Opinion
7285 Index 157038/15
10-11-2018
Steven MADSEN, et al., Plaintiffs–Appellants, v. CATAMOUNT SKI RESORT, et al., Defendants–Respondents.
Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for appellants. Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for respondents.
Sullivan Papain Block McGrath & Cannavo P.C., New York (Brian J. Shoot of counsel), for appellants.
Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for respondents.
Sweeny, J.P., Tom, Gesmer, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered September 12, 2017, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiffs seek to recover for personal injuries sustained by their infant daughter in a skiing accident at defendants' ski resort. Plaintiffs claim that defendants were negligent in failing to pad the metal snow machine pole with which the infant collided. The motion court dismissed the complaint on the ground that plaintiff assumed the risks associated with the sport of skiing.
Such risks include the risk of injury resulting from "other persons using the facilities" and from "man-made objects that are incidental to the provision or maintenance of a ski facility," such as snowmaking equipment ( General Obligations Law § 18–101 ; see also id. § 18–106). However, an individual "will not be deemed to have assumed ... unreasonably increased risks" ( Morgan v. State of New York , 90 N.Y.2d 471, 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ).
If, as plaintiffs maintain, the unpadded pole was located on the ski trail or in an area where skiing was permitted, then defendants could be found to have failed to maintain their property in a reasonably safe condition. 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" ( Dailey v. Labrador Dev. Corp. , 136 A.D.3d 1380, 1381, 24 N.Y.S.3d 830 [4th Dept. 2016] ). The common law applies where, as here, plaintiffs are alleging inadequate padding of defendant's snowmaking pole, a condition not specifically addressed by the statute ( id. ). On the record before us, we cannot conclude, as a matter of law, that the pole was off-trail and that the pole did not need to be padded. Thus, defendants are not entitled to summary judgment.
Nor are defendants entitled to summary judgment on the ground that the failure to pad the pole did not cause the subject collision, because that failure may have caused or enhanced the infant's injuries (see Stuart–Bullock v. State of New York , 33 N.Y.2d 418, 421, 353 N.Y.S.2d 953, 309 N.E.2d 419 [1974] ; see also Joyce v. Rumsey Realty Corp. , 17 N.Y.2d 118, 269 N.Y.S.2d 105, 216 N.E.2d 317 [1966] ).