Martin v State of New York

[*1] Martin v State of New York 2008 NY Slip Op 52684(U) [23 Misc 3d 1133(A)] Decided on March 18, 2008 Ct Cl Hard, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2008
Ct Cl

William C. Martin and Joanne Martin, Individually, and as Parents and Natural Guardians of Brian W. Martin, an Infant Claimant(s)

against

State of New York and New York State Olympic Regional Development Authority, Defendant(s)



111558



Claimant's attorney:Girvin & Ferlazzo, P.C.

By: Christopher P. Langlois, Esq.

Defendant's attorney:Hon. Andrew M. Cuomo, NYS Attorney General

By: Glenn C. King, Assistant Attorney General

Judith A. Hard, J.

Defendants move this Court for an order pursuant to CPLR 3212, granting summary judgment dismissing the claim. Specifically, defendants contend that the doctrine of primary assumption of risk bars claimants' action. In opposing this relief, claimants counter that sufficient factual issues exist concerning, inter alia, whether the defendants took adequate safety measures and whether the infant, Brian W. Martin, appreciated the risk, thereby precluding summary judgment.

On February 5, 2005, the infant Brian W. Martin [hereinafter Martin] was injured while rail sliding at the Lower Valley Terrain Park at Whiteface Mountain Ski Center in Lake Placid [hereinafter the Center].[FN1] Terrain parks are areas where skiers engage in freestyle activities, including obstacles known as rails. Rail sliding obstacles involve gaining speed on the vertical part of a trail and then sliding across horizontal rails supported by vertical posts that are placed at various points on the trail. At the time of the accident, Martin was 17 years of age and a self-described expert skier, having learned to ski when he was four years of age. Martin also stated that he had previously visited terrain parks and engaged in rail sliding obstacles on approximately 10 occasions, and acknowledged that on some of these occasions he had fallen from the rails after losing his balance.

On the date of the accident, Martin arrived at the Center around 8:00 A.M. with three friends. They did several downhill runs and thereafter went to two of the terrain parks at the ski Center. At the second terrain park, a black diamond trail,[FN2] Martin engaged in sliding. On this particular rail slide the vertical posts were not encased in any skirting or cushioning material. On his second slide on this rail, claimant fell off the horizontal rail, struck his left leg on a vertical post and broke his tibia.

As a result of his injuries, Martin's parents, claimants William C. Martin and Joanne Martin, commenced this action individually and on behalf of Martin. They allege that defendants were negligent by failing, inter alia, to reasonably construct and maintain the rail slide. Specifically, claimants allege that the rail slide failed to have skirting or cushioning around the vertical posts. After joinder of issue, defendants brought the instant motion for summary judgment.

In support of their motion, defendants contend that the rail consisted of an open and obvious condition, and Martin assumed the risk of injury because, as a self-described expert skier, he knew the potential for injury and nevertheless participated in the injury-producing activity. In opposition, claimants counter that Martin did not appreciate the risk created by a lack of skirting or cushioning on the injury-producing rail, and the lack of skirting or cushioning on the rail slide unreasonably increased the risk of injury.

A defendant's duty in sport or recreational activities is a duty to exercise care to make the conditions as safe as they appear to be (see Turcotte v Fell 68 NY2d 432, 439 [1986]). "If the [*2]risks of the activity are fully comprehended or perfectly obvious, a [participant] has consented to them and defendant has performed its duty" (id). This tenet is codified in the doctrine of primary assumption of risk, which provides that "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 of New York, 90 NY2d 471, 484 [1997]). Thus, it is well settled that participants in recreational activities, such as skiing, are presumed to have assumed the risk of potentially injury-causing conditions that are known, apparent or reasonably foreseeable (see Turcotte v Fell, supra , at 439). "Whether a given participant is aware of and appreciates a particular risk must be assessed against his or her skill, background and experience" (Myers v Friends of Shenendehowa Crew, Inc., 31 AD3d 853, 854 [3d Dept 2006]).

Here, Martin is a self-described expert skier, with approximately 13 years of experience prior to his accident. Although Martin was not as experienced in using rails in terrain parks, he had used them on numerous occasions. He described rails as a horizontal structure supported by metal posts, and when he fell off the rail obstacle, he knew to fall away from the rail. As an expert skier, Martin assumed the risks inherent in the sport of skiing (see Morgan v State of New York, supra ), which include the risk of injury resulting from the obvious risk of falling while skiing across a narrow metal rail supported by metal posts. Thus, defendants sustained their initial burden to obtain summary judgment (see generally Maddox v City of New York, 66 NY2d 270, 279 [1985]). Claimants must now demonstrate a genuine issue of material fact (id).

To avoid summary judgment, claimants submit the affidavit of a rail designer, Day Franzen. He opines that an unskirted rail slide poses a substantial increase in the likelihood of serious injury. It is noted that Franzen provides no basis to be qualified as a safety expert. Further, even if the Court deemed Franzen an expert, he does not cite to any recognized standard adopted by any specific organization or governmental entity to support his opinions or conclusions (see Honohan v Turrone, 297 AD2d 705, 706 [2d Dept 2002]; compare Zmitrowitz v Roman Catholic Diocese of Syracuse, 274 AD2d 613, 614 [3d Dept 2000]). Moreover, the vertical posts were an open and obvious part of the rail. Although the rails could have been skirted or padded in the terrain park, defendants are only required to make the conditions as safe as they appear to be (see Turcotte v Fell, supra , at 439). There is no requirement that defendants make the condition as safe as it could be (see Roberts v Boys and Girls Republic, Inc., __ AD3d __, __, 850 NYS2d 38, 43 [1st Dept 2008]).

Claimants also contend that there is a factual issue concerning whether Martin appreciated the risk posed by the unskirted/unpadded rails. The Court is cognizant that Martin avers that, at the time of his accident, he thought rail skirting was for the purposes of advertising and he did not understand that the skirting provided a safety feature to the rail. The Court notes, however, that Martin fails to state that he would not have used the rail without the skirting had he known at the time of his accident that the skirting was a safety feature. As such, the Court concludes that claimants have failed to demonstrate a genuine issue of material fact.

Accordingly, defendants' motion for summary judgment is granted and the claim is dismissed. Footnotes

Footnote 1:The Center is operated by defendant Olympic Regional Development Authority under the auspices of defendant State of New York (Public Authorities Law § 2622 [4]).

Footnote 2:A black diamond trail signifies an advanced level of difficulty.