Christopher C. v South Slope Dev. Corp.

[*1] Christopher C. v South Slope Dev. Corp. 2020 NY Slip Op 51614(U) Decided on August 21, 2020 Supreme Court, Onondaga County DelConte, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2020
Supreme Court, Onondaga County

Christopher C. and Katherine C., Individually and as Parents and Natural Guardians of ALC, an Infant, Plaintiffs,

against

South Slope Development Corporation, Defendant.



2016EF1493



Edward J. Smith, III, Esq., of Smith, Sovik, Kendrick & Sugnet, P.C. for Plaintiffs

Matthew J. Kelly, Esq., of Roemer Wallens Gold & Mineaux LLP for Defendant
Scott J. DelConte, J.

This negligence action arises out of a skiing accident. Plaintiff ALC, then a minor, violently collided with a service building after skiing over a ridge and down a precipitous drop. The parties dispute whether the hazardous ridge and drop were marked at the time of the accident. Discovery is complete, and Defendant South Slope Development Corporation moves for summary judgment on the ground that the hazard, whether marked or unmarked, was open and obvious, and that ALC assumed the risk that resulted in her injuries. For the reasons set forth below, Defendant's motion for summary judgment is DENIED.

[*2]I.

Defendant South Slope Development owns and operates the Song Mountain ski resort in Tully, New York. On January 15, 2016, 14-year old ALC went skiing for the first time, joined by her father and friends. After a free one-hour lesson, ALC and her father were advised by Song Mountain ski instructor Kurt Lavin that she should not attempt any trails, other than the beginner rated "Bunny Bowl," until she had further skiing instruction. Nonetheless, after skiing two other beginner rated trails several times, ALC joined her friends on an intermediate rated trail — the Stormy Weather trail — later that afternoon.

A permanent elevated building — which houses the controls for the Bunny Bowl trail lift, and known as the Gunshy lift — is located in the mid-section of the Stormy Weather trail, in a median near the trail's junction with the Bunny Bowl. The Gunshy lift — which is eight-feet wide, 12-feet long, and 12-feet high, and constructed on four concrete pillars — is outside the bounds of all of the resort's groomed trails.

ALC, accompanied by her friends, skied the Stormy Weather trail once successfully, uneventfully passing and observing the obvious Gunshy lift building. On her second pass, just before 5:00 p.m., ALC traversed the upper section of the Stormy Weather trail without incident. However, as she approached the trail's junction with the Bunny Bowl, just uphill of the Gunshy lift, ALC skied towards, and then over, a man-made ridge, which propelled her down a precipitous drop and directly into one of the Gunshy lift's unpadded concrete support pillars.

II.

"It is beyond debate that there is inherent risk of injury to participants in downhill skiing" (Morgan v Ski Roundtop, Inc., 290 AD2d 618, 620 [3d Dept 2002]). The New York State Legislature has codified an extensive, though non-exhaustive, list of these inherent risks in General Obligations Law Section 18-101 et eq., the Safety in Skiing Code, which include the risk of personal injury or death resulting from "variations in terrain or weather conditions; surface or subsurface snow and other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility" (Gen. Obligations Law § 18-101). Because of this, the duty that ski facilities owe to their patrons is limited to their statutory duty to comply with the positive statutory mandates of the Safety in Skiing Code and their common law duty to make "the ski trails as safe as they appear to be" (Dicruttalo v Blaise Enterprises, Inc., 211 AD2d 858, 859 [3d Dept 1995]; General Obligations Law §18-107). To hold the operator of a ski resort to any higher duty would be to cast it as an insurer, which is contrary to fundamental jurisprudence governing recreational activities (see e.g. Nagawiecki v State, 150 AD2d 147, 150 [3d Dept 1989])

In support of its motion for summary judgment, Defendant South Slope Development argues, based upon the expert Affidavit of Mark Petrozzi, that it did not breach its statutory and common law duties because the design, placement and padding of the Gunshy lift building were in accordance with — or exceeded — prevailing industry standards as well as the statutory mandates, and the hazard posed by the lift building was plainly visible and precisely as it appeared to be. Defendant further argues that the proximate cause of the accident was ALC's decision to ski on a trail that was beyond her abilities, and her subsequent failure to maintain [*3]control over her course and speed so as to avoid a plainly visible off-trail structure. Defendant asserts that these risks are inherent in the sport of skiing, and that ALC was aware of, and knowingly and willingly assumed, them (see Bruno v Hunter Mountain Ski Bowl, Inc., 248 AD2d 660 [2d Dept 1998]; see also General Obligations law 18-105[4]).

III.

Defendant South Slope Development's first argument focuses exclusively on the Gunshy lift building itself, without addressing the man-made ridge and steep drop immediately uphill of that building. As alleged in the Plaintiffs' Bill of Particulars, one of the Defendant's acts of negligence was its "fail[ure] to warn skiers of a precipitous and unmarked vertical drop in the trail immediately adjacent to the Gunshy lift and attendant shack using appropriate warning signs and/or barricades such as flags, reflectors, criss-cross ('X') poles, orange fencing and/or 'SLOW' signs." As opined by Plaintiffs' expert, Mark Di Nola, this was a latent hazard, which was not plainly visible to skiers, and should have been conspicuously marked in order to satisfy General Obligations Law § 18-103(6) and Defendant's common law duty to ensure that the ski trails are as safe as they appear to be. Defendant South Slope Development was, by its own admission, aware of this hazard, but alleges in reply that it "satisfied its duty of care to mark the area uphill of the Gunshy lift shack when its ski patrollers placed a row of crossed bamboo poles [and two "SLOW" signs] to alert descending skiers to the presence of both the incline and the lift unloading area" (Reply Memorandum of Law, p. 16).

There is a question of fact, however, as to whether that row of ten crossed bamboo poles and two "SLOW" signs were in place at the time of ALC's accident. While Defendant South Slope Development presented the unequivocal testimony of three ski patrol eyewitnesses that these conspicuous markings were present at the time of that accident, Plaintiffs do not recall seeing them and two non-party witnesses affirmatively testified that they were not present at that time, nor are they visible in a photograph taken earlier that day. The Court's function on a summary judgment motion is issue finding, not issue determination, and this conflicting sworn testimony creates a material question of fact that can only be resolved by a trier of fact (see e.g. Rodriguez v Parkchester South Condominium, Inc., 178 AD2d 231 [1st Dept 1991]). Defendant has, therefore, failed to establish a prima facie entitlement to judgment as a matter of law on the issue of whether it breached its statutory and common law duties to ALC.

Defendant's second argument with respect to proximate cause similarly fails to address the question of fact as to whether or not the ridge and drop off immediately uphill of the Gunshy lift building was conspicuously marked or not. It is, again, by the Defendant's own admission that these conspicuous markings would have been placed above the ridge and drop off to alert skiers to "turn either to the right or left, such that they would ski around and avoid the unloading area of the Gunshy lift and the lift building," rather than ski "directly down that incline." Defendant and Plaintiffs offer conflicting expert opinions — both of which are, to an extent, speculative — as to whether ALC, a novice skier on a trail that was above her skill level, would have been able to avoid the ridge and drop off uphill leading to the Gunshy lift building if it had been conspicuously marked. "It is well established that 'conflicting expert opinions may not be resolved on a motion for summary judgment" (Pittman v Rickard, 295 AD2d 1003, 1004 [4th Dept 2002]).

IV.

Accordingly, it is hereby

ORDERED that Defendant South Slope Development Corporation's motion for summary judgment pursuant to CPLR 3212 is DENIED, and it is further

ORDERED that a pretrial conference in this matter is hereby set to be conducted remotely in the virtual courtroom on Monday, September 14, 2020, at 9:30 a.m. to set a trial date.

Dated: August 21, 2020

HON. SCOTT J. DELCONTE, J.S.C.

ENTER.

PAPERS CONSIDERED:

Notice of Motion, dated January 17, 2020;

Affidavit in Support of Motion for Summary Judgment of Matthew J. Kelly, Esq., sworn to January 17, 2020;

Expert Witness Affidavit in Support of Motion for Summary Judgment of Mark Petrozzi, sworn to November 19, 2019, with Exhibit A, attached;

Affidavit in Support of Motion for Summary Judgment of Robert Allen, sworn to December 12, 2019, with Exhibit A, attached;

Affidavit in Support of Motion for Summary Judgment of Kurt R. Lavin, sworn to January 2, 2020, with Exhibit A, attached;

Affidavit in Support of Motion for Summary Judgment of William Hamilton, sworn to December 16, 2019, with Exhibit A, attached;

Affidavit in Support of Motion for Summary Judgment of Lisa Morgan, sworn to December 18, 2019, with Exhibit A, attached;

Attorney Affirmation of Edward J. Smith, III, Esq., dated June 9, 2020, with Exhibits A through U, attached;

Affirmation of Mark Di Nola, affirmed June 7, 2020;

Reply Affidavit of Matthew J. Kelly, Esq., sworn to June 15, 2020, with Schedule A and [*4]Exhibits A through G, attached;

Reply Affidavit of Peter Harris, sworn to June 12, 2020, with Exhibit A, attached; and

Reply Affidavit of Mark Petrozzi, sworn to June 15, 2020, with Exhibit A, attached.