Conery v Snow Time, Inc.

[*1] Conery v Snow Time, Inc. 2004 NY Slip Op 51209(U) Decided on August 2, 2004 Supreme Court, Albany County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2004
Supreme Court, Albany County

JAMES C. CONERY, Plaintiff,

against

SNOW TIME, INC., Defendant.



6573-98



Wayne P. Smith, Esq.

Attorney for Plaintiff

157 Barrett Street

Schenectady, NY 12305

Carol A. Schrager, Esq.

Attorney for Defendant

404 Park Avenue South

New York, New York 10016

Louis C. Benza, J.

Defendant moves this Court for an order pursuant to CPLR 3212 dismissing plaintiff's complaint because, inter alia, plaintiff assumed the risk of injury while participating in downhill skiing. Plaintiff opposes this relief and cross-moves for sanctions for certain disclosure violations.

The relevant facts of this case are relatively undisputed. In November 1995, plaintiff was injured while skiing an intermediate-level trail at Windham Mountain, owned by defendant and operated by non-party Ski Windham Operating Corp. As he was skiing, plaintiff fell after losing his balance on an icy mound, slid into a pile of snow on the edge of the trail and a piece of wood in the pile pierced his buttock causing injury. Thereafter, plaintiff brought this negligence action against defendant, the out-of-possession landowner, seeking recovery for his injuries. After joinder of issue, defendant brought the instant motion alleging that plaintiff, an experienced skier, assumed the risk of injury by participating in skiing. Plaintiff counters that there is a [*2]question of fact concerning whether the piece of wood came from trail widening activities conducted prior to the start of the new ski season and not properly removed, thus being concealed or unreasonably increasing the risks he encountered.

"It is well settled that a ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, * * * when the participant is aware of, appreciates and voluntarily assumes those risks" (De Lacy v Catamount Development Corp., 302 AD2d 735, 736 [2003]; see , Morgan v State of New York, 90 NY2d 471, 484 [1997]). "Whether a participant is aware of and appreciates a particular risk must 'be assessed against the background of the skill and experience' of the participant" (De Lacy v Catamount Development Corp , supra, at 736, quoting Maddox v City of New York, 66 NY2d 270, 278 [2003]). Thus, "[a]n individual who participates in the activity of downhill skiing assumes the inherent risk of personal injury caused by [forest growth, debris, branches, trees, roots, stumps or other natural or man-made objects that are incidental to maintenance of a ski facility] * * * A hazard which has been unreasonably increased or concealed, however, is not within the range of risks that are assumed" (Ruepp v West Experience Inc., 272 AD2d 673, 674 [2000] [citations omitted]; General Obligations Law § 18-101).

Here, plaintiff stated he was an experienced skier who, by his own account, had intermediate to intermediate-advanced skills. Further, he acknowledges that he understood the inherent risks of skiing including ice, forest growth and debris. Thus, the Court determines that plaintiff was aware of and appreciated the risks associated with skiing. Plaintiff argues, however, that he did not assume the risk of the injury-producing object because the object was not an ordinary stick or piece of debris, but, more resembled a shard made as a result of wood-splitting. Defendant submits an affidavit from ski personnel that no widening activities had taken place and, in any event, contends that even if plaintiff's version is credited, he assumed the risk associated with ski operations. The Court agrees. Given that the maintenance of trails, including trail widening activities, deforestation and grooming are incidental to ski area maintenance, and the object that injured plaintiff, are within the confines of the General Obligation Law 18-101, the Court concludes as a matter of law that plaintiff assumed the risk of encountering the injury-producing object (contrast, Basilone v Burch Hill Operations Inc., 199 AD2d 779, 780 [1993]).[FN1] As such, defendant is entitled to dismissal of plaintiff's negligence action.

Accordingly, defendant's motion for summary judgment is granted; all other relief is denied. This memorandum constitutes the Decision and Order of this Court. All papers including this Decision and Order are returned to plaintiff's attorney. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved

from the applicable provisions of this rule with regard to filing, entry and Notice of Entry. [*3]

August 2, 2004____________________________

Albany, New YorkHon. Louis C. Benza, JSC Footnotes

Footnote 1:For the purpose of this motion, defendant stipulates that plaintiff did not leave the ski trail and that plaintiff was told by a ski patroller that she knew exactly where plaintiff was injured after he described the snow- making and log debris where it appeared the trail had been widened (Defendant's Memorandum of Law, p 7, 18).