Martin v Fiutko

[*1] Martin v Fiutko 2005 NY Slip Op 50425(U) Decided on March 31, 2005 Supreme Court, Monroe County Lunn, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 31, 2005
Supreme Court, Monroe County

BRANDON MARTIN, Plaintiff,

against

JESSIE E. FIUTKO, Defendant.



2002/10581



DeVALK, HENDRICKS & POWER, PC

Richard L. DeValk, Esq. of Counsel

Attorneys for Plaintiff

25 Pearl Street

Lyons, New York 14489

JAECKLE, FLEISCHMANN & MUGEL, LLP

David G. Brock, Esq.

Attorneys for Defendant

12 Fountain Plaza

Buffalo, New York 14202

Robert J. Lunn, J.

This case arises out of a skiing accident at the Swain Ski and Snowboard Center in Swain, New York. On January 13, 2001, plaintiff was snowboarding with a group of eight to ten acquaintances. On that day, defendant was skiing at Swain with his father and brother. At approximately 7:00 to 7:30 pm, defendant started to ski down the "Last Will" trail at Swain for the first time. This trail is rated for expert skiers. Defendant's brother first started down the trail. Defendant followed approximately thirty seconds later. The defendant first skied to the left of the trail, then turned to the right. When he started to again turn to the left, defendant first noticed a group of snowboarders approximately thirty five to forty feet away who were standing on the trail. Defendant estimated that at that he was then skiing at approximately forty miles per hour. He continued generally going to the left when he collided with plaintiff who was standing with his back to the upward slope of the hill in the middle of the group of snowboarders. Apparently, plaintiff and the other snowboarders had entered the "Last Will" trail via a cross over and were waiting for a jump to clear before proceeding down the trail. In the meantime, he was adjusting [*2]his bindings on his snow board when defendant hit him causing serious injuries.

Plaintiff subsequently commenced this action alleging that it was defendant's negligence which caused the collision. Defendant now moves for summary judgment dismissing the complaint arguing that the doctrine of primary assumption of risk bars plaintiff's claim. Plaintiff cross-moves for partial summary judgment regarding liability.

As a general rule, ". . . by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State, 90 NY2d 471, 484 [1997]). With respect to the sport of downhill skiing, the New York State legislature has expressly provided ". . . that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by. . . other persons using the facilities. . ." (General Obligations Law §18-101). However, participants in recreational activities or sports, including downhill skiing, "will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks" (Morgan v State, 90 NY2d at 485). Absent proof of "reckless, intentional or other risk-enhancing conduct not inherent in the activity of downhill skiing that caused or contributed to the accident", plaintiff is deemed to have consented to the risk of injury (Zielinski v Farace, 291 AD2d 910, 911 [4th Dept 2002] quoting Kaufman v Hunter Mountain Ski Bowl, Inc., 240 AD2d 371, 372 [2nd Dept 1997]; see also Kriel v County of Niagara, 8 AD3d 1001, 1002 [4th Dept 2004]; Lamprecht v Rhinehardt, 8 AD3d 448, 449 [2nd Dept 2004]). Defendant has met his initial burden by submitting proof that he did not engage in this type of conduct prior to colliding with plaintiff.

Plaintiff urges the court that he may also prevail if it is established that defendant's conduct in causing the collision was merely negligent. This is the lesser standard adopted by the Third Department (see Martin v Luther, 227 AD2d 859, 860 [3rd Dept 1996]quoting Jackson v Livingston Country Club, 55 AD2d 1045 [4th Dept 1977]["[a] participant in a sporting event generally assumes the risks inherent in the sport ... he does not assume the risk of another participant's negligent play which enhances the risk"]; Duncan v Kelly, 249 AD2d 802 [3rd Dept 1998]["[I]t is our view that a recovery by plaintiff may be predicated upon a showing of ordinary negligence on defendant's part. Although an individual who participates in downhill skiing assumes the usual risks inherent in that activity, including the risk of personal injury caused by other persons using the facilities (General Obligations Law § 18-101 [1]), both this Court and the Court of Appeals have included another participant's negligence (together with the more obvious reckless or intentional conduct) within the range of risks that will not be assumed by a voluntary participant in a sporting activity"]; Pelkey v Viger, 289 AD2d 899 [3rd Dept 2001]). However, if ordinary negligence is included in the standard to overcome plaintiff's primary assumption of risk, the court questions when, if ever, would primary assumption of risk be a complete bar to plaintiff's claim? Presumably, plaintiff can establish defendant's negligence, otherwise a lawsuit would never have been brought against defendant in the first place. This does not seem to be the rule in the Fourth Department. This court declines to now adopt it.

Plaintiff alternatively argues that at a minimum a triable issue of fact has been raised that defendant's conduct was reckless or at least sufficiently risk-enhancing and not inherent to the sport of downhill skiing to defeat summary judgment. Plaintiff cites the following facts as [*3]evidence of defendant's reckless conduct or conduct which unreasonably increased the sport's inherent risks. Defendant was an "intermediate" skier with only two years of experience. Defendant had not taken any ski lessons. Defendant was attempting to ski down an expert slope for the first time, at night, without his glasses. Defendant had made only two turns and was just starting his third turn over the first 600 feet of the "Last Will" trail causing him to be skiing at approximately 40 miles per hour. Plaintiff offers no proof why this type of conduct is not inherent in the sport of downhill skiing.

Plaintiff has submitted the affidavits of three alleged expert skiers who all opine that the defendant was skiing out of control and was therefore reckless. However, all three affidavits lack probative value. Neither Dr. Jordon, Mr. Mitchell or Dr. Ruhl witnessed the accident. Except for Dr. Jordon, they do not profess to have any familiarity with Swain Ski Center and the Last Will trail in particular. While Dr. Jordon characterizes the defendant as "skiing out of control", he does not relate the factual basis for this opinion in his affidavit sworn to on September 29, 2004. The court has not considered Dr. Jordon's December 1, 2004 affidavit as it is a sur-reply affidavit which is not permitted by this court's rules or the CPLR (see CPLR 2214; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416, 417 [2nd Dept 2003]). Defendant also did not consent to the submission of this sur-reply affidavit. The affidavits of Mr. Mitchell and Dr. Ruhl are similarly deficient in that they are based upon speculation and conjecture. An expert's opinion "bereft of any ... foundational facts" and wholly "conclusory and speculative", does not constitute competent evidence, sufficient to warrant denial of a summary judgment motion. (Mendes v. Whitney-Floral Realty Corp., 216 AD2d 540, 542 [2nd Dept 1995]). As stated by the Court of Appeals, "[A]n expert's opinion not based on facts is worthless" (Caton v. Doug Urban Const. Co., 65 NY2d 909, 911 [1985].

Plaintiff also offers two photographs of the "Last Will" trail taken in September, 2004 in support of his contention that defendant should have and could have seen the group of snowboarders from the top of the trail and, in any event, much sooner than from only 35 to 40 feet away as testified to by defendant. Dr. Ruhl, one of plaintiff's experts, also relied upon these photographs in concluding that the crossover trail upon which plaintiff was standing prior to being hit was "obvious". In order for the photographs to have any probative value, they must depict substantially the same conditions as existed on the day of the accident (Labella v Willis Seafood, 296 AD2d 382 [2nd Dept 2002]). These photographs were taken during the day in bright sunshine in late summer or early fall when there was no snow on the ground. In contrast, the accident occurred in January, at approximately 7:00 pm at night with snow on the ground.

Failing to accurately depict the ski trail at the time of the accident, the photographs lack any probative value and are inadmissible.

In summary, plaintiff's submissions fail to raise a triable issue of fact regarding defendant's allegedly reckless conduct. Defendant's motion for summary judgment is granted. Plaintiff's cross-motion for partial summary judgment is denied. The complaint is dismissed. Defendant's attorney shall submit an order, on notice to [*4]

plaintiff's attorney, in conformance with this decision. The filing of the papers upon which this decision is based is dispensed with pursuant to CPLR 2220(a).

DATED: March 31, 2005

Rochester, New York

____________________________________

HON. ROBERT J. LUNN

SUPREME COURT JUSTICE