y. App. Div. 2016)

Opinion

56 CA 15-01079.

02-11-2016

Adam DAILEY, Plaintiff–Respondent, v. LABRADOR DEVELOPMENT CORP., Defendant–Appellant.

  Cheroutes Zweig, P.C., Hamburg (Steven M. Zweig of Counsel), for Defendant–Appellant. Stanley Law Offices, LLP, Syracuse (Brianne Carbonaro of Counsel), for Plaintiff–Respondent.


Cheroutes Zweig, P.C., Hamburg (Steven M. Zweig of Counsel), for Defendant–Appellant.

Stanley Law Offices, LLP, Syracuse (Brianne Carbonaro of Counsel), for Plaintiff–Respondent.

Opinion

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries he sustained when he was downhill skiing on defendant's premises. The accident occurred when plaintiff lost control while skiing down a trail, fell to the ground, slid down the mountain for approximately 15 to 30 feet, and collided headfirst into a metal pole of a snowmaking machine. Although there was padding on the upper portion of the pole, plaintiff collided with the lower, unpadded portion of the pole. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff assumed the risks associated with the sport of skiing. We agree with plaintiff that Supreme Court properly denied the motion. We note at the outset that General Obligations Law § 18–107 provides that, “[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law” and, contrary to defendant's contention, the precise circumstances of plaintiff's accident are not covered by article 18 of the General Obligations Law. Thus, the common law applies where, as here, plaintiff is alleging the negligent placement and inadequate padding of defendant's snowmaking machines, a condition not “specifically addressed by the statute” (Sytner v. State of New York, 223 A.D.2d 140, 143, 645 N.Y.S.2d 654).

It is well settled under the common law that “[v]oluntary participants in the sport of downhill skiing assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and man-made objects that are incidental to the provision or maintenance of a ski facility” (Fabris v. Town of Thompson, 192 A.D.2d 1045, 1046, 597 N.Y.S.2d 477). Here, although defendant met its initial burden by establishing that the accident was caused by the inherent risks in the sport of downhill skiing, plaintiff raised a triable issue of fact by submitting the affidavit of his expert (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Plaintiff's expert asserted therein that the snowmaking machine was on the ski trail and was insufficiently padded, thus raising an issue of fact whether defendant “failed to maintain its property in a reasonably safe condition” (Basilone v. Burch Hill Operations, 199 A.D.2d 779, 780, 605 N.Y.S.2d 423; see Fabris, 192 A.D.2d at 1046–1047, 597 N.Y.S.2d 477; cf. Bennett v. Kissing Bridge Corp., 17 A.D.3d 990, 990–991, 794 N.Y.S.2d 538, affd. 5 N.Y.3d 812, 803 N.Y.S.2d 22, 836 N.E.2d 1144).

It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.


Summaries of

Dailey v. Labrador Dev. Corp.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
Feb 11, 2016
136 A.D.3d 1380 (N.Y. App. Div. 2016)
Case details for

Dailey v. Labrador Dev. Corp.

Case Details

Full title:ADAM DAILEY, PLAINTIFF-RESPONDENT, v. LABRADOR DEVELOPMENT CORP.…

Court:SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

Date published: Feb 11, 2016

Citations

136 A.D.3d 1380 (N.Y. App. Div. 2016)
2016 N.Y. Slip Op. 1072
24 N.Y.S.3d 830

Citing Cases

Stenoski v. N.Y. State Olympic Reg'l Dev. Auth.

As a ski area operator, Defendant is subject to certain duties imposed by the Safety in Skiing Code (General…

Perrone v. Catamount Ski Resort, LLC

As a result, courts have denied summary judgment on the issue of whether a defendant breached its duty to…