Opinion
885 CA 18–00039
09-28-2018
John J. SOPKOVICH and Carol A. Sopkovich, Plaintiffs–Appellants, v. Donald J. SMITH, Defendant–Respondent, et al., Defendant.
LEWIS & LEWIS, P.C., JAMESTOWN (JOHN I. LAMANCUSO OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JEFFREY F. BAASE OF COUNSEL), FOR DEFENDANT–RESPONDENT.
LEWIS & LEWIS, P.C., JAMESTOWN (JOHN I. LAMANCUSO OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JEFFREY F. BAASE OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint against defendant Donald J. Smith is reinstated.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by John J. Sopkovich (plaintiff) when he and Donald J. Smith (defendant), a snowboarder, collided on a ski trail. Defendant moved for summary judgment dismissing the complaint against him, contending that plaintiff "assumed the risk of a collision with another downhill skier or snowboarder" and that defendant did not engage in any "reckless, intentional, or other risk-enhancing conduct not inherent in the activity." We conclude that Supreme Court erred in granting defendant's motion.
In support of his motion, defendant submitted, inter alia, his own deposition testimony and that of plaintiff. Plaintiff, an "advanced intermediate skier" who had been skiing for over 40 years, testified that he was "slow[ly]" skiing down a beginner trail when defendant merged onto that trail from an intermediate trail and "impacted [plaintiff] from the left." By contrast, defendant, an "advanced" snowboarder who was familiar with the trails, testified that he had already safely merged onto the beginner trail at an "average" or "normal" speed, was further down the beginner trail than plaintiff and was "very close to a complete stop" at the time of the collision, having observed plaintiff "going fast" "down the hill in a straight line." It looked to defendant as if plaintiff was "out of control" and did not "ha[ve] the ability to make the turn" to avoid defendant. It is undisputed that both men suffered significant injuries, with plaintiff sustaining a broken leg, lacerated kidney and significant contusions to his left side and defendant sustaining broken ribs on the left side of his body and lacerations to his spleen, kidney and diaphragm. In opposition to the motion, plaintiffs submitted, inter alia, an affidavit from an emergency room physician who was also an 11–year veteran of the National Ski Patrol. Based on his review of the depositions and other records related to the case, the expert opined that, given the nature and extent of plaintiff's injuries, "there [was] no question [that] the force with which [defendant] impacted [plaintiff's] left side and back was immense" and that plaintiff's injuries were "not consistent with [defendant's] deposition testimony" that he had come to or nearly come to a complete stop. The expert further opined that, "[g]iven that [plaintiff] was skiing slowly at the time of the collision, the severe injuries sustained by [both] men, and their unanimous testimony that the collision was severe, it [was] clear [that defendant] was snowboarding at an extremely high rate of speed at the time of the collision." The expert thus concluded that defendant had "unreasonably increased the risk of harm" to plaintiff by cutting across the beginner trail "at an extremely high rate of speed ... knowing that there would be skiers and snowboarders traveling down [the beginner trail]" and that defendant's conduct constituted "an egregious breach of good and accepted snowboarding practices."
It is well settled that " ‘[d]ownhill skiing [and snowboarding] ... contain[ ] inherent risks including, but not limited to, the risks of personal injury ... which may be caused by ... other persons using the facilities’ ( General Obligations Law § 18–101 ), and thus there generally is an inherent risk in downhill skiing and snowboarding that the participants in those sports might collide" ( Martin v. Fiutko, 27 A.D.3d 1130, 1131, 811 N.Y.S.2d 250 [4th Dept. 2006] ; see Farone v. Hunter Mtn. Ski Bowl, Inc., 51 A.D.3d 601, 602, 859 N.Y.S.2d 64 [1st Dept. 2008], lv denied 11 N.Y.3d 715, 873 N.Y.S.2d 532, 901 N.E.2d 1286 [2009] ; Zielinski v. Farace, 291 A.D.2d 910, 911, 737 N.Y.S.2d 199 [4th Dept. 2002], lv denied 98 N.Y.2d 612, 749 N.Y.S.2d 4, 778 N.E.2d 555 [2002] ). It is also well settled, however, that participants in sporting endeavors will not be deemed to have assumed the risks of reckless, intentional or other risk-enhancing conduct not inherent in the sport (see Morgan v. State of New York, 90 N.Y.2d 471, 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ).
Moreover, inasmuch as "the assumption of risk to be implied from participation in a sport with awareness of the risk is generally a question of fact for a jury ..., dismissal of a complaint as a matter of law is warranted [only] when on the evidentiary materials before the court no fact issue remains for decision by the trier of fact" ( Maddox v. City of New York, 66 N.Y.2d 270, 279, 496 N.Y.S.2d 726, 487 N.E.2d 553 [1985] ; see McKenney v. Dominick, 190 A.D.2d 1021, 1021, 593 N.Y.S.2d 644 [4th Dept. 1993] ).
Here, even assuming, arguendo, that defendant established as a matter of law that he "did not engage in any reckless, intentional or other risk-enhancing conduct not inherent in the activity of downhill skiing [or snowboarding] that caused or contributed to the accident" ( Moore v. Hoffman, 114 A.D.3d 1265, 1266, 980 N.Y.S.2d 684 [4th Dept. 2014] [internal quotation marks omitted] ), we conclude that plaintiffs raised triable issues of fact whether defendant engaged in such conduct.
As in Moore, the record establishes that the collision was exceedingly violent and, inasmuch as we must accept as true plaintiff's testimony that he was the one who was skiing slowly (see generally Haymon v. Pettit, 9 N.Y.3d 324, 327 n., 849 N.Y.S.2d 872, 880 N.E.2d 416 [2007], rearg. denied 10 N.Y.3d 745, 853 N.Y.S.2d 532, 883 N.E.2d 357 [2008] ; Bunk v. Blue Cross & Blue Shield of Utica–Watertown, 244 A.D.2d 862, 862, 668 N.Y.S.2d 121 [4th Dept. 1997] ), there is "at least a question of fact ... whether ... defendant's speed in the vicinity and overall conduct was reckless" ( DeMasi v. Rogers, 34 A.D.3d 720, 721–722, 826 N.Y.S.2d 106 [2d Dept. 2006] ; see Moore, 114 A.D.3d at 1266, 980 N.Y.S.2d 684 ). Contrary to defendant's contention, the affidavit of plaintiffs' expert was neither conclusory nor speculative (cf. Gern v. Basta, 26 A.D.3d 807, 808, 809 N.Y.S.2d 724 [4th Dept. 2006], lv denied 6 N.Y.3d 715, 823 N.Y.S.2d 355, 856 N.E.2d 919 [2006] ).
Thus, we conclude that the court erred in granting defendant's motion and we therefore reverse the order, deny the motion and reinstate the complaint against defendant. Based on our determination, we do not address plaintiffs' remaining contentions.