Kegler v State of New York

[*1] Kegler v State of New York 2012 NY Slip Op 52444(U) Decided on October 29, 2012 Ct Cl Collins, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 29, 2012
Ct Cl

Alan J. Kegler and CAROL WANNEMACHER, Claimants,

against

The State of New York, OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, Defendant.



117618



For Claimants:

Webster Szanyi, LLP

By: Charles E. Graney, Esquire

For Defendant:

Honorable Eric T. Schneiderman, Attorney General

By: Glenn C. King, Esquire

Assistant Attorney General

Francis T. Collins, J.

Claimant [FN1] was allegedly injured while unloading from the Summit Quad chairlift at Whiteface Mountain. A bifurcated trial on the issue of liability was held on April 25 and 27, 2012. The following is the decision of the Court on the issue of liability.

The claimant first called to the stand Morgan Langey, a lift attendant stationed at the top of the Summit Quad chairlift on the date of claimant's accident. Mr. Langey identified various photographs including Exhibits 5 and 7 depicting the loading area at the bottom of the Summit Quad lift, Exhibits 1 and 2 depicting the approach to the unloading area at the top of the Summit Quad lift and Exhibit 3 which depicts the area at the top of the Summit Quad lift where passengers exit the [*2]lift chair including a bull wheel, a snow covered unloading ramp and a lift shack "where the attendant sits during the shift" (Tr. 1, 11)[FN2]. Mr. Langey explained that, as shown in Exhibit 3, once passengers have disembarked, the lift chair passes around the bull wheel and begins its return journey back down the mountain. As it moves around the bull wheel, the lift chair passes over a horizontal safety gate affixed to a vertical support. It then travels along a ramp which rises slightly and then flattens at its end where the chair passes over a safety basket and continues downhill. The witness explained that the safety gate is designed so that "[w]hen the chair goes around and someone is still in the chair, it's tripped. And as soon as it gets knocked out of position, the lift shuts down" (Tr. 1, 14). The safety gate extends the full width of the lift chair, which passes directly over the gate as it goes around the bull wheel. According to Mr. Langey, the safety gate does not extend beyond the outside edge of the lift chair.

A lift attendant shack is located to the left of the unloading ramp as one exits the lift chair. Mr. Langey identified Exhibit 8 as a photograph depicting the inside of the attendant shack including a chair, radio, microwave oven, phone and the lift control box. As shown in Exhibit 9, the control box contains a button marked "slow" to slow the lift, another marked "stop" to stop the lift and an emergency brake. Windows permit an attendant within the lift shack to observe skiers as they approach the unloading dock as well as the unloading area and bull wheel. Located behind the attendant's shack is a small building utilized by the Whiteface Mountain Ski Patrol.

Mr. Langey testified that he received training as a lift attendant when he first became employed by Whiteface Mountain ten or eleven years ago. He could not recall whether he received a policy manual as part of his training but did recall viewing a video. The witness testified lift attendants are responsible for watching passengers as they unload and that the best vantage point for observing that activity is either from inside the lift shack or outside the shack on the deck which surrounds it.

Mr. Langey testified that he had previous experience loading passengers at the bottom of the Summit Quad chairlift. He stated that individuals stationed at the bottom of the lift are responsible for ensuring that skiers enter the loading ramp properly and that they are safely seated in the chair as they begin their journey up the mountain. When asked whether lift attendants loading passengers at the bottom of the Summit Quad lift are responsible for alerting passengers who may be wearing loose garments he replied "You do your best" (Tr. 1, 36). The witness, who has worked both as a lift operator and a lift attendant on the Summit Quad lift, testified that on the day of claimant's incident he was assigned to the lift as a lift attendant. In addition to observing skiers as they unload, a lift attendant is also responsible for maintaining a covering of snow on the unloading ramp. Obviously, the attendant is required to be outside the lift shack while working on the unloading ramp. When asked his understanding of how far a lift attendant was permitted to be from the lift control box he replied "You're supposed to be within a reasonable distance . . . [s]o that you can adequately stop the lift if necessary" (Tr. 1, 40-41). Mr. Langey testified that he has worked at the top of the Summit Quad chairlift for approximately ten years and that during that time he had stopped the lift, "[m]any, many times" (Tr. 1, 42). He estimated that, in his experience, the lift continues approximately seven feet prior to coming to a stop once the stop button on the control panel is pushed. [*3]

The witness testified that he recalled the incident involving the claimant and that he was standing on the deck which surrounds the lift shack talking to a ski patroller at the time it occurred. He recalled observing Mr. Kegler "on the outside of the chair going around. And as soon as he had bypassed the safety gate, I was heading inside to hit the button" (Tr. 1, 44-45). He testified that when he first observed the claimant "he was attached to the chair but he was not really in it" (Tr. 1, 45). The witness observed the claimant being pulled around the bull wheel while attached to the outside portion of the lift chair, missing the safety gate by a wide margin. As Mr. Langey started toward the entrance of the lift shack to shut down the lift he glimpsed the claimant being dragged up the ramp on the downhill or return side of the bull wheel. He stated his belief that the effects of centrifugal force caused the claimant to strike the railing which runs along the outside portion of the downhill side of the ramp. The witness testified that he pressed a button inside the lift shack which brought the lift to a stop, but not before the claimant was dragged around the bull wheel, up the inclined area and along the flat portion of the ramp. The chair came to a stop above what is known as the safety basket or last chance mat which is composed of netting and extends out from the end of the downhill side ramp. Once the lift was stopped, Mr. Langey proceeded outside the lift shack to assist in detaching the claimant from the lift chair. According to the witness, "We brushed him off and we sent him on his way" (Tr. 1, 53). When asked what lies beyond the last chance mat he responded "Nothing good. It's just a thirty foot drop-off to rocks" (Tr. 1, 53). He testified that his primary job at Whiteface Mountain is as a snow manager and that he transfers from making snow to acting as a lift attendant once snowmaking activities at the mountain cease.

On cross-examination the witness testified that on arriving at his work site at the top of the Summit Quad chairlift his first activity as an attendant is to check all safety switches to insure they are in working order. He then insures that the ramp is covered with an adequate quantity of snow and installs the safety gate. According to the witness he was standing on the deck which surrounds the lift shack speaking to a ski patroller at the time he first observed the claimant experiencing difficulty exiting the lift chair (see Exhibit 23A). In addition to maintaining the snow cover on the unloading ramp, a lift attendant may also be outside the lift shack to answer a customer's questions or to assist the ski patrol. Although he had testified that the lift stops within approximately seven feet once the stop button is pushed, he agreed that the distance stated was an approximation and that he had not personally measured the stopping distance. Mr. Langey testified that he observed Mr. Kegler located above the safety basket at the end of the downhill ramp still attached to the lift chair by a jacket which was tied around his waist.

On redirect examination the witness acknowledged that he was not certain whether he was standing on the deck surrounding the lift chair or walking up the stairs to the deck at the time of claimant's accident. Although it was his belief that he was speaking to a ski patroller, he could not recall the subject of their conversation.

The claimant called Bruce McCulley, General Manager at Whiteface Mountain. Mr McCulley testified that he was familiar with the "Tramway Code" or "Code Rule 32" which governs the operation of chairlifts in the State of New York (12 NYCRR Part 32). He is much less familiar with the ANSI B77 standards applicable to chairlift operations, which he described as "a national standard for tramways that are used in some states" (Tr. 1, 70). He testified that Whiteface Mountain did not follow the ANSI B77 standard in 2008. Rather, Whiteface Mountain followed Code Rule 32 as the authoritative source for rules governing the operation of ski lifts. [*4]

Mr. McCulley testified that in 2008 Whiteface operated the Summit Quad chairlift at approximately 450 feet per minute although the lift has a maximum design speed of 500 feet per minute. He next identified Exhibit 24 as a daily operator's report for the Summit Quad chairlift on April 19, 2008. Despite a space available on the form for entering mechanical/electrical malfunctions and/or injuries, the report contains no mention of the event involving the claimant. He testified that an incident in which a patron misses the stop gate, is pulled around the bull wheel and comes to rest over the last chance basket is an unusual occurrence and potentially very serious, although not necessarily a matter which needs to be reported. The witness stated that an individual who fell from the chairlift and missed the last chance basket would likely be injured in the fall.

The witness agreed that various provisions of the Whiteface Mountain Lift Operations Manual (Exhibit 25) prohibit the reading of newspapers and books by lift attendants while on duty and require that attendants watch each passenger while they are unloading and remain next to the control switches at all times. According to Mr. McCulley, attendants are permitted to work on the ramps and there is no specific distance which must be maintained between an operator and the lift controls. He testified that the Lift Operations Manual requires that the safety gate be maintained at a maximum of two inches below the lowest point of the lift chair and that the gate extend six inches beyond the outside of the chair when the lift is operating at full speed. Mr. McCulley agreed that these policies were in place at Whiteface Mountain in April 2008.

The witness testified that he first learned of the incident involving the claimant when Mr. Kegler came to the main office requesting compensation for clothing which had been torn and soiled. The claimant explained the circumstances of the incident at the top of the Summit Quad lift and completed a form as requested by Mr. McCulley. According to the witness, "I knew that he had gone around the bull wheel and got his clothes ripped and dirty" (Tr. 1, 89).

At the conclusion of the witness' testimony, claimant's counsel offered Exhibit 29, a discovery request for "[t]raining logs, sign in sheets and receipts for manuals signed by Morgan Langey regarding safety training in the lift operations department" (Exhibit 29, item "3") and the State's response to the discovery request (Exhibit 30) indicating no such documents were found. Both exhibits were received in evidence.

Claimant next called Joseph Murphy. Mr. Murphy testified that he has known the claimant for approximately fifteen years and was with him at Whiteface Mountain on April 19, 2008. He testified that he and the claimant had snowboarded together approximately every other week during the ski season for the past five to six years and had been to Whiteface Mountain together on two occasions prior to April 19, 2008. He described the claimant as a "very capable" snowboarder (Tr. 1, 98).

Mr. Murphy testified that he and the claimant arrived at Whiteface Mountain at approximately 9:00 a.m. on the morning of April 19, 2008. After several runs down the mountain he, the claimant and the claimant's brother, Thomas Kegler, arrived at the bottom of the Summit Quad chairlift where they experienced no problems loading onto the ski lift chair. The witness was seated to the far left-hand side of the lift chair, Thomas Kegler was to his right and the claimant was seated on the far right portion of the lift chair. The three gentlemen proceeded up the mountain to the top of the Summit Quad chairlift and onto the unloading ramp.Mr. Murphy, seated at the far outside of the lift chair, stood up and skied down the unloading ramp. According to the witness: [*5]

"I got off the chair . . . as I stand up to go down the ramp, went down the ramp, unloaded and as I'm going down . . . I kind of heard a commotion and turned to look back to see Alan caught up on the chair and kind of coming around the bull wheel, the turn there. He got yanked back and dragged up onto the platform . . . up the ramp and onto the platform getting dragged and pulled . . . " (Tr. 1, 104).

At that point Mr. Murphy and the claimant's brother Thomas yelled to the attendant, who was "standing outside of the booth", to shut off the lift (Tr. 1, 105). He then observed the attendant running to the control panel to stop the lift. Mr. McCulley placed an "X" on Exhibit 23 (Exhibit 23B) to mark the spot where he observed the lift attendant standing at the time of claimant's accident. When asked what the lift attendant was doing at the time, he responded "[I]t looked like he was talking to somebody" (Tr. 1, 107).

The witness testified that as the claimant was being dragged along the downslope ramp "[h]e appeared to be caught up on the chair and was reaching to like get himself undone" (Tr. 1, 109). According to the witness, the lift did not come to a stop until after the claimant had been dragged the full length of the downslope side of the ramp ending in a position over the safety basket, which extends outward from the end of the ramp. He observed that the claimant was caught on the chairlift with his feet and snowboard in the approximate center of the safety basket. The witness, Thomas Kegler and the lift attendant assisted in unhooking the claimant from the lift chair and pulling him from the safety basket. A ski patroller came to the scene and inquired as to whether the claimant was injured. The witness stated "after kind of collecting ourselves and catching our breath, we went back to snowboarding" (Tr. 1, 112). Mr. Murphy stated that the claimant became caught on the outermost edge of the lift chair as it passed through the unloading area and that he was pulled past the stop gate approximately six to eight inches from its tip or end point.

On cross-examination the witness testified that as they approached the top of the Summit Quad chairlift he was seated in the far left side of the lift chair and the claimant was seated on the far right side of the chair. He testified that he was able to exit the lift chair without incident and that he was not able to observe how the claimant came to be entangled in the far left edge of the chair because his back was turned to the claimant at that time.

The next witness called at trial was the claimant's brother, Thomas Kegler, who testified that he was with the claimant at Whiteface Mountain on April 19, 2008. After having breakfast they took one or two runs down the mountain before proceeding to the loading area for the Summit Quad chairlift. According to the witness, the defendants' employees did not assist them in loading onto the lift chair but were present at the loading area. As they proceeded up the mountain the witness was seated in the center with the claimant seated to his right and Joseph Murphy seated to his left. He described what happened once they reached the unloading ramp at the top of the Summit Quad lift as follows:

"Joe and I - - well we all stood up and we began to go forward as you normally would off the lift. And as we went down, Joe and I proceeded forward. Alan was caught up in the lift. Then the incident occurred as Alan was caught in the chair itself and was somehow pulled around the bar that normally would shut it off" (Tr. 1, 125). [*6]

Mr. Kegler stated that he was surprised that the safety bar did not become engaged and began to wonder why the lift was not being stopped manually. He turned around and yelled to the lift attendant, who was standing at the base of the stairs leading to the lift shack, to shut the chairlift off.

In describing the incident Mr. Kegler stated that the claimant was in contact with the ground as he passed "within inches of the right of the tip" of the safety gate (Tr. 1, 128). The lift chair to which the claimant was attached came to a stop over the safety basket so that the claimant "was still attached to the chair partially in the air and then partially in the net" (Tr. 1, 130). The witness, Joseph Murphy and the lift attendant assisted the claimant in detaching himself from the lift chair and exiting the safety basket. Following the incident the claimant, Joseph Murphy and the witness snowboarded down the mountain and the claimant went to the main lodge to report the incident.

On cross-examination the witness testified that the claimant had a jacket tied around his waist at the time he was attempting to exit the lift chair, and that it was his jacket which became entangled in the outer edge of the chair.

The claimant, Alan Kegler, testified that he has skied for approximately thirty-six years. He transitioned to snowboarding approximately fifteen years ago and estimated at trial that he snowboards " at least twenty outings a year", averaging 20 to 25 runs on each outing (Tr. 1, 136). Mr. Kegler testified that he had skied at Whiteface Mountain "maybe a half dozen, maybe a few more" times prior to April 19, 2008 (Tr. 1, 137). Each time he skied at Whiteface he utilized the Summit Quad chairlift.

Claimant testified that prior to his deposition in March or April 2011 he went to the top of the Summit Quad chairlift and took certain measurements which are shown in Exhibit 26. In this regard he testified that, combined, the inclined and flat portions of the downslope ramp measured 31 feet 6 inches and the safety basket which protrudes from the edge of the ramp was 5 feet 9 inches in length.

On the morning of April 19, 2008 the claimant, his brother Thomas, and Joseph Murphy completed several runs on what he referred to as "Little Whiteface" (Tr. 1, 146). They then proceeded to the loading area for the Summit Quad chairlift where a lift attendant was present. The lift attendant made no comments as the three men loaded onto the lift chair, the claimant seated in the far right portion of the chair, Thomas Kegler in the middle and Joseph Murphy in the far left seat. As they arrived at the top of the Summit Quad chairlift all three men stood and began gliding down the unloading ramp. Mr. Kegler testified to the following:

"We came in for the normal landing I guess I would call it. I recall all of us feet on the ground, we all stood up to go away and then there's a split second, I saw my two companions kind of veer to the left and I kind of violently quickly got tugged backwards off my feet" (Tr. 1, 148).

The claimant fell onto his back and was dragged around the bull wheel, along the down- slope ramp and the lift chair to which he was attached came to a halt over the safety basket area. Mr. Kegler testified "I recall stretching down by a piece of my jacket fabric into the netting with a bit of my lower torso in the netting with my snowboard and my arms and my head kind of hanging off of the far side" (Tr. 1, 149). The lift attendant, Joseph Murphy and Thomas Kegler assisted in detaching the claimant from the lift chair and pulling him out of the safety basket. The claimant then snowboarded down the mountain to the first aid station. When asked how he was wearing his jacket [*7]at the time of the incident the claimant replied "I had it rolled up and tied tightly around my waist" (Tr. 1, 157).On cross-examination Mr. Kegler testified that following the incident he noticed a rip on the right pocket of his jacket. When asked whether it was his understanding that it was his jacket that became caught on the outside edge of the lift chair he responded, "That's my assumption, yes" (Tr. 1, 162).

Claimant called Stanley Gale as his expert witness. Mr. Gale testified that he has been employed as a ski and snow sport safety consultant since 2003. He began his involvement in the industry as a part-time ski patroller in 1967. In 1972 he moved to Colorado where he spent two years working as a part-time ski patroller at Hidden Valley Ski Resort. He then spent approximately ten years at Arapahoe Basin where he served as a ski patroller, part-time assistant ski patrol director and conducted training and avalanche mitigation. Thereafter he served as a member of the ski patrols at Copper Mountain and Loveland Ski Area. He testified that he "spent thousands of hours in lift shacks working with lift operators", stating that many of the duty stations occupied by ski patrollers are often located near lift station buildings. The witness is a member of the National Ski Patrol (alumni status) and the International Society for Skiing Safety and is a Certified Professional Ski Instructor.

In addition to reviewing the Whiteface Mountain Lift Operations Manual, the witness also conducted a site visit at Whiteface in late February 2011 during which he observed the operation of the Summit Quad chairlift. He noted that the Whiteface Mountain manual requires that a stop gate be no more than two inches below the bottom of the lift chair (Exhibit 25, § 3, p. 9). In addition, the same section of the Lift Operations Manual requires that the stop gate extend "six inches beyond the outside of the chair when lift is operating at full speed". Asked to address the testimony by Morgan Langey, the lift attendant at the top of the Summit Quad chairlift on the date of claimant's accident, that the wand did not extend beyond the edge of the lift chair, Mr. Gale testified that in his opinion the stop gate failed to meet the requirements contained in the Whiteface Mountain Lift Operations Manual. He also stated his opinion that the stop gate did not comply with relevant provisions of the ANSI B77 standards relating to fixed grip area lifts such as the Summit Quad chairlift at Whiteface Mountain. In particular, the witness cited § 4.1.1.9.2(b) of the ANSI B77 standard which provides "[t]he automatic stop device (stop gate) required in 4.2.3.2 shall be located to stop the aerial lift in the event a passenger fails to unload". In addition § 4.3.5.1 of the ANSI B77 criteria require the maintaining of a daily log for entries concerning accidents, malfunctions and unusual occurrences. The witness testified that the events involving the claimant would properly be considered an unusual occurrence requiring a log entry. He testified that no such log entry was made by personnel employed by Whiteface Mountain with regard to claimant's accident.

The witness next reviewed Exhibit 20A upon which Thomas Kegler had placed a green mark denoting the place where he first observed the lift attendant as he turned to request assistance for his brother, Alan. Based upon the position indicated on the photograph by Mr. Kegler, as well as the testimony of Joseph Murphy, he stated:

"He was outside of his work station perimeter where he would be able to quickly and immediately stop the lift. He had left his position of authority and compliance and at the control panel. He was way too far away" (Tr. 2, 50). [*8]

The witness stated that lift controls are located inside the lift shack as well as outside the shack adjacent to the unloading ramp. He stated his opinion that the position of the lift attendant as related by Messrs. Kegler and Murphy was in violation of § 1, p. 7 of the Whiteface Mountain Lift Operations Manual which directs that lift attendants "watch each and every passenger while they are unloading. Remain next to your switches at all times while the people are unloading from the chairlift" (Exhibit 25, §1, p. 7). According to Mr. Gale the testimony by Mr. Langey, the lift attendant, that he observed the claimant entangled with the lift chair through his peripheral vision indicates an additional failure to comply with the above provision of the Whiteface Mountain Lift Operations Manual. He also stated his opinion that Mr. Langey failed to comply with § 4.3.2.3.3 of the ANSI B77 standards which requires, in part, "[s]hould a condition develop in which continued operation might endanger a passenger, the attendant shall stop the aerial lift immediately and advise the operator" (Exhibit 33). He estimated, based upon the location where the claimant testified he was first pulled off his feet when he became entangled in the lift chair (Exhibit 20B) and the distances shown on claimant's Exhibit 26, that Mr. Kegler was dragged approximately 40 to 45 feet to the point where the lift chair came to a stop over the last chance basket.He stated his opinion that had Mr. Langey complied with the ANSI B77 standard and the standards set forth in the Whiteface Mountain Lift Operations Manual the stop button would have been activated immediately, resulting in the claimant being dragged only six or seven feet. As a result, he concluded that Mr. Langey's failure to comply with applicable standards caused the claimant to be dragged an additional 35 to 40 feet. Using Mr. McCulley's testimony that the Summit Quad chairlift operated at a speed of 450 feet per minute or slower, the witness estimated that it took Mr. Langey five seconds to activate the stop button from the time the claimant first became entangled in the lift chair. Finally, he stated his opinion that it was not unusual for skiers to tie clothing around their midsection, particularly during the spring skiing season. As to the happening of the accident, he stated that from his observation of the Summit Quad chairlift and other similar lifts, he has noted that passengers seated on the inside portion of the lift chair "sometimes get bumped by the corner of the chair . . . somehow the clothing attached itself to the chair" (Tr. 2, 69).

Mr. Gale testified that based upon Mr. Langey's testimony that he had not reviewed the Lift Operations Manual in the ten years since he had first received it and, also, the fact that there exists no training logs demonstrating Mr. Langey's completion of training as a lift attendant, it was his opinion that Whiteface Mountain supervisors failed to meet the requirements and duties contained in the ANSI B77 standard. The expert also testified that in order to comply with ANSI B77 standards it was not enough to instruct Mr. Langey that he could be "a reasonable distance" from the lift controls. According to the witness "[y]ou need to define a reasonable distance either in feet, or seconds" (Tr. 2, 72). He stated that in his view a lift attendant should never be more than five to six feet from the lift controls.

On cross-examination the witness agreed that his curriculum vitae does not indicate he has any experience in chairlift operation. While he conducted a site visit at Whiteface Mountain in February 2011, he did not take any measurements at that time. Mr. Gale agreed that, in addition to his other duties, a lift operator is also charged with maintaining the unloading ramp. In order to maintain the unloading ramp the lift attendant must necessarily exit the chairlift shack. Although he had testified on direct examination that a lift attendant should never be more than five to six feet from the lift controls, he was unable to cite any provision of either the Whiteface Mountain Lift [*9]Operations Manual or 12 NYCRR Part 32 (Code Rule 32) which established such specific criteria. Although the Lift Operations Manual contains provisions requiring the stop gate to be no more than two inches below the bottom of the lift chair, he was unable to cite any provision of either the Code Rule 32 or ANSI B77 which established a similar two-inch maximum rule. When asked when New York State officially adopted the ANSI B77 standards he responded "2010 is I believe the testimony that's been offered" (Tr. 2, 82).

The witness testified that he did not measure the stopping distance of the Summit Quad chairlift during his site visit at Whiteface Mountain. Although he reviewed the load test, Mr. Gale testified that nothing contained within the load test results substantiated Mr. Langey's estimation of a seven-foot stopping distance. When asked whether his testimony that a stop button should be pressed immediately takes into consideration an individual's reaction time, he responded "I don't know" (Tr. 2, 86). His estimation that Mr. Langey delayed five seconds in activating the stop button does, however, according to the witness, include a period for perception and reaction times. In this regard he stated "if you see something getting caught you can stop it very quickly because that's what you should be trained to do. Your hands should be near the control panel and attendant to your duties" (Tr. 2, 87). Finally, the witness agreed that the claimant would not have been dragged had his jacket, which was tied around his waist, not become entangled in the lift chair.

At the conclusion of claimant's direct case the defendants moved to dismiss based upon claimant's failure to prove a prima facie case. The Court reserved on the motion and the defendants called Thomas Sanford as their expert witness.

Mr. Sanford testified that he began his career as a member of the ski patrol at Breckenridge Ski Area (Breckenridge). While at Breckenridge the witness also worked as a lift builder during the summer months. He thereafter went to work for a company that sells and services all forms of ski lifts including fixed grip lifts such as the Summit Quad chairlift at Whiteface Mountain. In fact, the witness sold the Summit Quad chairlift to Whiteface Mountain and participated in a load test conducted prior to commissioning of the lift. As part of the load test, speed and stopping distances are adjusted and then tested at 110% of the maximum design weight. The witness testified that minimum and maximum stopping times and distances established by Code Rule 32 permit a maximum stopping distance of "around 30 feet" for a lift running at a speed of 500 feet per minute (Tr. 2, 108). According to the witness, the goal is to bring the lift to a full stop "in a distance that does not disrupt the riders on the chair, the stop won't be so abrupt as to inadvertently have passengers fall out of the chair" (Tr. 2, 108). According to the witness, the State of New York adopted the ANSI B77 standard applicable to chairlifts in 2010.

Based upon the mark applied to Exhibit 20A indicating the place at which Thomas Kegler observed the lift attendant at the time his brother was being dragged by the lift chair, the witness stated his opinion that the attendant was located in an appropriate position "if his business is to do something with the scope of the unload area" (Tr. 2, 113). He was not aware of any regulation which would prohibit the attendant's presence at the location indicated by Mr. Kegler. In his opinion, the stop gate was bypassed because claimant's coat, having become caught in the lift chair as he attempted to exit the unloading area, pulled the chair out of alignment and stretched to a point where the claimant missed the outside end of the gate. According to Mr. Sanford:

"The effect is that it pulled the chair out of position with the weight of this gentleman pulling on his [*10]clothing. It went past the point of the end of the stop gate, allowing the stop gate to not be able to function as if it would have had he still stayed in the chair with his loose clothing" (Tr. 2, 119).

On cross-examination, the witness acknowledged that after leaving employment as a ski patroller he joined West Mountain Sales selling grooming vehicles to ski areas, including facilities owned by the Olympic Regional Development Authority (ORDA). He estimated that during the five years he was employed by West Mountain Sales he sold ORDA approximately ten snow grooming vehicles costing between $100,000.00 and $130,000.00 each. He was not paid a commission on individual sales. He then went to work for a company which manufactures, sells and services chairlifts. He estimated that he has sold "probably a half-a-dozen" chairlifts to ORDA, including the Summit Quad chairlift at Whiteface Mountain which he estimated cost approximately $850,000.00 installed (Tr. 2, 127). He was not paid a direct commission on the sale of the Summit Quad chairlift. He further acknowledged that he continues to market chairlifts to ORDA.

Mr. Sanford testified that he knows Bruce McCulley both as a member of the trade association known as the Ski Areas of New York and also through his interaction with Mr. McCulley at Whiteface Mountain. He also knows Jay Rand and has skied with both Mr. McCulley and Mr. Rand at Whiteface Mountain. He has also socialized with Mr. McCulley and Mr. Rand at functions sponsored by the Ski Areas of New York. He denied that either his familiarity with Mr. McCulley and Mr. Rand or his involvement with the Ski Areas of New York trade association have affected his testimony stating: " I try to look at every case with its merits" (Tr. 2 133).

With regard to the interaction of Code Rule 32 and the ANSI B77 standard, the witness had testified on direct examination that portions of the ANSI B77 standard had been incorporated into Code Rule 32 on a more or less piecemeal basis prior to its formal adoption in 2010. When asked whether that portion of the ANSI B77 standard which governs the duties and responsibilities of lift operators and attendants was incorporated as a part of Code Rule 32 in 2008 Mr. Sanford stated: "It mirrored the 1995 ANSI B77 standard" (Tr. 2, 136). He was also asked about his testimony on direct in which he indicated that the position of the lift attendant as indicated by Thomas Kegler on Exhibit 20A was appropriate to the extent the attendant was engaged in work related to the unloading area. When asked whether the same location was appropriate if the attendant was merely speaking to the ski patroller he stated that it was an appropriate position "[i]f he is talking about ski area business" (Tr. 2, 137). It was his opinion that the location indicated on Exhibit 20A is within relative proximity to the stop gate, which is itself an additional mechanism for bringing the chairlift to a stop. The witness did not review a copy of the Whiteface Mountain Lift Operations Manual prior to testifying nor did he review lift attendant training logs. He testified that one of the primary responsibilities of lift supervisors is to insure proper training of lift operators and attendants and the maintenance of training logs.

Finally, the witness testified that, contrary to his opinion as expressed on direct examination, he had previously concluded that the claimant's accident occurred because the claimant intentionally missed the stop gate "[b]ased on the information that I had at the time, which showed him being caught at the inside position of the chair" (Tr. 2, 153).

On redirect examination the witness stated that the fact that he previously sold chairlifts to ORDA, has socialized with individuals employed by ORDA, and has skied with those individuals, has not affected his opinion regarding the happening of the accident as expressed at trial. The [*11]defense rested its case and renewed its motion to dismiss upon conclusion of Mr. Sanford's testimony. The Court reserved on the motion.

The Court will first address defendants' contention that claimant assumed the risk of injury from exiting the lift chair with loose clothing. The law is now settled that "assumption of risk is not an absolute defense but a measure of the defendants' duty of care" (Turcotte v Fell, 68 NY2d 432, 439 [1986]; see also Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395 [2010]). Viewed in this light, the operator of a sporting venue will be relieved of liability only "when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks" (Morgan v State of New York, 90 NY2d 471, 484 [1997]). These risks include those "commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (id). If the risks of the activity are "commonly encountered or inherent' in a sport", claimant has consented to them and defendant has performed its duty (Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012] [citation omitted]; see also Turcotte v Fell, 68 NY2d at 439 ["fully comprehended or perfectly obvious" risks are assumed by the sport participant]). The Court of Appeals has made clear that "in assessing whether a defendant has violated a duty of care . . . the applicable standard should include whether the conditions caused by the defendants' negligence are 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport' " (Morgan v State of New York, 90 NY2d at 485, quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]).

Here, claimant was an experienced skier admittedly familiar with the rule prohibiting chairlift passengers from wearing articles of clothing "which may become entangled with any part of the device" (see General Obligations Law § 18-104 [9]). Obviously, claimant violated this rule. Nevertheless a failure to properly maintain or operate a chairlift may, if proven, form the basis for liability. For example, in Morgan v Ski Roundtop (290 AD2d 618 [2002]), the plaintiff alleged that the lift operator was improperly trained and negligently failed to stop or slow the lift to enable the plaintiff to avoid a fallen skier. The Appellate Division, Third Department, stated:

"[T]here is undoubtedly some risk of injury inherent in entering, riding and exiting from a chairlift at a ski resort. However, we hold that the latter is not of such magnitude as to eliminate all duty of care and thereby insulate the owner from claims of negligent supervision and training of the lift operator or negligent maintenance and operation of the lift itself since such negligence may unduly enhance the level of the risk assumed" (Id. at 620).

Thus, neither claimant's voluntary participation in the sport of skiing nor his knowledge of the risks associated with riding a chairlift while wearing clothing which may become entangled in the mechanisms of the lift chair relieves the defendants of their duty to operate and maintain the lift in a reasonably safe manner. Like the facts in Morgan v Ski Roundtop (supra), claimant did not assume the risk of injury arising from the defendants' alleged failure to properly operate or maintain the lift since such conditions are above and beyond the usual dangers which inhere in the sport of downhill skiing. The failure to stop or slow a chairlift when a ski resort owner or operator has notice of danger and an opportunity to avoid it constitutes a breach of its duty to secure the safety of its chairlift passengers (Miller v Holiday Val., Inc., 85 AD3d 1706 [2011]). Although the doctrine of primary assumption of risk does not absolve defendants of liability for improper [*12]maintenance or operation of an aerial lift, the Court nevertheless concludes that claimant failed to establish defendants' negligence by a preponderance of the credible evidence.

Claimant contends the defendants were negligent because Mr. Langey, the lift attendant stationed in the unloading area, was not in sufficiently close proximity to the controls or, alternatively, was not paying attention when claimant's coat became entangled in the chair. He also contends that Mr. Langey was not properly trained and that the automatic stop gate at the top of the Summit Quad violated the requirements of the Whiteface Mountain Lift Operations Manual.

Part 32 of the Industrial Code (known as Industrial Code Rule No. 32 [see 12 NYCRR 32-1.1]) governs the operation and maintenance of ski tows and lifts and is intended to "reduce danger and exposure to risk to passengers and maintenance and operational personnel" (12 NYCRR § 32-1.3 [a]). The code version in effect at the time of the claimant's accident adopted the standards set forth in ANSI B77.1-1999 American National Standard for Passenger Ropeways - Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors - Safety Requirements, 1999 Edition, American National Standards Institute (12 NYCRR § 32-1.12).Unfortunately, both parties' experts referred to the 2006 version of the ANSI standard (Exhibit 33) rather than the 1999 version which applied at the time of claimant's accident. Nevertheless, it was undisputed that subpart 32-4 of Industrial Code Rule No. 32, which was in effect at the time of the incident, governed the operation and maintenance of Fixed Grip Aerial Lifts of the type used on the Summit Quad trail. Industrial Code Rule 32 required that "[l]oading and unloading areas shall have lift-stopping devices located conveniently to the attendants assigned to those areas" (12 NYCRR § 32-4.35 [d]). A lift operator is required to be in charge of each lift (12 NYCRR § 32-4.54 [b]) and an attendant "familiar with operational and emergency procedures pertaining to his/her assignment" is required to be assigned particular duties under the direction of the operator (12 NYCRR § 32-4.54 [c]; see also 12 NYCRR § 32-4.55). Each attendant is required to receive "instruction for observation of any potentially dangerous operational or mechanical developments within his/her view and such training shall be documented" (12 NYCRR 32-4.54 [c]). As set forth in the regulation, the duties of a lift attendant are: "(1) to maintain orderly passenger traffic conditions within his/her area of jurisdiction; (2) to advise and assist passengers, as required; [and] (3) to maintain surveillance of his/her area of jurisdiction" (12 NYCRR § 32-4.56 [c]). Industrial Code Rule 32 also requires that "[s]hould a condition develop in which continued operation might endanger a passenger, the attendant shall stop the aerial lift immediately and advise the operator" (12 NYCRR § 32-4.56 [d]).

The Court finds that the testimony in the trial record places Mr. Langey within reasonable proximity to the lift shack and the lift controls. Mr. Langey testified in this regard that he was either on the deck of the lift shack or going up the stairs to the lift shack when he first observed the claimant tethered to the chair. Claimant's brother, Thomas Kegler, testified that when he turned around to yell to the lift attendant he — the attendant — was standing at the base of the lift shack stairs (see Exhibit 20A) and Mr. Murphy likewise testified that Mr. Langey was "standing outside of the booth" (Tr. 1, 105) in the area he marked with an X on Exhibit 23B, which, again, appears to be on or near the base of the stairs leading to the lift shack.

Mr. Langey testified attendants at Whiteface Mountain were permitted to be "within a reasonable distance" of the lift controls (Tr. 1, 40) and Mr. McCulley stated there was "no specific distance" which attendants must maintain relative to the lift controls (Tr. 1, 85). In addition, the Lift [*13]Operations Manual requires top and mid-station attendants to maintain their unloading ramps "as long as they do not have to leave their outdoor switches" (Exhibit 25, p. 7). Thus, the manual permitted attendants some flexibility with regard to their proximity to the lift controls so long as they did not "leave" the controls. Given the claimant's failure to establish a governing rule, regulation or prevailing industry standard, the Court finds claimant failed to prove that Mr. Langey's position at the time of the incident was unreasonable, i.e., that he was unable to observe passengers as they disembarked and reach the controls in a timely manner in the event of an emergency. Whether Mr. Langey was on the deck of the lift shack or at or near the base of the stairs leading thereto, the Court finds he was properly positioned to observe the chairlift passengers as they disembarked and to activate the stop controls when necessary.

To the extent claimant's expert, Mr. Gale, opined that the lift attendant was "outside of his work station perimeter" (Tr. 2, 50) the Court finds his testimony of little probative value. First, he has no training or experience as either a lift operator or attendant. Rather, his background and experience is limited to ski patrol activities and the Court accords his opinions little weight as a result (see Williams v Halpern, 25 AD3d 467 [2006]). Moreover, Mr. Gale's testimony that the lift attendant should never be more than five to six feet from the lift controls was completely unsupported by reference to the applicable regulation or prevailing industry standards. This purported requirement was not set forth in Industrial Code Rule No. 32 and does not appear in the ANSI standards referenced by the claimant (Exhibit 33). Nor did Mr. Gale establish this requirement by reference to custom and practice in the industry (see Trimarco v Klein, 56 NY2d 98 [1982]).Accordingly, the Court finds his opinion in this regard is of limited probative value (see generally Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]; Gardner v State of New York, 79 AD3d 1635 [2010]).

Claimant's expert's opinion that the lift was not stopped "immediately" as required by Industrial Code § 32-4.56 (d) is also unsupported by reference to any industry standards and contrary to the evidence adduced at trial.Claimant here sought to establish the unreasonableness of Mr. Langey's response through the expert's testimony that the lift chair was traveling 7.5 feet per second and the claimant was dragged "close to forty feet", after subtracting a seven foot stopping distance (Tr. 2, 63). Dividing the distance traveled by the claimant by 7.5 feet per second, Mr. Gale testified the attendant took "approximately five seconds" to press the stop button of the lift controls. However, as brought out on cross-examination, the expert's estimate made no provision for the time necessary to perceive, recognize and react to the claimant's emergency. It seems to the Court that any attempt to establish undue delay based upon a calculation such as that discussed by claimant's expert should at least consider the effect of perception, recognition and reaction times. The expert's failure to address these issues, or negate their substantive effect, renders his testimony too imprecise a basis upon which to predicate liability. The need for clarity on this issue is heightened by claimant's failure, as discussed above, to establish specific regulatory or industry standards governing the activity. Industrial Code Rule 32 does not establish any minimum distance an attendant must maintain vis-a-vis the lift controls and provides no basis for determining that Mr. Langey's response time was inadequate. As relevant here, all the governing regulation requires is that the attendant maintain surveillance of his or her area of responsibility (12 NYCRR § 32-4.56[c]) and "stop the aerial lift immediately" if continued operation might endanger a passenger (12 NYCRR § 32-4.56[d]. The Court finds Mr. Langey satisfied these duties on the day in question. [*14]

Testimony established the chairlift unloading area was equipped with an automatic stop gate device located beyond the unloading area as required by Industrial Code § 32-4.10 (b) (6) (ii) and § 32-4.24 (b). No proof, expert or otherwise, established a violation of these sections. Although the Whiteface Mountain Lift Operations Manual required the stop gate "to be maintained a maximum [distance] of 2 inches below the lowest point of the chair when the chair passes over it at full or slow speed" and "extend 6 inches beyond the outside of the chair when lift is operating at full speed" (Exhibit 25, § 3, p. 9), on this record it appears these internal rules "go beyond the standard of ordinary care and cannot serve as a basis for imposing liability" (Gilson v Metropolitan Opera, 5 NY3d 574 [2005]). Notably, no evidence was presented that the requirements set forth in the Whiteface Mountain Lift Operations Manual represent the prevailing standard and practice in the industry and the Industrial Code provisions regulating the use of such devices contain no such requirements (see generally Sniatecki v Violet Realty, Inc., 98 AD3d 1316 [2012]; Rahimi v Manhattan & Bronx Surface Tr. Operating Auth., 43 AD3d 802 [2007]).[FN3]

Equally significant to resolution of this matter is the absence of proximate cause. Even if the stop gate was positioned two inches below the lowest point of the chair or six inches beyond the outside of the chair, it would not have stopped the lift from operating under the facts of this case. With respect to the requirement that the stop gate wand be positioned no more than 2 inches below the lowest point of the lift chair, it is undisputed that claimant was not in the chair when it passed over the stop gate. Compliance with this rule would not, therefore, have prevented claimant from being dragged beyond the point of the bull wheel. Similarly, the manner in which Mr. Langey described the incident indicates that even if the stop gate wand extended six inches beyond the outside of the lift chair, the result would have been the same. Mr. Langey testified in this regard that claimant "was nowhere near [the stop gate]" (Tr. 1, 50) and Mr. Sanford testified that the stop gate was bypassed because claimant's coat pulled the chair out of alignment causing claimant to miss the outside end of the stop gate. While the probative value of Mr. Sanford's testimony was undermined by his relationship with the defendants and their personnel, on this point the Court found his testimony credible and consistent with the testimony of Mr. Langey. Moreover, even claimant's long time friend, Mr. Murphy, testified that claimant missed the end of the stop gate by as much as eight inches. As a result, even had the stop gate been positioned two inches below the lowest point of the lift chair and six inches beyond the outside of the chair, the incident would not have been prevented. The Court finds, therefore, that defendants' alleged failure to comply with its own rules regulating the positioning of the stop gate was not a proximate cause of the claimant being dragged beyond the point of the bull wheel.

Based on the foregoing, the Court finds claimants failed to establish defendants' liability by a preponderance of the credible evidence. Accordingly, the claim is dismissed.

Let judgment be entered accordingly.

Saratoga Springs, New York

October 29, 2012

FRANCIS T. COLLINS

Judge of the Court of Claims Footnotes

Footnote 1:All references to "claimant" are to Alan J. Kegler. Carol Wannemacher's asserts a derivative claim for loss of services.

Footnote 2:Refers to the transcript and page number containing the statement(s) quoted.

Footnote 3:Moreover, the chairlift was not operating at full speed and the requirement that the stop gate extend beyond the end of the chair was therefore not implicated.