Matter of Casey v Olympic Regional Dev. Auth.

[*1] Matter of Casey v Olympic Regional Dev. Auth. 2019 NY Slip Op 29247 Decided on June 21, 2019 Court Of Claims McCarthy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 21, 2019
Court of Claims

In the Matter of the Claim of David F. Casey and JANICE CASEY, Claimants,

against

Olympic Regional Development Authority and THE STATE OF NEW YORK, Defendants.



126115



Claimant's attorney:

McPhillips, Fitzgerald & Cullum, LLP

By: Courtney M. Haskins, Esq.

Defendant's attorney:

LETITIA JAMES

Attorney General of the State of New York

By: Glenn C. King, Esq., AAG
Christopher J. McCarthy, J.

The Court finds that Claimant, David F. Casey,[FN1] failed to establish, by a preponderance of the credible evidence, that Defendants, New York State Olympic Regional Development Authority and the State of New York (collectively hereinafter, "Defendant," "ORDA," or the "State"), were [*2]negligent in connection with personal injuries Claimant sustained in a skiing accident. The Claim arose on March 19, 2015 when Claimant collided with a rope line and was injured on the Wilmington Trail at Whiteface Mountain (hereinafter, "Whiteface").

A bifurcated trial, addressing liability issues only, was held on June 26-27, 2018 at the Court of Claims in Albany, New York. There were six witnesses at trial: Claimant; his friend, Francis F. Cabana, Jr.; Gary A. Marchuk and Thomas Cooper (ski patrollers employed by ORDA); Mark A. DiNola (Claimant's expert); and Mark Petrozzi (Defendant's expert). Portions of examinations before trial conducted on December 15, 2016 (each, an "EBT") also were read into evidence for three witnesses: Mr. Cooper; James Hoyt (the head of ski patrol at Whiteface); and Michael LeBlanc (the assistant manager at Whiteface). In addition, the EBT conducted on June 20, 2018 of Craig Scott, another friend of Mr. Casey, was received into evidence. Thereafter, the parties requested and were granted additional time to order a transcript and submit post-trial memoranda.

FACTS

The Accident

Claimant's accident occurred at about 10:15 a.m. on March 19, 2015 while he was skiing with Mr. Cabana and Mr. Scott at Whiteface. Mr. Casey collided with a rope line that was part of a barrier or array erected across the Wilmington Trail, near its bottom end where it intersects with the Boreen Trail.

Mr. Scott was the first of the trio to reach the barrier/array, followed by Mr. Cabana. Mr. Scott was 15-20 feet away when he first noticed an orange caution banner and slowed down before proceeding around and behind the caution banner and through a gap or opening between two vertical, orange bamboo poles with orange discs attached to the tops (each hereinafter, a "lollipop pole") (Ex. 6, pp. 16, 18, 21-22, 39-40; see Tr., pp. 140, 158, 163, 338). Rope lines, attached to each of the lollipop poles, were strung across each side of the trail and were attached to trees beyond the edges of the ski trail. Mr. Cabana also saw the caution banner, but skied away from it. When he was about 10 feet away, however, he saw one of the rope lines so that he had to make an abrupt stop (Tr., pp. 86-87, 95, 111). At trial, he said that he "came very close" to hitting it (Tr., p. 88). At his EBT conducted on April 5, 2015, however, he said that he saw the rope line just before getting to the caution banner, and stopped on the right side of the trail to ponder how to proceed (Tr., pp. 107- 108). He then skied through the gap/opening between the rope lines/lollipop poles, and joined Mr. Scott (Tr., p. 93). Mr. Scott said that he had no difficulty getting through the gap/opening, and did not think Mr. Cabana did either (Ex. 6, pp. 24-25). The two then skied across the intersection of the Wilmington Trail with the Boreen Trail and waited for Mr. Casey at a point Mr. Scott thought was 70-80 feet downhill from the barrier/array (Ex. 6, pp. 14-15, 23). Mr. Di Nola agreed that Mr. Scott's decision to slow down, and Mr. Cabana's decision to stop, each was prudent (Tr., pp. 285-287).

Claimant saw his two companions ski off ahead of him, but did not remember watching them go by any ropes (Tr., p. 44). He said that he was skiing down the trail in a "traverse" fashion, going "across the trail, turning, coming back, going across the trail, turning, coming back" (Tr., p. 31). Claimant explained that, when "I make turns, I look down at my skis to see where my skis are, and when I turn, I'm looking more at my skis and the contour of the land where I'm making my turn than anything else" (Tr., p. 31; see pp. 52-53). Mr. Casey said that he does not look down a trail until after he has completed a turn and has begun traversing across the trail again so that, while he probably had looked down the Wilmington Trail when he was farther up the mountain, he did not [*3]do so when he was near the barrier/array where the accident occurred (Tr., pp. 64-65).

Mr. Casey agreed that he did not observe the caution banner, or recall reading it (Tr., pp. 63-64, 66). Rather, he only saw that something was on the trail, but did not know what it was, and made no effort to find out if anything was written on the banner (Tr., pp. 59-60, 63-64). Instead, he skied past, or around, or away, from the thing that he saw, headed toward his right, beyond the thing/sign, made a left turn intending to go back across the trail again, and collided with a rope line (Tr., pp. 34-35, 59, 63, 66). Mr. Casey said that: he is six feet tall; he was coming out of a crouch as he came out of his turn; the rope struck him across his mouth and just underneath his lower lip; and the impact was very sudden and knocked him down (Tr., pp. 40-42).

Mr. Scott gave a similar account. He observed Claimant approach the barrier/array and became worried because Mr. Casey was not skiing toward the caution banner and the gap/opening (Ex. 6, pp. 23-24, 42-43). Mr. Scott saw: Mr. Casey hit the rope; the rope line stretched in a "V" formation before the lollipop pole to Claimant's left pulled out of the ground and moved to the left; Mr. Casey flipped violently to his left, hit the ground hard, and landed on the right side of his face; and Claimant's skis came off (Ex. 6, pp. 25-26, 31, 35, 42). Both Mr. Casey and Mr. Scott said that Claimant was not skiing very fast (Tr., pp. 34, 53 [Casey]; Ex. 6, pp. 24-25 [Scott]). Mr. Cabana did not witness the accident (Tr., p. 109).

Mr. Casey reckoned that he was about 20 feet from the caution banner when he first saw it, and that he hit the rope line no more than five seconds later (Tr., pp. 37-38). Mr. Scott said that Mr. Casey made no attempt to stop (Ex. 6, p. 24). Mr. Casey said that he never saw the rope, the ribbons on it, or any other markings of any kind, prior to his accident (Tr., pp. 39-40, 65). At trial, however, he was able to see the lollipop pole, as well as the rope line with little ribbons on it, in the top photograph in Exhibit 3, which he estimated, was taken from a distance of about six feet away from the pole (Tr., pp. 53-57). By contrast, Mr. Marchuk, who took the photograph, said that he was standing 10-15 feet uphill from the rope line, based upon the skis visible in the picture (Tr., pp. 164-165).

After the accident, Mr. Scott took his skis off and went to assist Claimant. He saw that Mr. Casey was bleeding from a cut just underneath his bottom lip, and gave him some gauze pads, while Mr. Cabana skied to get help from the ski patrol, who arrived quickly and attended to Claimant (Tr., p. 43 [Casey]; Ex. 6, pp. 27-28, 31 [Scott]). At the accident scene, Claimant and Mr. Cabana each saw the rope line Mr. Casey collided with lying on the snow, with Mr. Cabana adding that it was over by the edge of the trail, almost into the woods (Tr., pp. 47 [Casey], 98-99 [Cabana]).

Mr. Casey, who was 67 in 2015, said that he has skied sporadically since 1966, a little bit more since he retired from work (Tr., pp. 20, 22). He had been skiing 100 or more times in his life prior to the date of his accident (Tr., p. 45) and said he was an intermediate skier at the time of his accident (Tr., p. 22). Mr. Cabana thought that both he and Claimant were "lower intermediate" skiers, not beginners (Tr., pp. 82-83). Mr. Scott described himself as "a little bit above average," not an expert skier, but was not able to classify Mr. Casey's skiing ability (Ex. 6, pp. 6-7, 11).

Mr. Casey was aware of the skier's responsibility code, and said, "[y]es, I guess" when asked whether he was supposed to understand it, but he had never read that he was responsible to observe all posted signs and warnings (Tr., p. 60-61; see Ex. A, ¶ 6 [hereinafter, the "Skier's Responsibility Code"]).

The Barrier/Array

The barrier/array included an orange banner with the word "CAUTION" printed on it in black letters (see Exs. 4 & 5). Mr. Petrozzi thought that the dimensions of the banner were about one foot by five feet (Tr., p. 370) and said it was located toward the center of the ski trail, uphill from, and in front of, the two sets of rope lines and lollipop poles. The rope lines had the effect of funneling skiers toward the lollipop poles and the middle of the trail. As noted, the two rope lines did not meet so that the gap/opening between the two lollipop poles left a space through which skiers could proceed down to the bottom of the Wilmington Trail (see Tr., pp. 71, 140, 158, 163, 338; Ex. 6, p. 17). The rope lines also had bunting or ribbons on them (see Tr., p. 140). Each lollipop pole sat in an approximately 12-inch deep hole drilled into the snow to help keep them standing upright (see Tr., pp. 158-159).

The barrier/array was intended to slow skiers as they reached the bottom end of the Wilmington Trail so that they would not collide with other skiers on the intersecting Boreen Trail (Tr., pp. 70-71 [Hoyt]; Tr., p. 340 [Cooper]). The Wilmington Trail is designated as a more difficult trail, while the Boreen Trail is designated as an easier trail and also is a Family Slow Skiing Zone in that area (see Ex. A [Whiteface trail map]).

Mr. DiNola, Mr. Casey, and Mr. Cabana, each had never seen a barrier/array configured precisely like the one at the bottom of the Wilmington Trail. Mr. Marchuk thought it probably is a unique configuration at Whiteface, reflecting the particular intersection which, he said, has a blind corner where the trails come together, as well as the traffic volume there (Tr., pp. 211-214). He also said, however, that the barrier/array in place on the date of the accident is standard for that location and, generally, has been used since the trail opened during the 2005-2006 ski season (Tr., pp. 183, 222-223). At first, Mr. Scott said that he had seen that exact barrier/array before and knew to anticipate it (Ex. 6, pp. 18-20, 45-46). Later, however, Mr. Scott said that he was not aware that he ever saw a configuration like the barrier/array before with one end tied to a tree (Ex. 6, pp. 35-36).

Expert Opinions

Mr. DiNola expressed a number of opinions within a reasonable degree of ski safety certainty (see Tr., p. 266). Mr. Petrozzi expressed his opinions with a reasonable degree of certainty in the area of ski area operations, including hazard marking, as well as the respective responsibilities of ski areas and skiers (Tr., p. 360). The experts agreed that few promulgated standards govern how ski areas should use caution banners, lollipop poles, discs, and rope lines, and, accordingly, they often looked to generally accepted practices in the ski industry when formulating their opinions.

Mr. DiNola opined that the Wilmington Trail was not as safe as it appeared to be for skiers and that the barrier/array unreasonably increased the risk of injury to them (Tr., pp. 266-267). Specifically, Mr. DiNola opined, with respect to the caution banner, that: it was too small and was placed too close to the rope lines and the gap/opening; and it was not the proper sign for the barrier/array and other warning banners should have been used instead. As for the rope lines, Mr. DiNola opined that: it was not good practice to anchor them to trees because it made them too rigid; breakaway clips should have been used so that they would release if a skier hit them; they were not as visible as they could have been if other colors had been used for the ropes and lollipop poles; they were allowed to droop too low, creating a risk that a skier would trip/get tangled in them; larger bunting should have been attached to the ropes to provide a better visual cue to skiers; and more lollipop poles should have been used to support the rope lines. Moreover, Mr. DiNola opined that pop fencing should have been used instead of rope lines because it is more visible to skiers.

Mr. Petrozzi opined, to the contrary, that Whiteface was under no obligation to do anything different with the barrier/array because, "not only [was it] the right thing, it was the best thing" (Tr., p. 376). He opined that the barrier/array did not constitute a dangerous condition because it was open, obvious, visible, and marked, and as such, Claimant should have been able to avoid it. Rather, in his view, the danger arose because Mr. Casey failed to heed the warning provided by the barrier/array so that, even after he saw "something," he continued to approach the area without altering his course or speed. He did not slow down, look more carefully, or stop, so that he could assess the situation and take appropriate action. Mr. Petrozzi opined that Claimant was not skiing with reasonable care for his own safety and in violation of Article 18 of the General Obligations Law (hereinafter, "GOL") §18-101 et seq. (hereinafter, the "Safety in Skiing Code") to ski under control, keep a proper lookout, and observe all posted signs/warnings.

The Caution Banner

Mr. DiNola opined that the caution banner was too close to the gap/opening between the lollipop poles and should have been farther up the hill so that a reasonable skier had time to react to it properly and could ski around it (Tr., pp. 255, 267-268). He also opined that a larger caution banner, at least four feet square, would have been more appropriate (Tr., p. 265).

Mr. LeBlanc said that no specific guideline governs the placement of such caution banners. Rather, it depends upon the circumstances in each case (Tr., pp. 114, 351). In this instance, Mr. Petrozzi said that the banner could be as close as five feet, but should be no more than30 feet, uphill from the barrier/array because it needs to be near the gap/opening into which the skiers are being funneled (Tr., pp. 430-432). Mr. LeBlanc thought it should be about 30 feet, so that skiers could see what lay beyond the banner (Tr., pp. 115, 351)[FN2] , while Mr. Hoyt said 20-30 feet (Tr., p. 74). As for witnesses who were present on the date of the accident, at trial, Mr. Cabana thought the caution banner was about eight feet uphill from the gap/opening. In a written statement he provided on April 5, 2015, however, Mr. Cabana indicated the distance was 10-15 feet (Tr., p. 106). Mr. Cooper, on the other hand, thought it was about 10 feet (Tr., p. 343), while Mr. Marchuk and Mr. Scott each thought the distance was 15-20 feet (Tr., p. 222 [Marchuk]; Ex. 6, p. 22 [Scott]).

Other Possible Warning Signs

Mr. DiNola opined that Whiteface failed to give proper notice to skiers descending the Wilmington trail about a dangerous slow zone ahead on the Boreen Trail because it did not erect such a go slow banner (Tr., pp. 254, 264). He also expected to see a trail merge banner where the caution banner was placed (Tr., pp. 253-254).

Mr. LeBlanc agreed that a "trail merge" banner was a possible alternative, and that such signs are used at Whiteface, but not on the Wilmington Trail, although he did not know why that was so (Tr., p. 117). Mr. Cooper also said that go slow signs are used (Tr., pp. 338-339). Mr. Petrozzi said that the alternatives to the caution banner suggested by Mr. DiNola were not appropriate, however, because both the trail merge and the slow skiing zone did not begin until after a skier was past the barrier/array (Tr., p. 377). Rather, he said that the caution banner warned skiers that the width of the [*4]trail was being reduced and that they were being funneled from an 80-foot wide trail into a much smaller gap/opening (Tr., p. 415). Mr. Petrozzi said that the caution banner should have prompted experienced skiers to slow down and to look more closely at the area so that they could take appropriate action (Tr., pp. 378, 411).

Rope Lines Tied to Trees

Mr. DiNola opined that the Wilmington Trail was not as safe as it appeared to be for skiers because the danger posed by anchoring one end of the rope line to a tree in this barrier/array would not be apparent to them (Tr., p. 266). It was not a good practice, in his opinion, because it made the rope line too rigid so that it would not break away upon contact with a skier, thereby adding a new risk to those already inherent in the sport of skiing, namely, that the skier might be "clotheslined" by the rope line (Tr., pp. 258-259, 268). Mr. Scott, likewise, thought it "strange" that the rope line was tied to a tree because he thought one would want the rope to give, like the lollipop pole which came out of the ground (Ex. 6, pp. 35-36).

Mr. Marchuk said that Whiteface also prefers to use lollipop poles, rather than trees, to support rope lines, but for a different reason, so that it is easier to move the ropes (Tr., pp. 183-184). He said that often, however, the snow cover in the woods off the sides of the trails is too sparse to anchor the poles there so that they cannot provide sufficient support to the rope lines and keep them from falling over (Tr., pp. 145, 218-219).

Mr. Petrozzi said much the same thing. Almost every ski area he has worked with, or skied at, ties one end of rope lines to trees in a similar manner as was done in this instance because it helps assure that the rope lines remain in place and are not knocked down (Tr., p. 433). Mr. Hoyt agreed that was the purpose and that it would be quite rare for a rope tied to a tree to go down (Tr., pp. 72, 348-350). By contrast, he said that rope lines that are not tied to trees "go down a lot, actually" (Tr., p. 350). Mr. Marchuk said that, without ropes, the goal of preventing skiers on the Wilmington Trail from coming out into oncoming traffic on the Boreen Trail would not be achieved (Tr., pp. 196, 219-220). Mr. Hoyt thought so too (Tr., p. 349). He did agree that a skier is more likely to be injured if he or she strikes a rope line that is attached to a tree rather than a lollipop pole (Tr., p. 73), and so did Mr. LeBlanc (see Tr., p. 116). Mr. Hoyt also said, however, that ropes are seldom struck by skiers, not more than five times in his recollection during the 15 years that he has been head of the ski patrol (Tr., pp. 70, 72-73, 349). Mr. LeBlanc, likewise, said that skiers only "rarely" strike such ropes (Tr., p. 351). Mr. Marchuk said that it only happens occasionally, and he could not recall anyone colliding with the rope lines that are part of the barrier/array in question since the Wilmington Trail opened in 2005-2006, nor could he recall any complaints about those ropes (Tr., pp. 215, 223). Mr. Cooper said that no skier ever hit the ropes like Mr. Casey did (Tr., p. 342). Mr. DiNola was not aware of any other accidents in which a skier collided with the rope line in this barrier/array since the trail opened during the 2005-2006 ski season (Tr., p. 317).

Breakaway Clips

Mr. DiNola said that, if a rope line is anchored to a tree, it is "common practice" to use breakaway clips that will release if a skier hits the rope, rather than a taut rope that risks "clotheslining" the skier (Tr., p. 259). Mr. LeBlanc said that a breakaway clip might be better than tying the rope to a tree, depending upon the situation (Tr., pp. 119-122). Messrs. Hoyt, Marchuk, and LeBlanc each said, however, that Whiteface did purchase some breakaway clips (Tr., pp. 119, 147-148, 350), but Mr. LeBlanc explained that they "never seemed to work for us" (Tr., p. 350). He [*5]said that they were always broken, actually would snap in cold weather, and the wind would blow down whatever they were attached to, so that "they are actually a useless option. We did try" (Tr., p. 350). For those same reasons, Mr. Cooper concluded that "they weren't really effective" (Tr., p. 321). Mr. Marchuk said much the same thing, that the breakaway clips "weren't reliable, period," and "better in theory than in practice" because of their propensity to break or fall apart, and to fail to connect or separate as needed (Tr., pp. 227-228). In Mr. Petrozzi's experience, the clips often failed to break away as intended/desired during cold weather and, at other times, did so when were not supposed to/did not need to break (Tr., p. 381). Mr. Marchuk noted that "the whole idea of this [barrier/]array is to prevent people from going out into oncoming traffic" (Tr., p. 150). If the breakaway clips broke, leaving nothing there, it would, in his view, create a much more serious problem (Tr., pp. 148-150, 226).

In any event, Mr. Petrozzi said that breakaway clips were unnecessary because the lollipop pole itself acted as a breakaway system so that, when Mr. Casey collided with the rope line, the lollipop pole did pull out of the ground as intended (Tr., p. 380). Mr. Marchuk agreed, adding that the ropes have enough slack to give a little bit if they are hit (Tr., p. 146). In fact, Mr. Petrozzi said that the lollipop pole should not break away too easily because it then would be prone to fail or break under windy, snowy, and/or icy conditions (Tr., p. 434). Mr. Cooper agreed that clips might be less prone to break on warmer days, but said they still might fail if it was windy (Tr., p. 324). Mr. Petrozzi further said that, even if the bamboo lollipop poles do not pull out of the ground, it does not take much pressure before they snap, and that breakaway factor is the reason the ski industry uses them (Tr., p. 435).

Mr. DiNola noted testimony that breakaway clips did not work, but still said they were "perfectly acceptable" to use for their intended purpose of breaking away in situations like Mr. Casey's collision with the rope (Tr., p. 259). At the same time, at first he could not remember if the lollipop pole came out of the ground after Mr. Casey collided with it, adding that "[w]hether or not [the pole] came out [of the ground] is not the issue in this case" (Tr., p. 301; see pp. 299-301). Yet, he agreed that it was desirable, if breakaway clips were not used, that the pole come out of the ground if a skier struck the rope (Tr., pp. 301-302). Later, he said that the lollipop pole did come out of the ground, but when asked if that was a good thing, his response was, "I suppose" (Tr., p. 302).

Orange Lollipop Poles, Discs, and Ropes

Lollipop poles are used to mark manmade hazards on trails that are less than six feet tall, as well as to highlight other conditions, such as holes or icy spots, where care should be exercised. Mr. Marchuk said that orange is the standard color for lollipop poles and discs (Tr., p. 163). He did not recall ever seeing black poles and yellow discs, yellow poles with black discs, or orange and black bamboo poles (Tr., pp. 163-164). Mr. Petrozzi said that lollipop poles usually are blaze orange, or else alternating orange and black, and that the blaze orange lollipop poles and discs can be seen from a significant distance under most lighting conditions (Tr., pp. 403, 405-406).

Mr. Marchuk agreed that the rope also was a solid orange color. He has seen multi-colored rope elsewhere, but never at Whiteface (Tr., pp. 172-173). In his personal experience, Mr. Marchuk said the florescent orange rope stands out best (Tr., p. 174). A May 2010 insurance article read to Mr. Petrozzi by Claimant's counsel asserted that most resorts use three-strand black and orange, or black and yellow, rope and that the author found them to be more visible than solid-colored rope [*6](Tr., pp. 452-453). Mr. Petrozzi disagreed and said that research supports the conclusion that solid-colored ropes are more visible than multi-colored ropes under many lighting and visibility conditions (Tr., pp. 453-454).

Drooping Rope Line

Lollipop poles typically are about eight feet tall (Tr., p. 159), although Mr. Marchuk thought the pole near where Mr. Casey collided with the rope line probably was shorter (Tr., p. 208; see Ex. 3 [top photo]). The rope lines themselves were placed at about chest level, between five and six feet off the ground (Tr., pp. 97, 108-109 [Mr. Cabana], 208[Mr. Marchuk]).

Mr. DiNola opined that this barrier/array unreasonably increased the risk of injury to skiers because the use of a single lollipop pole for each rope line caused the line to droop across the trail at a height of less than six feet above the ground, which made it more difficult to see, and created a risk that a skier could get caught in it (Tr., pp. 258, 266-267; see Ex. 3 [top photograph]). Later, however, he indicated that this opinion was based upon the testimony of one of the ski patrollers who stated that ropes should not be allowed to droop (Tr., p. 294). Mr. Cooper did say that a sufficient number of lollipop poles are used to keep the rope line from drooping and so that it is visible at a distance (Tr., p. 341). Mr. DiNola also agreed that no regulations govern how low a rope line is permitted to droop (Tr., pp. 296-297). He further agreed that he did not measure the rope line and did not know its height above the ground at its lowest height (Tr., p. 294).

By contrast, Mr. Petrozzi said that most rope lines droop or sag in the middle (Tr., p. 418). Mr. Petrozzi reckoned that the rope line here was about 5 ½ feet tall where it is attached to the lollipop pole and, thus, was lower than that at the bottom of its droop or sag (Tr., p. 422; see Ex. 1; Ex. 3 [top]). Mr. Petrozzi said that, while there are no per se standards, studies indicate, and the general practice is, that rope lines should be between 3 ½ - 5 ½ feet above the ground in order for skiers who are looking downhill to see them (Tr., pp. 424-425). As for any sag in the rope, Mr. Marchuk said that if the rope line is too high, people can ski under it, and, if it is too low, they may trip over it (Tr., pp. 205, 219).

Additional Lollipop Poles

Mr. DiNola also said that the barrier/array should have utilized more lollipop poles in order to prevent the rope line from drooping, and to provide reasonable warning to skiers that they needed to avoid that area (Tr., pp. 267, 297). Mr. Marchuk agreed that additional lollipop poles could be added to increase the visibility of the barrier/array, but observed that it also would increase the strength of the system and decrease the capacity of the poles to pull out of the ground, so that collisions with the barrier/array would be more severe (Tr., pp. 199-200). Mr. DiNola professed to have no idea whether or not the addition of more lollipop poles would make the rope line more rigid and harder to come out of the ground if a skier collided with it (Tr., pp. 297-298).

Bunting Size

Mr. Marchuk said that the bunting visible on the rope in the top photograph in Exhibit 3 is a plastic ribbon-like material, in a slightly darker shade of orange than the rope itself (Tr., pp. 165-166). He explained that the bunting is threaded through the rope, which keeps it in place, even on windy days, and that the ribbons stand out, even in whiteout conditions (Tr., p. 167). The ribbons are folded in half and are approximately four to six inches long on each side (Tr., pp. 92-93 [Cabana], 169 [Marchuk]). Mr. Petrozzi thought they were six inches long and that they were quite typical (Tr., pp. 441-445).

Mr. DiNola said that the rope line was not as visible as it should have been because the ribbon streamers attached to it were too small. He stated that, according to generally accepted practices and procedures in the ski industry, ribbons should hang down 8-12 inches after they are tied to the rope line (Tr., p. 260). Mr. DiNola was not aware of any statute or regulation, however, that requires ribbons to be attached to the rope lines (Tr., p. 288).

Mr. Marchuk and Mr. Petrozzi each have personally installed such ribbons and were not aware of any requirement that the ribbons be eight inches long (Tr., pp. 166, 169 [Marchuk], 444-445 [Petrozzi]). Drawing on that experience, Mr. Petrozzi said that the May 2010 article was inaccurate in its assertion that most ski areas use ribbons that are eight inches long on each side, adding that it was written by a workers' compensation specialist whom he knows (Tr., pp. 444-454). The article itself also includes a disclaimer that it is meant to provide only a general discussion and that readers should seek appropriate professional advice before acting on its recommendations (Tr., p. 470).

Mr. DiNola also has seen bright orange triangular pieces of plastic that resemble sports pennants used instead of ribbons, and he opined that they are more visible than the ribbons shown in Exhibit 3 (top) (Tr., p. 263). He agreed, however, that he was able to see the ribbons in the top photograph of Exhibit 3 and that they do provide an additional visual cue to a skier, "[t]o some extent," as to the existence of the rope line (Tr., pp. 287-288). He further "supposed" that it was "possible" that the movement of those ribbons, even in a gentle breeze, could provide a further visual cue to skiers (Tr., p. 288). Mr. Petrozzi said that he also has seen such pennants, what he called carnival flagging, but that they are not used very often (Tr., pp. 439-441). Mr. Marchuk has never seen little flags used at Whiteface instead of the ribbons (Tr., pp. 167-168).

The Barrier/Array Was Visible From A Distance

At trial, Mr. Casey was unable to identify definitively the scene depicted in either Exhibit 1 or Exhibit 5 as the area where his accident occurred, although he assumed that it was (Tr., pp. 36-38). Other witnesses, however, identified Exhibit 1 as a fair and accurate depiction of the barrier/array on the date of the accident taken from about 70-100 feet downhill, looking back up at it from where the Wilmington and Boreen Trails actually meet. The lollipop poles and discs on top, orange rope lines with bunting on them, and the caution banner are visible in the photograph, although the trees to which the ropes were attached are not shown (Tr., pp. 75, 77 [Hoyt], 89 [Cabana], 140-144, 163 [Marchuk], Ex. 6, pp. 18-19 [Scott], Ex. 6-A at 10:17 [the photograph Mr. Scott is looking at is Exhibit 1 at trial]).[FN3] Mr. Petrozzi said that the lollipop pole in Exhibit 1 conspicuously marked the rope line, which, in his view, was plainly visible to skiers, and should have been seen by Mr. Casey if he had been keeping a proper lookout (Tr., pp. 408-409).

Mr. Scott said that the rope lines, lollipop poles and discs, as well as the caution banner, were plainly visible from his vantage point beyond the Wilmington Trail's intersection with the Boreen Trail, at a distance of 70-80 feet from the barrier/array, where he and Mr. Cabana waited for Claimant (Ex. 6, pp. 15, 23, 41-42, 44, 46-47).

The top photograph in Exhibit 5 (which appears, to the Court's mind, to be very similar, if [*7]not identical, to Exhibit 1), also was taken from below the barrier/array (Tr., pp. 161-162 [Marchuk]). Both photographs show that there is a slight curve, but no blind spot, on the Wilmington Trail above the barrier/array, Mr. Marchuk noting that skiers are clearly visible in the photographs as they descend toward it and are perhaps a football field away (Tr., p. 180; see Exs. 1 & 5). He thought those skiers would have been able to see the caution banner from a couple of hundred yards away (Tr., pp. 220-221). Mr. DiNola had no personal knowledge as to a skier's line of sight, but would not disagree if Mr. Marchuk testified that the caution banner was visible from 120 yards up the trail (Tr., pp. 283-284; see Ex. 1). At first, Mr. Scott also said that the caution banner was visible from several hundred feet away, after making the last turn on the trail (Ex. 6, p. 20). He then amended his testimony, however, to say that the curve in the trail was only 75-100 feet above the caution banner, so that the banner could not be seen until then (Ex. 6, p. 21). Mr. DiNola would only agree that a distance of 73 feet "could be" an adequate distance for a skier who is skiing carefully and defensively to avoid an object in the trail (Tr., p. 291). However, in the trial of another matter, Mr. DiNola answered yes, without qualification, to the same question (Tr., p. 292).

The bottom photograph in Exhibit 5 was taken from 75-100 feet up the trail from the caution banner, looking downhill (Tr., pp. 156-157, 162 [Marchuk]; see pp. 94-95 [Mr. Cabana recognized the caution banner depicted as the one he saw on the date of the accident]). Mr. DiNola said that, if Mr. Scott said that the rope lines were plainly visible from 70-80 feet downhill and beyond the barrier/array, Claimant's expert had no evidence to suggest that they would have been any less visible to a skier uphill from them (Tr., pp. 289-290).

Pop Fencing

Mr. DiNola said that pop fencing was an alternative crowd control measure that would create a baffle to slow skiers and deliver them onto the Boreen Trail (Tr., p. 255). He discussed a barrier/ array from Vermont's Killington ski area which included what he called a "baffled entry" with: two two feet by eight feet go slow banners; an opening behind it through which skiers could proceed; and, finally, another barrier beyond the opening that skiers would have to ski around (Tr., pp. 255-256).

Mr. Petrozzi said that photographs from Mr. DiNola's report, including the Killington example, do not depict pop fences, in his view, and such fences typically are not used to direct skiers. Rather, they illustrate a type of fencing most commonly used to separate spectators from competitors at ski events (Tr., pp. 456-460). Mr. Marchuk similarly described a pop fence as a mesh fence, usually placed as a border along the edges of trails (Tr., pp. 141-142). Mr. Petrozzi also said that pop fences have short poles, about 52 inches high, that are the same height as the fence, and made of durable composite material like ski poles (Tr., p. 455).

Mr. DiNola opined that the Killington configuration is more visible than a rope line (Tr., p. 257), but Mr. Marchuk thought that the barrier/array on the Wilmington Trail was equally visible to skiers as a pop fence (Tr., pp. 141-142). Moreover, Mr. Petrozzi said that the decision to use lollipop poles with discs on top was correct, not only because the Safety in Skiing Code specifically calls for them, but also because their widespread use means there was a reasonable expectation that an approaching skier would recognize their significance (Tr., p. 377).

Moreover, Mr. Marchuk thought a pop fence was not a practical option at this location because: it would sit lower than the barrier/array; it partially would obstruct a skier's view; the bases of a pop fence would be shorter and more easily knocked down than are the lollipop poles; and [*8]people tend to congregate behind pop fences where they may not be visible to other skiers, which could pose its own hazard (Tr., pp. 142, 206, 223-225). Moreover, although they are used at Whiteface, Mr. Cooper has encountered many instances of people running into mesh pop fences and becoming entangled with them, including one case in which a pole pierced a person's leg (Tr., p. 320).

Mr. Petrozzi agreed that the Killington configuration could have been used on the Wilmington Trail (Tr., pp. 459-461). Nevertheless, he did not think it was the preferable choice because pop fences, especially ones erected perpendicular to the general path of skiers, often are harder to maintain in an upright position as skiers often spray snow on them, and ice, snow, and/or snowmaking operations can knock pop fences down (Tr., p. 379). He and Mr. Cooper each also noted that more poles are used in building the frame of a pop fence, so that it takes longer to erect them compared to a rope line attached to a lollipop pole (Tr., pp. 321 [Cooper], 379 [Petrozzi]). Even Mr. DiNola said that pop fencing needs to be removed in order to groom the trail, and then reinstalled again afterwards (Tr., p. 257). Mr. Petrozzi also said that the more numerous poles also compounds the obstacles/challenges to providing a visual cue. Here, Mr. Petrozzi thought that the rope line was the best choice to provide that visual cue (Tr., p. 380). Skier's Responsibility

Mr. DiNola agreed that the Skier's Responsibility Code is part of New York law, and requires skiers to be able to stop and avoid objects that are in front of them (Tr., pp. 312-313).

Claimant said that he has skied at West and Gore Mountains in New York, and Killington and Pico in Vermont, among others (Tr., p. 22). Mr. Petrozzi said that all of those ski areas utilize similar, if not identical types of devices to mark their trails (Tr., p. 366). Because of their widespread use, Mr. Petrozzi said that a skier of Mr. Casey's experience should have been familiar with them and able both to anticipate them and to understand their significance (Tr., p. 367). For example, he noted that the Safety in Skiing Code specifically directs the use of orange lollipop poles to mark obstacles that are less than six feet high, and, thus, they are among the inherent risks of skiing in New York State (Tr., p. 367).

Mr. Petrozzi opined that clause one of the Skier's Responsibility Code requires skiers to keep a proper lookout for other people, as well as obstructions and conditions on the trails, and to control their speed and course at all times so that they can stop or avoid them (Tr., p. 369). Mr. Petrozzi said that, in this instance, he believed that Mr. Casey did not see the rope line so that, instead of slowing down and/or stopping as his companions did, Mr. Casey continued skiing in the same manner and at the same speed, looking down at his skis as he turned (Tr., pp. 369-370, 372-373).

Mr. Petrozzi opined that the barrier/array did not constitute a dangerous condition; rather, it was the manner in which Claimant approached it, seeing something bright orange, but failing to slow down, look more carefully, or stop, which created the danger for him (Tr., p. 374). That Mr. Casey had never skied the Wilmington Trail before, in Mr. Petrozzi's view, only underscored that he should have proceeded with care (Tr., p. 375). As for the barrier/array itself, Mr. Petrozzi said that it was open, obvious, visible, marked, so that it could be seen and perceived by any skier keeping a proper lookout, proceeding at an appropriate speed, and using the appropriate level of caution (Tr., pp. 375-376).

Mr. Petrozzi said that clause six of the Skier's Responsibility Code, in part, requires skiers to observe all posted signs and warnings (Tr., p. 370). He noted that the barrier/array included: (1) the orange banner, which he said was about 1 foot wide by 5 feet tall, with the word "CAUTION" [*9]printed in black letters; and (2) the blaze orange lollipop poles with blaze orange discs on top, used to hold up the rope line (Tr., pp. 370-371). The rope lines also were colored orange. Mr. Petrozzi further said Mr. Casey saw something and, even if he did not know what it was, the bright orange color should have connoted to him a potential caution, hazard, or danger, and the need to keep a more intentional and purposeful lookout as he approached that area (Tr., pp. 371-372). Mr. Petrozzi opined that Claimant was not skiing with reasonable care for his own safety as he approached the area where his accident occurred (Tr., p. 372).

Speed/Manner of Skiing

Mr. Petrozzi also opined that speed was one cause of Claimant's accident. In that regard, he did not dispute Mr. Casey's and Mr. Scott's testimony that Claimant did not approach the barrier/array at a high rate of speed, and he agreed that he could not say how fast Claimant was traveling just prior to the collision and that speed was not mentioned in the Whiteface Mountain Injury Report (Tr., pp. 382, 391; see Ex. 10). Rather, he argued that Claimant was going too fast under the circumstances for him to appreciate and act upon the caution provided, something that both of his companions were able to do (Tr., pp. 382, 391). Moreover, to Mr. Petrozzi's knowledge, no other skier collided with the rope line on the date of Claimant's accident (Tr., p. 382).

He said that a second cause of Claimant's accident was the manner in which he was skiing, looking down at his skis and the terrain, then looking up as he completed his turn. Mr. Casey did not alter his course, even as he proceeded toward the area where he saw something, until he collided with the rope (Tr., pp. 382-383).

LAW

As a ski area operator, Defendant is subject to certain duties imposed by the Safety in Skiing Code. The statutory duties are not exclusive, however, and common-law principles must be applied to accidents at ski areas unless a particular hazardous condition is specifically addressed by the Safety in Skiing Code (GOL §18-107; see Dailey v Labrador Dev. Corp., 136 AD3d 1380, 1381 [4th Dept 2016]; Sytner v State of New York, 223 AD2d 140, 143 [3d Dept 1996]; Dalomba v State of New York, UID No. 2016-032-146 [Ct Cl, Hard, J., Sep. 22, 2016]).

As relevant to this Claim, among the duties the Safety in Skiing Code imposes upon ski area operators are to conspicuously mark, either with crossed poles, or blaze orange poles topped with circular blaze orange-colored markers that are a minimum of six feet above the snow level (i.e., lollipop poles), the location of manmade obstructions that are within the borders of a trail, when the top of such obstructions are less than six feet above the snow level (see GOL § 18-103[4]; 12 NYCRR §§ 54.5[d], 54.6, Table I). At the same time, skiers have the duty to: (1) remain in constant control of their speed and course at all times so as to avoid contact with plainly visible or clearly marked obstacles (GOL § 18-105[4]; 12 NYCRR § 54.4[b][4]); (2) to familiarize themselves with all information posted by ski area operators concerning man-made obstructions that have been conspicuously marked (GOL §§18-103[4], 18-105[5]; 12 NYCRR § 54.4[b][5]; and (3) to abide by the directions of the ski area operator (12 NYCRR § 54.4[b][3]).

As previously noted, however, the Safety in Skiing Code supplements, but does not abolish, the applicability of the common-law analysis to accidents at ski areas (Sytner v State of New York, supra at 144; Dalomba v State of New York, supra; Hyland v State of New York, UID No. 2001-007-118 [Ct Cl, Bell, J., Aug. 8, 2001]). Thus, "when the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of [*10]New York, 62 NY2d 506, 511 [1984]). Accordingly, while the State is not an insurer of the safety of visitors to its premises (see McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law duty to maintain its facilities "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir. 1972], cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]).

To establish a prima facie case of negligence in a premises liability claim asserting that injury resulted from a dangerous condition, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept 2011]).

The existence of a dangerous condition is generally a question of fact that may hinge upon the facts and circumstances peculiar to each case (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]; Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]).

"A person who participates in downhill skiing assumes the usual risks inherent in that activity (i.e., those that are known, apparent or reasonably foreseeable)," although the individual skill and experience of the skier informs any determination of the risks that have been assumed (Clauss v Bush, 79 AD3d 1397, 1398 [3d Dept 2010]; see Morgan v State of New York, 90 NY2d 471, 485-486 [1997]; Maddox v City of New York, 66 NY2d 270, 278 [1985]; de Lacy v Catamount Dev. Corp., 302 AD2d 735, 736 [3d Dept 2003]). "Participants will not, however, be deemed to have assumed risks that result from a [D]efendant 'creat[ing] a dangerous condition over and above the usual dangers that are inherent in the sport' " (Finn v Barbone, 83 AD3d 1365, 1365 [3d Dept 2011], quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]; see Morgan v State of New York, 90 NY2d 471, 485 [1997]; Sytner v State of New York, 223 AD2d 140, 144 [3d Dept 1996]).

Among the risks inherent to the sport of downhill skiing is the danger of personal injury caused by man-made objects that are incidental to the operation and maintenance of a ski facility (GOL §18-101). "If a downhill recreational skier voluntarily participates in the activity, the duty of the ski facility is limited 'to mak[ing] the conditions as safe as they appeared to be and if the risks of the activity were fully comprehended or perfectly obvious, [the skier] consented to them and the [facility] performed its duty' " (Hyland v State of New York, 300 AD2d 794, 794-795 [3d Dept 2002], quoting Giordano v Shanty Hollow Corp., 209 AD2d 760, 760 [3d Dept 1994], lv denied 85 NY2d 802 [1995], citing Turcotte v Fell, 68 NY2d 432, 439 [1986]).

It is not necessary that the injured claimant foresee the exact manner in which his or her injury occurred (Tremblay v West Experience, 296 AD2d 780, 781 [3d Dept 2002]). Likewise, the mere fact that the defendant could feasibly have provided safer conditions is irrelevant where the risk is open and obvious to the participant (Simoneau v State of New York, 248 AD2d 865, 866 [3d Dept 1998]; see Martin v State of New York, 64 AD3d 62, 64 [3d Dept 2009], lv denied 13 NY3d 706 [2009]).

Moreover, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]); Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds 86 NY2d 744 [1995]; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43 [Ct Cl 2002], affd 307 AD2d 605 [3d Dept 2003]).

Finally, "[i]n determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).

DISCUSSION

Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant failed to establish his Claim by a preponderance of the credible evidence.

As a preliminary matter, the Court notes that the testimony of the witnesses was not equally persuasive. While Mr. Casey was sincere, in a number of places his testimony was, to the Court's mind, tentative, uncertain, and imprecise. Indeed, he could not even identify the place where his accident occurred, although he assumed it was the location mentioned by the other witnesses.

As for Mr. Cabana, his testimony at trial differed from his earlier EBT and written statement regarding two important questions of distance at issue in this Claim: the distance at which he first was able to see the rope line; and the distance from the caution banner to the gap/opening. In each case, Mr. Cabana's trial testimony was crafted to be more favorable to Claimant's argument. While the discrepancies were noted at trial, no satisfactory explanation was provided to account for them. The Court resolves the discrepancies in favor of the earlier EBT testimony and written statement. Mr. Scott, likewise, initially said that the caution banner was visible from several hundred feet away but then pared that back to 75-100 feet. He did try to explain his revision, but the Court is not persuaded and relies upon his first estimate.

By contrast, Defendant's employees testified sincerely and provided concrete and persuasive explanations for the decisions they took on behalf of ORDA. The same applies to Mr. Petrozzi's testimony, which the Court generally finds more credit-worthy than that of Mr. DiNola. By contrast, Mr. DiNola offered a litany of proposals in lieu of the actions taken by ORDA which he deemed to be safer alternative means. In many cases, Defendant disputed, persuasively in the Court's opinion, that the proposed alternatives were, in fact, safer or preferable. In any event, Claimant failed to establish, to the Court's satisfaction, that any statute, regulation, common-law precedent, or generally accepted industry standard, commands that they be adopted or implemented by ORDA.

The Court concludes that ORDA owed a duty of care to Claimant, both under the Safety in Skiing Code, as well as at common law, which it met. The caution banner and the barrier/array were open, obvious, visible, and marked conspicuously in orange, the color prescribed for lollipop poles and discs. The Court further finds that Defendant met its duty to maintain its facilities, including the Wilmington Trail and the barrier/array, in a reasonably safe condition under the prevailing circumstances.

Claimant failed to establish that the trail, the caution banner, or the barrier/array, created a dangerous condition, or that they were not as safe as they appeared to be for skiers, or that the [*11]barrier/array unreasonably increased the risk of injury to skiers. Moreover, the Court finds that the substantial factor in Claimant's accident was his failure to remain in sufficient control to avoid contact with the rope line resulting from his failure to see what was there to be seen, or to alter his course in any way after he saw "something" on the trail that should have prompted him to proceed with greater caution. Finally, the Court determines that Claimant assumed the risk that the barrier/array, including lollipop poles and rope lines, might be on the trail, as one inherent to the sport of downhill skiing. While the configuration of the barrier/array might have been unique, the presence of such man-made obstacles on the ski trail was not, and this barrier/array did not elevate the risks above those usual in the sport so as to constitute a dangerous condition. Mr. Casey possessed adequate skill as a skier that he should have been able to navigate successfully the barrier/array, just as his companions did, and, indeed, as other skiers did, since there is no evidence that anyone else ever collided with the rope lines in the same manner during the decade that the Wilmington Trail had been open.

Specifically, Claimant did not show that the caution banner was out of place. Mr. DiNola opined that it should have been farther uphill from the rope lines and the gap/opening, but, tellingly, failed to say what the correct distance would be. By contrast, Mr. Petrozzi explained why it should be placed no more than30 feet uphill, the State employees thought it should be about 20-30 feet away, and the composite testimony of the witnesses present on the date of the accident said that it was about 15 feet up the hill. Similarly, Mr. DiNola said that the banner itself was too small without establishing why a four foot square banner was required instead of the one foot by five feet one that was used, other than that it was bigger.

Claimant's contention that other warnings should have been given instead of the caution banner fails for several reasons. Again, no standard was established that would mandate another warning be given. In addition, the failure to warn skiers of an impending trail merger or slow skiing zone was not a substantial factor in Mr. Casey's accident. He was injured because he skied into the rope line, not because he was inadequately apprised of what lay ahead. Moreover, the Court credits Mr. Petrozzi's opinion that the caution sign was the correct one to place at the barrier/array both because it was meant to alert skiers that the trail was being funneled into the gap/opening, and because the hazards posed by the merger and slow skiing zone did not arise until after the barrier/array was passed. Finally, as a practical matter, Mr. Casey failed to recognize, read, and heed, the caution banner. No reason was offered to suggest why he would have reacted any differently had the alternative warnings proposed by Mr. DiNola been given instead.

Mr. DiNola's opinion that it was not good practice to attach the rope lines to trees is belied by his statement, elsewhere, that, where ropes are anchored to trees, the "common practice" is to use breakaway clips. That implies that the practice is widespread enough to have a common standard and actually appears to support more Mr. Petrozzi's position that almost every ski area in his experience attaches ropes to trees. Mr. Marchuk forthrightly agreed that lollipop poles would be preferable, but both he and Mr. Petrozzi explained why that is not always possible if the goal of making sure that the rope lines are secure and not easily knocked over is to be achieved. Moreover, the uncontradicted testimony of the ORDA employees was that skiers seldom strike the rope lines so that the risk posed was low. No one, including Mr. DiNola, could cite to any similar collisions involving the barrier/array in the ten years between the date the Wilmington Trail opened and the date of Claimant's accident. Thus, the Court concludes that Claimant failed to show that the use of [*12]trees to anchor rope lines was not good practice.

As for the aforementioned breakaway clips, they may well be perfectly acceptable, as Mr. DiNola posits, but that does not establish that law, regulation, or generally accepted industry standards, mandates their use. Moreover, the State witnesses all testified to the unsuccessful history of breakaway clips at Whiteface, the danger it would pose to skiers if they failed to work as intended, and the fact that the lollipop poles themselves served a breakaway function because they either pulled out of the ground, as happened here, or else the bamboo would snap. In this regard, the Court rejects Mr. DiNola's assertion that it is not an issue in this case whether or not the pole came out of the ground. Likewise, the Court's confidence in his opinions was not bolstered by his grudging admission that he only supposed it was a good thing that the lollipop pole did come out of the ground.

The Court finds Claimant's argument that other colors should have been used for the lollipop poles, discs, and ropes to be without merit. Blaze orange is the color for lollipop poles and discs mandated by the Safety in Skiing Code. No evidence was presented to explain why orange should not suffice for ropes as well. The Court finds Claimant's recourse to an insurance article, which was not offered or admitted into evidence, to be unavailing and wholly insufficient to establish that common industry practice mandates the use of some other color(s). Moreover, Mr. Petrozzi explained that he knew the author and explained to the Court's satisfaction that her views were not authoritative as to such matters.

Claimant failed to establish that a sagging rope line was a substantial factor in causing his accident. He did not trip over, or get caught in, the rope. Mr. Casey is six feet tall and was coming out of a crouch when the rope struck him across the mouth, from which the Court determines that the rope line was at a sufficient height above the ground that it should have been visible to Claimant, as it was to his companions and, indeed, all other skiers on that trail that day.

The State witnesses credibly explained that any increase in visibility obtained by the use of additional lollipop poles would be offset by increased rigidity in the structure and more severe injuries to those skiers who collided with the rope line.

Claimant failed to show that the bunting attached to the rope lines violated generally accepted practices, either as to size or shape. Again, the Court gives little weight to the insurance article referenced at trial.

It was not established that pop fencing was required, nor was it shown that the barrier/array used at Killington constituted an industry standard. Moreover, Defendant's witnesses proffered concrete reasons why it would be impractical to use a pop fence given its low profile, the need for additional, rigid poles, the risk that people might congregate, unseen and unseeable, behind such barriers, and the risk that a pop fence might be knocked down more easily. Moreover, as Mr. Petrozzi noted, the widespread use of lollipop poles, owing to their inclusion in the Safety in Skiing Code, created a reasonable expectation that an approaching skier would recognize the need to proceed with caution.

The Court concludes that the barrier/array was not a dangerous condition, but rather one that was open, obvious, visible, and marked. The Court further finds that it was visible at a distance, as was the caution banner, most likely from several hundred feet up the hill, after the skiers rounded the slight curve in the hillside. Without question, it could be seen at a distance of 70-80 feet. The record demonstrates that the caution banner and barrier/array are plainly visible from that shorter [*13]distance. Mr. DiNola said, at another trial, that, at 73 feet, someone skiing carefully and defensively had adequate distance to avoid an object in the trail. The Court finds that the same holds true in this case and that Mr. Casey had sufficient time to avoid the barrier/array.

For the reasons enumerated by Mr. Petrozzi, the Court further concludes that Mr. Casey failed to keep a proper lookout and was not skiing with reasonable care for his own safety. As a result, he failed to observe the posted warning provided by the caution banner. He failed to alter his course and/or speed upon seeing "something" on the trail in front of him. It was incumbent upon Claimant to slow down, look more carefully, or stop. He did none of those things. Instead, he continued skiing, heedlessly in the Court's opinion, in the same traverse fashion as he had been doing. He was not skiing very fast, but his failure to exercise caution was exacerbated by his failure to see what was there to be seen, in this case the caution banner and the barrier/array. It was those failures that were the substantial factors in his accident. The Court finds that there was no reason why an intermediate skier like Mr. Casey should not have been able to recognize, and respond appropriately, to the caution banner and the barrier/array. Both of his companions were skiers of roughly the same skill level and were able to successfully navigate the caution banner, avoid the rope lines, ski between the lollipop poles and through the gap/opening and down to the bottom of the Wilmington Trail without incident.

The Court further determines that the barrier/array, and specifically the lollipop poles, and rope lines are incidental to the operation and maintenance of Whiteface. The barrier/array may have been a unique configuration, to reflect the circumstances of its location, but the need for such barriers/arrays was not, and the risk that such obstacles may be encountered on ski trails is inherent to the sport of downhill skiing. Because the Court concludes that the barrier/array was as safe as it appeared to be, and the risks of the activity should have been perfectly clear to a skier of Mr. Casey's ability, it further concludes that Mr. Casey consented to them.

Finally, Claimant asserts that ski resorts should not be absolved from liability merely because they relied on generally accepted industry practices, if safer alternatives are available. Rather than permitting them to provide the bare minimum in safety, Claimant argues that ski resorts should be required to employ the safest means for all types of skiers and not allowed to complacently follow generally accepted practices (see Claimants' Post-Trial Brief, p. 20). That simply misstates the legal standard. Defendant is not required to make conditions as safe as they can be, but only as safe as they appear to be. For the reasons discussed above, Defendant met its legal duty in this Claim in its operation and maintenance of Whiteface, the Wilmington Trail, the caution banner, and the barrier/array.

CONCLUSION

The Court concludes that Claimant failed to establish, by a preponderance of the credible evidence, his Claim that Defendant breached any duty with respect owed to him under the Safety in Skiing Code, or at common law.

The Claim is, therefore, dismissed.

All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.

The Chief Clerk is directed to enter Judgment accordingly.

Footnotes

Footnote 1:As the claim of Janice Casey is derivative in nature, all references to Claimant will be to David F. Casey, unless otherwise indicated.

Footnote 2:At trial, the Court reserved its decision on Defendant's objection to Mr. LeBlanc's statement as to how far away the caution banner should be placed uphill from the barrier/array. While the witness used the word guess, from the context of his answer, it is clear, to the Court's mind, that he was providing an approximation. The objection is overruled.

Footnote 3:Mr. Marchuk, who was the second responder to the accident scene and brought the first aid sled, returned several hours later, at about 1:00 p.m. to take photographs, including those in Exhibits 1, 3, and 5 (Tr., pp. 137-138, 141, 156, 164, 170).