Weitz v Ski Windham Operating Corp.

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[*1] Weitz v Ski Windham Operating Corp. 2016 NY Slip Op 51885(U) Decided on November 4, 2016 Supreme Court, Greene County Fisher, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2016
Supreme Court, Greene County

Tara Weitz, Plaintiff,

against

Ski Windham Operating Corp. and Windham Mountain Partners, LLC, Defendants.



14-0832



James R. Carcano, Esq.

Counsel for Plaintiff

65 Rutledge Road

Scarsdale, New York 10583

Matthew J. Kelly, Esq.

Counsel for Defendants, movant

Roemer Wallens Gold & Mineaux LLP

13 Columbia Circle

Albany, New York 12203
Lisa M. Fisher, J.

This is a premises liability matter occurring on March 9, 2014, wherein Plaintiff sustained personal injuries while snow tubing. Plaintiff, her husband, and her daughter went to Defendants' park with another family on the day of the incident. Plaintiff had been snow tubing several times before, but this was the first time at Defendants' park. They arrived at approximately 11:25 AM and began snow tubing. There were approximately seven to eight lanes. Plaintiff testified before her accident she had gone down four times; her husband believed it was five or six times. Each time she had gone down a different lane.

The lanes were approximately 650 feet long and formed out of snow. The lanes started at the top of a hill and sloped downwards. There were warning signs posted at the top of the snow tube hill warning that "tubing is an inherently dangerous sport which can result in personal injury." When asked if Plaintiff read those warning signs, she responded "[n]o, because I've gone tubing before."

The bottom of the snow tube hill was flat followed by a reverse incline to slow the snow [*2]tubes as they reach the end of the lane. In the flat area before the reverse incline there were a minimum of ten black, rubber mats. The mats were approximately three feet by four feet, and were placed side-by-side to form a rectangular grid to cover the entire width of the lane. The purpose of the rubber mats was to slow the snow tubers down by using friction. When the bottom of the snow tubes came into contact with the rubber mats they would slow down and stop before hitting the back snow wall. Such rubber mats are routinely used in the snow tubing industry, in addition to the reverse incline.

Plaintiff was injured at approximately 12:54 PM, after about an hour and a half of snow tubing. She testified that the attendant at the top of the hill spun her backwards and sent her down. As she was going down backwards, she testified that "the tube hit the mat and stopped short." This flew her backwards and into the ground, causing her to hit her head on the ground. She claims that there was a difference in this mat than the other mats because this mat was "dry." However, she also testified that after the accident she did not examine the mats. She testified an attendant at the bottom of the hill said that her accident "happened because [the] mats were dry." Plaintiff could not name or identify the attendant, other than it was a woman. Plaintiff's husband testified he did not even know whether the attendant was a man or woman, just that the speaker was "younger."

Present Application for Summary Judgment

Now, Defendants move for summary judgment arguing that the Complaint should be dismissed under the assumption of risk doctrine. Plaintiff's opposition argued, inter alia, that Defendants have failed to respond to outstanding disclosure responses. Plaintiff requested such motion to be denied outright because of this. Defendants responded by indicating Plaintiff filed the note of issue and certificate of readiness certifying that disclosure was complete. Because of this, Defendants claim they were constrained by Court's order to file a dispositive motion within 30 days of the filing of the note of issue.

The Court conferenced this matter and the parties agreed to permit Plaintiff the opportunity to supplement her motion after completing the outstanding disclosure. Same was allegedly completed, Plaintiff supplemented her opposition, and Defendants submitted a reply. Thereafter, Defendants submitted a supplemental reply containing another document responsive to Plaintiff's disclosure demands which was not previously provided. Plaintiff objected and requested permission to submit a sur-reply given this undisclosed disclosure and the failure to conduct an examination before trial of another fact-witness from Defendants' facility. The Court again scheduled a conference and issued an order granting the further disclosure and examination before trial. Subsequently, Plaintiff submitted a sur-rebuttal which was objected to by Defendants.

Given the less-than-ideal manner in which this matter has proceeded, including prematurely filing the note of issue and slothfully providing disclosure, housekeeping is necessary at the onset of this decision.

First, the Court agrees with Defendants that, in certifying this matter ready for trial and that disclosure is complete, Plaintiff's perceived prejudice of outstanding disclosure is due to Plaintiff's own improvident actions. The original motion has been extended by Defendants and the Court several times, and has remained pending for almost a year to accommodate Plaintiff.

Second, the Court agrees with Plaintiff that Defendants' initial reply contains an affidavit of Jaymey Kuykendall which improperly raises new arguments and evidence in support of Defendants' motion, therefore it is rejected and ignored by the Court. (See Potter v Blue Shield [*3]of Northeastern New York, a Div. of Blue Shield of Western New York, Inc., 216 AD2d 773, 775 [3d Dept 1995]; see also Westbrook v Village of Endicott, 67 AD3d 1319, n. 1 [3d Dept 2009] ["That evidence was improperly submitted for the first time in defendant's reply papers . . . ."]; N.A.S. Partnership v Kligerman, 271 AD2d 922, 923 [3d Dept 2000] ["reply papers are intended to address contentions raised in opposition to the motion and not to introduce new arguments in support of the motion"].)

Third, as to Plaintiff's sur-rebuttal, which the Court's order did not specifically permit such sur-rebuttal, there is a notation in the file from the conference that Plaintiff would indeed be permitted to submit a sur-rebuttal. This conclusion is also logical on the facts, as the Court's order extended the time for Plaintiff to conduct further disclosure during the pendency of this motion. There would be no point to permit such further disclosure if Plaintiff was not permitted to submit a sur-rebuttal. Therefore the Court is reviewing the sur-rebuttal over Defendants' objection.

The matter was marked fully submitted on September 1, 2016.



Legal Analysis

To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. (See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]; accord Hollis v Charlew Const. Co., Inc., 302 AD2d 700 [3d Dept 2003]; Balnys v Town of New Baltimore, 160 AD2d 1136, 1136 [3d Dept 1990] [noting the movant must come "forward with competent proof refusing the allegations of the complaint as amplified by the bill of particulars."].)

Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 NY2d at 562 ["mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient."].) "[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination" (Swartout v Consolidated Rail Corp., 294 AD2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]; Greco v Boyce, 262 AD2d 734, 734 [3d Dept 1999] [holding courts are "to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists."]).

Defendants' motion is anchored by the assumption of the risk doctrine. There are two seminal cases which serve as the backbone of this doctrine. The first is Murphy v Steeplechase Amusement Co. (250 NY 479 [1929]), authored by the great Chief Judge Cardozo. This matter involved the infamous "Flopper" amusement park ride, wherein a rider was injured when he fell due to a sudden "jerk" by the ride. The Court of Appeals found this was the entire purpose of the ride, thus "[o]ne who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball" (Murphy, 250 NY at 481 ["Volenti non fit injuria."]).

The second case recounts the tragic horse-racing story of Ronald Turcotte. In Turcotte v [*4]Fell (68 NY2d 432 [1986]), jockey Fell's "foul riding" resulted in jockey Turcotte clipping the horse in front of him, causing his horse to trip and throw Turcotte into the ground resulting in serious personal injury. Turcotte claimed, inter alia, that "foul riding" was prohibited and a participant cannot accept or consent to the violation of such rule. The Court of Appeals disagreed, finding that, while a violation, "foul riding" was an established part of horse racing and a recognized risk by the very nature of its prohibition. Thus, "[i]f a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks" (Turcotte, 68 NY2d at 437).

New York courts have continued to extensively analyze the assumption of risk doctrine. The doctrine has also been bifurcated into two types, primary and secondary, of which the distinction is without significance here; the primary assumption of the risk is the relevant doctrine for this matter. (See Trupia v Lake George Cent. School Dist., 14 NY3d 392 [2010]; Weller v Colleges of the Senecas, 217 AD2d 280 [4th Dept 1995]; see also Turcotte, 68 NY2d at 438.)

The primary assumption of risk doctrine dictates that "[b]y 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]; see Trupia, 14 NY3d at 395). This includes the risk of injuries that are "known, apparent or reasonably foreseeable consequences of the participation" (Turcotte, 68 NY2d at 439). "It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" (Maddox v City of New York, 66 NY2d 270, 278 [1985]).

Therefore, "[i]f the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" (Turcotte, 68 NY2d at 439 [citations omitted]; see Clements, 272 AD2d at 614). However, the plaintiff does not assume any risks "that were unique and resulted in a dangerous condition over and above the usual dangers inherent in the activity" (Rios v Town of Colonie, 256 AD2d 900, 900—01 [3d Dept 1998], citing Morgan, 90 NY2d at 484). Thus, a plaintiff is not deemed to have assumed risks which are the result of reckless or intentional conduct (Morgan, 90 NY2d at 487), or "concealed or unreasonably increased risk" (Rios, 256 AD2d at 901, citing Benitez v City of New York, 73 NY2d 650, 658 [1989]; see also Daigle v West Mountain, 289 AD2d 838, 840 [3d Dept 2001]). This includes conditions created by the defendants which were "unique and created a dangerous condition over and above the usual dangers that are inherent in the sport" (Own v R.J.S. Safety Equipment, Inc., 79 NY2d 967, 970 [1992]). Whether a plaintiff was aware of the risk is key to determining if she assumed it, and this can only be "assessed against the background of the skill and experienced of the particular plaintiff" (Maddox v City of New York, 66 NY2d 270, 278 [1985]).

Several courts have addressed the assumption of risk doctrine as applied to snow tubing. Many of these cases have found a question of fact defeating summary judgment. (See Huneau v Maple Ski Ridge, Inc., 17 AD3d 848 [3d Dept 2005] [finding a question of fact whether the defendant's attendants were inconsistent with their job duties and unreasonably increased the risk of injury by sending riders down the snow tube lanes too quickly before other riders can clear the bottom]; Daigle, 289 AD2d at 838 [finding question of fact whether the defendant's failure to follow its own policy to close the snow tubing run when it rained constituted an "unassumed, [*5]concealed, or unreasonably increased risk"]; see also Samuels v High Braes Refuge, Inc., 8 AD3d 1110 [4th Dept 2004] [finding question of fact whether the plaintiff made an informed estimate of the risk involved as measured against her skill and experience in snow tubing]). This includes a case cited for support by Defendants and attached to their moving papers, where the trial court granted the defendant's motion for summary judgment based on the assumption of risk doctrine, but the Appellate Division, Third Department, recently reversed and reinstated the complaint. (See Connolly v Willard Mountain, Inc. (__AD3d__, 2016 WL 6106343 [3d Dept, Oct. 20, 2016] [finding whether the base attendant adequately maintained the hay at the run-out area at the bottom of the snow tubing lane and whether it was appropriate under the circumstances to allow the plaintiff to ride tandem with her son present factual questions with regard to whether the defendants unreasonably increased the risk that plaintiff would be injured].)

However, several cases have granted summary judgment in similar cases. (See Youmans v Maple Ski Ridge, Inc., 53 AD3d 957 [3d Dept 2008] [dismissing complaint and finding the plaintiff assumed the risk of falling on snow where the plaintiff was hurrying off the bottom his snow tube lane and hopping over the berm to get his daughter in the adjacent lane out of the way of snow tubers coming down the hill]; Tremblay v West Experience Inc., 296 AD2d 780 [3d Dept 2002] [dismissing complaint where the plaintiff was injured when she over-slid the bottom of the snow tube run and collided with the snow retaining barrier at the end of the lanes as "the risk of impacting the snow barrier was a reasonably foreseeable consequence of plaintiff's participation in the sport and that she was aware or should have been aware of the danger posed by the snow barrier at the end of the run."]; see also Berdecia v County of Orange, 15 Misc 3d 1102(A) [Sup Ct, Orange County 2006, Horowitz, J.] [dismissing complaint where the defendant's attendant at the top of the snow tube lane pushed the plaintiff's tube down the hill causing it to spin and collide with the side of the ice wall/bern, because the plaintiff had been pushed down the hill on each of her prior three runs and the snow barrier had obviously been created to prevent participants from traveling outside their lanes, which made the risk of impacting the snow barrier "a reasonably foreseeable consequence"]).

It shall be noted that, despite the Court's extended research the Court has not found—nor has either party presented—a decision from a New York case involving mats at the end of the snow tube lane. However, Defendants submit the out-of-jurisdiction case of Bazarewski v The Vail Corp. (23 F Supp 3d 1327 [D. Colorado 2014]) involving almost the same exact set of facts. While this Court acknowledges that it is not obligated to follow this decision, and the Court was admittedly hesitant to even review it as the applicable law differs slightly, the Court nonetheless finds the reasoning by the United States District Court for the District of Colorado instructive and persuasive.

In Bazarewski, the plaintiff sat in a large rubber tube and slid down a slide or chute formed from snow. At the bottom of the hill, there were black rubber mats approximately the same size as the mats used in this case. The rubber mats were intended to slow down the tubes and act as stoppers. No helmets or instructions were provided other than to "hang on and go." On his fifth run down the hill, the attendants placed the plaintiff with the handles to his back so he repositioned himself in the tube so the handles were in front of him. As he went down the hill, he was facing backwards when his tube hit the rows of rubber mats. This caused his tube to flip and the plaintiff flew out and landed on his head and neck causing injuries. In dismissing the complaint, the district court found that the rubber mats are an "inherent part of the [*6]experience" in snow tubing. Specifically, the district court stated "an injury which occurred on the course and due to the very nature of the course—whether caused by contact with shaped or packed snow (which may be described as natural) or by contact with rubber mats at the end of the course (which may be described as man-made)—is one resulting from 'inherent dangers and risks' of tubing."

Here, based on the facts and applicable law, Defendants have established entitlement to summary judgment. The deposition testimony of Defendants' representative, Frederick Kane, established that the rubber mats were intended to work using friction to stop a snow tube. He testified that the only problem with the mats was when they got covered in snow or glazed over with ice as it would prevent the mats from working properly and cause snow tubes to go too fast and too far—not stop short. Specifically, he testified that "[t]he wet and dry in those mats doesn't matter, but the wet and dry is almost the same." He continued by testifying "[i]f it's a warm day and the sun is out and they are dry you will stop really quick." But this is mitigated because the participants are told to sit upright and hold on. As to the spinning, Mr. Kane testified that attendants were not allowed to spin customers backwards down the snow tube lane and have been terminated in the past for doing so. He admitted that, even if pushed down normally, a snow tube may still spin on the way down causing a person to go down backwards.

Defendants further submitted the affidavit of Ted Davis, Director of Mountain Operations at Windham Mountain, who averred that the rubber mats at the base of the snow tube hill lanes "are an integral part of the snow tube course." He stated that the mats are purposely placed in such a matter "to ensure that no snow tube can cross through the area without contacting a rubber mat." The rubber mats are simply part of the course design. He stated this is "an industry standard" used throughout many professional snow tube hills throughout the country. He claims that it is a reliable method to slow and stop riders, which is critical to the operation of a snow tube hill since snow tubes do not have brakes. He identified that the only potential issue with the rubber mats is if they glaze over with ice, causing them to be slipperier. He admitted that the rubber mats can become dry if it is sunny and warm outside, but stated "[a]lthough there may be some minor change in how quickly someone will stop on a dry mat versus a wet mat, the change is not substantial." He also noted whether the mat is wet or dry is subject to other conditions at an outdoor winter venue which cannot always be controlled. Finally, Mr. Davis stated that no other individuals were injured on the day of Plaintiff's accident by either stopped too quickly or failing to stop and launching past the course, thus indicating the rubber mats were working as intended.

Defendants also proffered the affidavit of James Mezzetti, Owner/Operator of Tuxedo Ridge Ski Center in Tuxedo, New York. He averred that his snow tube hill also uses rubber mats to slow the snow tubes down at the base of the run. He stated that the rubber mats would be spaced to "ensure that each snow tube would come in contact with one or more rubber mats at the base of the hill." He labeled the rubber mats as "an integral safety feature of the snow tubing hill." He further opined that the rubbers mats are "an industry standard and are in widespread use at snow tubing hills throughout the country."

Given this testimony and support, the Court is satisfied that the rubber mats are both industry custom and an inherent part of snow tubing to stop tubers at the bottom of the lanes. (Morgan, supra.) This risk is not "over and above the usual dangers inherent in the activity" (Rios, supra). Further, the risk of head injury from snow tubing and being stopped—whether by the mats or the snow barriers—is a "known, apparent or reasonably foreseeable consequence[] of [*7]the participation" (Turcotte, supra.) It was not necessary for Plaintiff to foresee "the exact manner in which . . . her injury occurred," but only that she was aware of the mechanism which causes the injury, i.e., stopping at the end of the snow tube lane. (Maddox, supra.) Given her background and experience with snow tubing, to the point where she testified that she did not read the warning sign because she had been snow tubing before, and given her testimony that she knew there was the risk for injury and that the snow tube had no brakes, in addition to the fact that she had been snow tubing for approximately an hour and a half before the accident, the Court is satisfied that Defendants have met their burden.

It was incumbent upon Plaintiff to raise a question of fact or credibility to warrant denial of Defendants' motion, and she has failed to do so. There is no expert affidavit submitted by an engineer or person in the industry to establish that the use of rubber mats is not the industry custom. Nor does Plaintiff argue that the mats are not an inherent part of snow tubing. There is also no expert testimony or evidence that the mats needed to be wet or dry or a certain condition for them to be used properly, only alleged statements by a nebulous individual. Which, even if the Court considers the statements by the alleged attendant that the mats were too dry and caused the subject accident, there is no foundation whether the speaker could make such assertion. Notwithstanding, there has been no testimony that the mats had to be wetted down. Rather, Plaintiff attempts to create a question of fact by pointing to Mr. Kane's testimony stating that a snow tuber will "stop really quick" when dry versus Mr. Davis who averred that there would be a "minor change" between stopping on a wet and dry mat, but that it was "not substantial." Plaintiff's argument is nothing more than semantics. Neither testified that stopping on a dry mat would cause the accident Plaintiff had, but both testified Plaintiff's accident was an inherent risk of snow tubing.

Plaintiff also claims that Defendants did not give her a helmet which could have prevented her injuries. However, this is speculative as it is unsupported with medical evidence. Such claim is also unsupported in the record, as she testified that she did not ask for a helmet.

Additionally, Plaintiff's claim that she was spun backwards by the attendant at the top of the hill is not the proximate cause of her injuries. Mr. Kane testified that a snow tuber would gently spin on the way down and could end up going down backwards. Plaintiff testified that she did not protest the attendant turning her backwards, and that she believed her husband also went down backwards. While Mr. Kane testified that attendants have been terminated for spinning participants, Plaintiff's counsel did not develop the reason for this and the Court will not draw its own assumption.

From the Court's research above, this case is distinguishable from the matters were New York courts have found a question of fact. In Huneau (supra), the allegation was that the defendant's attendants were sending riders down too fast before other riders had cleared that bottom of the lane. In Daigle (supra), the issue was whether the defendants failed to follow its own policy to close the snow tubing hill when it was raining because the lanes would be too slippery and the snow tubes would not stop before the end barrier. In the most similar case, Connolly (supra), the issue was whether defendants failed to put enough hay down to stop the snow tubes when the defendants still allowed the plaintiff to ride tandem, thus making it harder to stop before the back barrier. All of these cases involve the actions of the defendants increasing the risks or enhancing the risks.

Whereas New York courts have dismissed complaints where the plaintiff's injuries were caused by the actual activity and the snow tube hill itself—the course itself. In Youmans [*8](supra), the plaintiff was walking over the snow berm to get into the adjacent lane when he was injured. In Tremblay (supra), the plaintiff was injured when she over-slid the bottom and collided with the wall which was a reasonably foreseeable consequence. In Berdecia (supra), the plaintiff was injured when her snow tube was spun by the attendant at the top and collided with the side of the ice wall/bern separating the lanes. All of these cases involve accidents occurring from the snow tube course and risks associated with the snow tube course in its normal operation—they were inherent to the activity of snow tubing.

Which brings the Court back to Bazarewski, the District Court case from Colorado. This case similarly found that the rubber mats were an integral part of the snow tubing case and an "inherent part of the experience." The facts of this case, while being incredibly similar to Bazarewski, are couched on the same premise as Youmans, Tremblay, and Berdecia. That is, the injuries sustained in those cases were caused by the snow tubing course and the risks associated therewith, which Plaintiff here was injured by the snow tubing course and the risks associated therewith. Defendants' representatives and the supporting affidavit of Mr. Mezzetti all demonstrated that snow tubes were intended to and supposed to always run over the rubber mats. The courses were designed that way. There has been no evidence that Defendants increased the risk or enhancing the risks.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED AND ADJUDGED that Defendants' motion is GRANTED, in its entirety; and it is further

ORDERED AND ADJUDGED that Plaintiff's complaint is DISMISSED, in its entirety, denying any and all claims asserted against all Defendants herein.

This constitutes the Decision/Order/Judgment of the Court. Please note that a copy of this Decision/Order/Judgment along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision/Order/Judgment is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED.



DATED: November 4, 2016

Catskill, New York

HON. LISA M. FISHER

SUPREME COURT JUSTICE

Papers Considered:

1) Defendants' notice of motion, dated January 4, 2016; affidavit of Matthew J. Kelly, Esq., with annexed exhibits, dated January 4, 2016; affidavit in support of motion for summary judgment of Ted Davis, dated January 4, 2016; affidavit in support of motion for summary judgment, of James Mezzetti, dated December 15, 2015; Defendants' memorandum of law, with annexed exhibit, dated January 4, 2016;

2) Affirmation in opposition of James R. Carcano, Esq., with annexed exhibits, dated January 29, 2016; amended affirmation in opposition of James R. Carcano, Esq., with annexed exhibits, dated April 19, 2016; affidavit of Adam Weitz, dated January 29, 2016;

3) Reply affidavit in further support of motion for summary judgment, of Matthew J. Kelly, Esq., with annexed exhibits, dated April 26, 2016, EXCEPT EXHIBIT B IS IGNORED; [*9]supplemental reply affidavit in further support of motion for summary judgment, of Matthew J. Kelly, Esq., with annexed exhibit, dated May 2, 2016; and

4) Sur-reply of James R. Carcano, Esq., with annexed exhibits, dated August 29, 2016.

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