Opinion
# 2014-039-420 Claim No. 120901
08-06-2014
JAMES M. JOHNSON v. STATE OF NEW YORK and the NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
Carl J. Cochi, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York By: Glenn C. King Assistant Attorney General
Synopsis
Following a bifurcated trial on the issue of liability, the Court finds that claimant has failed to prove his negligence claim against defendant. Claimant offered insufficient credible evidence establishing that the ski lift chair that he was loading was at an improper height, or that defendant's employees were otherwise negligent in monitoring the chairlift or assisting claimant with loading.
Case information
| UID: | 2014-039-420 |
| Claimant(s): | JAMES M. JOHNSON |
| Claimant short name: | JOHNSON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK and the NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120901 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Carl J. Cochi, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Glenn C. King Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 6, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant James M. Johnson filed this claim with the Chief Clerk of the Court of Claims on February 8, 2012. In it, claimant seeks damages arising from injuries he suffered on February 27, 2010 while boarding the Straight Brook quad chairlift at Gore Mountain Ski Center (hereinafter Gore), a ski facility owned by New York State and operated by the New York State Olympic Regional Development Authority (hereinafter ORDA) in North Creek, New York. Specifically, claimant alleges in this claim that he "was boarding the chairlift when he was struck in the right ski boot in the area of the heel and ankle of the right leg by the chairlift device causing his ski to enter the excessive mound of snow in the boarding area with a twisting motion of his leg resulting in severe injury to his right leg" (Claim ¶ 4). Claimant alleges that ORDA was negligent in, among other things, operating the chairlift at an inappropriate angle and height, failing to remove an excessive mound of snow in the boarding area and failing to have an attendant on duty to assist claimant or monitor the chairlift.
A trial on the issue of liability was held on March 5, 2014 at the New York State Court of Claims in Albany, New York. Claimant testified and called three other witnesses: Craig Pugh and Stephen Thompson, who were skiing with claimant on the date of the accident, and Mark DiNola, an expert witness. Claimant also read into the record portions of the deposition testimony of Tamara Bukovinsky, a Gore employee. Defendants called Bukovinsky in their case in chief, as well as two other ORDA employees, Don Townley and Robert Heunemann. The parties offered documentary, photographic and demonstrative evidence, which was received into evidence without objection. The parties also submitted post-trial memoranda on or about May 23, 2014.
At trial, claimant testified that he is an "advanced, expert level" downhill skier and owns a specialty ski, snowboard and bicycle shop (Tr. 8).
References to the trial transcript are delineated herein as (Tr. ___).
At the time of the accident, he had been engaged in downhill skiing for over 40 years. He had skied at Gore "[n]umerous times" and was familiar with the Straight Brook quad lift prior to the accident (Tr. 8). On the morning of February 27, 2010, he was at Gore with a group which met yearly for an "old-timers ski weekend" (Tr. 9). He had arrived at Gore early that morning with two friends, Craig Pugh and Steve Thompson. It "had been snowing for the past few days" and there was "more fresh snow" on the morning of February 27 (Tr. 12).
After changing into ski clothing at the base lodge, claimant, Pugh and Thompson rode the gondola to the top of the mountain. After exiting the gondola, they put on their skis and skied down to the Number 7 chairlift, also known as the Straight Brook chairlift. Claimant was the first to arrive at the lift and waited near the lift for his friends to arrive. It was snowing at that time. When asked whether he saw any person working in the area at that time, claimant testified that he "noticed one of the attendants, one of the lift attendants, there by the control shack. He was shoveling when I arrived" (Tr. 16). Claimant explained that the attendant was shoveling "to the right of the . . . equipment shack or the lift shack" (Tr. 16). Claimant was shown a photograph, claimant's exhibit 2, which he testified was taken about a month after the accident but that fairly and accurately depicted the Straight Brook chairlift loading area. Claimant stated that the area where the attendant was shoveling is depicted near the lower, left-hand corner of the photograph, although "the picture doesn't show it too well" (Tr. 18). Claimant also affirmed that the signs depicted in the photograph were present on the date of his accident, including a sign reading "18 [inch] chair height" (Claimant's Exhibit 2).
Claimant was shown another photograph, claimant's exhibit 8, which he affirmed fairly and accurately depicted the waiting area as it appeared on the date of the accident, even though the photograph was not taken that day. He marked with an arrow the area where he observed the attendant shoveling snow, and a copy of the photograph with claimant's mark was admitted into evidence as claimant's exhibit 8A. Claimant's arrow appears to be pointing to what he identified as the lift or equipment shack. He was shown another photograph, claimant's exhibit 5, and testified that, other than the snow conditions and a person pictured in the photograph, it was a fair and accurate representation of the Straight Brook quad lift area as it appeared at the time of the accident. He identified a box near the loading area as a "kill button, the start and stop button for that person who helps load" (Tr. 36).
Claimant testified that, after his friends arrived at the lift, the group then proceeded to the waiting area and "waited for a chair to go by [them]" (Tr. 15). Claimant explained that the chairs are on a "continual loop, so the chairs come down the hill empty, come around a bull wheel, and the bull wheel brings [chairs] around and in front of the loading area" (Tr. 28). Claimant further explained that, "[t]ypically, you follow a chair, and then the next chair you load on" (Tr. 15). The chair "comes around the bull wheel rather quickly, and it comes up behind you" (Tr. 29). On the day in question, after a chair went by, the three men proceeded to the loading area. According to claimant, normally, there are marks in the snow on the ramp indicating where a person should wait; however, "due to the amount of snow that was received that day, . . . [he did not] remember those lines being there" (Tr. 25). There was "new snow" on the loading area, but "otherwise it appeared to be normal" (Tr. 26).
Claimant stood on the outside, right-hand side of the loading area; Pugh was in the center and Thompson was located to Pugh's left. Claimant had his boots and skis on, and was holding his ski poles in his left hand. He looked over his right shoulder and saw the chair coming toward him. Claimant testified: "As the chair came in, rather than having the chair typically where it is, you know, behind the back of your legs, around the back of the knee area, the chair was running along the terrain, the actual seat of the chair was running along the . . . snow on the ramp" (Tr. 29). This was "[u]nusual and not typical" (Tr. 30). He testified that there was no attendant "present at the chair" at that time (id.). Claimant testified that the chair "hit . . . the three of us standing there, and it hit us low . . . the chair seat was in between the ski and that apparatus which locks the heel" on his boot (id.). He further testified that the chair
drove my ski and binding into the snow, and in doing so, I was unable to pull my ski from the snow and get it out from underneath that chair. So, as the chair proceeded in loading us, and moving along, it continued to push my ski and foot and binding deeper into the snow, causing like a plowing effect. And as it was plowing along, the chair rose over the side of my boot, because it was heading at an angle. As it plowed, it continued to move more at an angle, and then the chair pushed against the side of my ski boot, bending my ski boot, and subsequently breaking my leg and ankle (Tr. 31).
Claimant was shown claimant's exhibit 12, which he identified as an Alpine ski boot that is "comparable" to the one he was wearing at the time of the accident (Tr. 34). Using the boot, claimant demonstrated where the chair struck him. He testified that the chair hit him "right behind the heel piece of the binding in the . . . concave area above the ski and below the heel piece" (Tr. 38). He estimated that the distance between the top of the snow and the location where he was struck was approximately three inches. Claimant affirmed that there was no attendant within six feet to the left or to the right of the loading platform area at the time of his accident (Tr. 30).
After the injury occurred, the chair began to lift, the ski released, claimant sat in the chair and the group proceeded up the hill in the chairlift. According to claimant, the chairlift "traveled quite a distance" before it stopped and the attendant yelled up to claimant and asked him what he wanted to have done with his ski (Tr. 40). Claimant told the attendant to give it to the group on the chair behind them. He testified that, at that time, there was one empty chair behind them and one chair in the loading area with more than one passenger. He estimated that the distance between each chair was about 20 feet. The lift then proceeded to the top of the hill, and they exited the chair, with claimant skiing on one ski. Claimant waited for his ski and then used his poles to push himself to the ski patrol shack; two ski patrollers then took claimant down the mountain in a first aid toboggan. Claimant spoke to a nurse at the first aid station about his accident; he identified claimant's exhibit 10 as the Accident Report which the nurse wrote and which he initialed. In the box provided for the skier's description of the accident, the report states: "As I was getting a chair . . . the chair hit me low - turning the ski sideways [and] my ankle twisted [and the] ski kept pushing [illegible] snow" (Claimant's Exhibit 10).
On cross-examination, claimant affirmed that he had skied 30 to 40 times per year for the past 20 years and had taken the Straight Brook quad chairlift "many times" (Tr. 54). He testified that he did not see an attendant near the entrance of the lift when he arrived there. He acknowledged that he had testified at his deposition that he saw an attendant near the entrance of the lift, and explained that it "depends [on] what you view the . . . entrance as" (Tr. 55). Claimant affirmed that, despite not seeing the waiting line in the snow, he did not ask the individual who was shoveling snow to assist him; he testified that he positioned himself based on his "experience" (Tr. 62). Claimant testified that he did not have time to say anything or to get out of the way of the chair after he noticed that it was dragging along the terrain. He acknowledged that he had testified during his deposition that he was about 20 feet away from the loading area when his chair stopped and that he had asked the attendant to give his ski to the skiers in the chair behind them. He explained that the chair with the skiers in it was "behind, but not directly behind" them (Tr. 67). Claimant affirmed that neither Pugh nor Thompson was injured in the accident. He was shown Defendants' Exhibit B, which he identified as a photograph of the sign at the Straight Brook chairlift, and acknowledged that, underneath the notation "18 [inch] chair height" is a notation indicating "plus or minus two inches" (Tr. 72).
Next, Craig Pugh testified that he has known claimant for 25 years. In 2010, he had been skiing for 50 years and was familiar with Gore and the Straight Brook quad chairlift at issue in this case. Pugh described the weather conditions on February 27, 2010 as "a lot of snow, very heavy snow" (Tr. 78-79). Pugh testified that, when he arrived at the loading area of the chairlift after taking the gondola that morning, he observed "one other worker" who was shoveling snow (Tr. 81). The worker was not shoveling near the platform/boarding area, but was located "on the entrance area of the base building where the operators are" (Tr. 82). Pugh testified: "[i]f I were looking up the hill, he would be behind right vision, out of peripheral vision" (Tr. 81). The loading ramp or platform was "[v]ery snow covered" and he was unable to see any markings designating where to load or where to wait (Tr. 82). With respect to the accident, Pugh recalled that the chair "appeared lower" and made contact with the skiers "just above the ankle" (Tr. 85). He observed claimant's ski "shovel under and sort of spit[] out in a different direction" (Tr. 86). Pugh affirmed that there was no person at the boarding area assisting skiers. According to Pugh, the chairlift they were riding in stopped approximately three chair lengths from the loading point. On cross-examination, Pugh testified that he did not recall telling a State investigator that he saw two attendants at the Straight Brook chairlift that morning, or that an attendant gave claimant's ski to the people in the chair directly behind them. He affirmed that he had spoken with claimant that morning in the courtroom and they had discussed "the distance of the chairs behind us where his ski was given to" (Tr. 93).
Stephen Thompson testified that he has known claimant since the "early '80's" (Tr. 95). He is a downhill skier and is familiar with Gore and the chairlift at issue in this matter. Thompson testified that, on the morning of the accident, he, Pugh and claimant took the gondola and then skied down to the Straight Brook chairlift. He testified that "[t]he lift operator is usually there" but he did not recall exactly where he was on that occasion (Tr. 101). The three men got in line for the lift. Thompson testified that the loading ramp/platform "looked pretty normal at the time" (Tr. 102). It was snowing at the time; he did not remember how deep the snow was. Thompson recalled that the attendant was "off to the side" and was not "right . . . with the chair as it came through to us" (Tr. 105). There is a kill switch right next to where the attendant stands; Thompson testified that the attendant was "not between the control and the chair" (Tr. 106). With respect to the accident, Thompson testified that "a chair came in. I know it came in hard. It hit the back of my boot pretty hard. I, you know, kind of slammed into the seat, and saw [claimant's] ski shoot off to the right" (Tr. 106). He estimated that the lift made contact with the top of his boot, about 15 inches up on his boot. He testified that "they didn't shut the tow down right away" after the accident (Tr. 107). Thompson estimated that their chair was stopped approximately 30 to 40 feet from the loading area. On cross-examination, Thompson stated that he did not recall telling a State investigator that he had seen two attendants at the chairlift that morning, but that there "usually" were two attendants (Tr. 112). He affirmed that other people had used the chairlift before they did that morning and that he had not noticed that those people had any issues loading. He further affirmed that the lift travels for some distance and does not stop immediately after the kill switch is activated.
Claimant's counsel also read into the record portions of the deposition testimony of Tamara Bukovinsky, taken on February 20, 2013. Bukovinsky testified that she has been employed at Gore since 1985. Gore is generally open from the Saturday after Thanksgiving until the week after Easter. Her current job title is lift operations labor supervisor. Her duties include hiring and training employees, including lift attendants. With respect to the training received by lift attendants, Bukovinsky testified that she holds a safety seminar the first Saturday in November. With respect to lift operation safety, she gives a Power Point presentation entitled "Lift Operations. What it's all about . . ." (see Claimant's Exhibit 9). Bukovinsky testified that the lift attendants/operators are instructed to keep the loading and unloading areas clear of obstructions and to maintain the ramp "at an 18, plus/minus 2, inches from top to chair seat" (Tr. 123). The attendant checks the height of the loading ramp with a measuring stick "[a]bout every hour" (Tr. 124). The attendant is also required to shovel and smooth the entire ramp and boarding area. This snow removal can be done while the chairlift is in operation or while it is stopped.
The Court admitted Bukovinsky's entire deposition into evidence as claimant's exhibit 14.
Bukovinsky affirmed that she would expect the attendant on duty to be in a position to stop the lift if it appears that an accident will or has happened. He or she would do this by pushing the stop button; there is also a slow button and an emergency stop button on the control box. There is also a stop button inside the shack "where the other lift attendant is paying attention and watching, as well" (Tr. 129). She affirmed that, if a chair was traveling on the ramp surface as it came into the boarding area, the operator would have a duty to slow or stop the chair if he or she was in a position to do so. Bukovinsky testified that she did not have personal knowledge of the instant accident. According to the log from February 27, 2010, there were three attendants on duty that day; Bukovinsky testified that, as a rule, one person would be inside the lift shack, one person would be "out loading" and a third person would be doing "crowd control . . . [o]ut in the corral area" (Tr. 138-139). She testified that the attendant at the boarding area should be within six feet of the pedestal where the stop button is located.
Claimant's expert witness, Mark DiNola, testified that he has a degree in political science with a minor in economics. From 1984 until 2008, worked for an insurance company where he investigated over 4,000 ski claims during the course of his career, "many hundred" of which were specifically lift related (Tr. 145). DiNola testified that he had reviewed a package of documents provided to him by claimant's counsel, including the pleadings, defendants' responses to claimant's discovery demands, the depositions and the exhibits marked at the depositions. DiNola opined that, if the distance from the bottom of the chairlift to the top of the snow on the boarding area was less than 18 inches, plus or minus two inches, it would be a violation of the operating standards set forth in Gore's manual. He further opined, based upon his experience and training, that, if the chairlift was positioned three inches from the ground, it would be a departure from good loading practice and procedure in the State of New York and would violate New York Code Rule 32, section 32.4.56 (d). He also opined that the departure from good boarding practice was a proximate cause of claimant's injury. Additionally, DiNola testified that it would be a "departure from [Gore's] common practice" if no attendant was within six feet of the pedestal while the lift was operating and opined that this departure was "[a]bsolutely" a proximate cause of the accident (Tr. 158-159). He explained that it is "common and ordinary practice to have lift attendants near where they're supposed to be when passengers are about to board" (Tr. 159). DiNola testified that the Straight Brook lift has 126 chairs and a 2,400-foot-long cable, and that the distance between the chairs on the lift would be approximately 19 feet. Finally, DiNola testified that it was his opinion that claimant did not do anything to cause the accident or his injury; this opinion is based upon the fact that claimant had "1350-plus skier visits over [45 years], and never had a problem before" and that claimant had properly prepared himself to load the chair (Tr. 165). On cross-examination, DiNola affirmed that a chairlift would not stop immediately after the stop button was pushed, but would travel 10 to 25 feet before stopping.
For defendants, Bukovinsky testified that she is currently employed as the lift operations labor supervisor at Gore. Her current job duties include hiring, scheduling and training the lift operators and attendants. She had also previously worked as a lift attendant and lift operator at the Straight Brook quad chair. Bukovinsky was shown defendants' exhibit A, which she identified as the lift operator's daily start-up record, which would have been completed by the lift operator. She testified that the document indicated that, on the day in question, Robert Hildebrandt was the lift operator, who would have been located at the top of the lift, and that Nick Ianteli, Don Townley and Bill Engler were the lift attendants. At that particular chair, one attendant would be standing at the "load here" area, one attendant would be standing at the "wait here" area and one attendant would be inside the lift shack. The person in the shack was "there to oversee" and would have a stop button "right there in front of" him or her (Tr. 216). The document also indicates that Bob Heunemann, a ski patroller, was the first employee to ride the lift that morning. Bukovinsky testified that Heunemann would have inspected the lift that day to make sure that it is safe for the public. The document would have been signed by the operator at the end of the day. It was her understanding that the 18-inch requirement, plus or minus two inches, was "set forth for adaptive equipment for our handicapped skiers" (Tr. 211). The operators and attendants are trained to check the chair height throughout the day. She further testified that a chair would travel between 10 and 25 feet after the stop button has been pushed. It is a gradual slowing down because an immediate stop would "launch everybody out of their chairs" (Tr. 213). On cross-examination, Bukovinsky acknowledged that, if the chair was approximately three inches above the ground, that would be contrary to the 18-inch requirement.
Next, Don Townley testified that he is currently employed by ORDA and, in February 2010, was employed as a lift attendant at Gore. On a normal workday, he would "punch in" at 8:00 A.M. and then would be transported to his station, which, at that time, was the bottom of the Straight Brook quad lift. Once there, he would check the height of the chair and discern whether snow needed to be removed from or added to the ramp to maintain the 18-inch chair height. Every shack, including the Straight Brook shack, has a yardstick or "something with paint on it" for measuring the 18 inches (Tr. 229). Townley explained that the ramp has a red "load here strip" where skiers are supposed to stop in order to be put on the lift (Tr. 231). The "load here strip" is a plastic bar, about six inches wide and about as long as the chair, which gets buried in the snow so that the writing on top is visible. There is also a standard orange traffic cone which reads "load here" and which is placed on the side of the red strip opposite the lift attendant. To measure the chair height, he would stop a chair and then measure from the red strip to the bottom of the chair to make sure it measured 18 inches. Townley testified that, if he arrived at the lift and there was fresh snow on the ground, he would shovel the ramp and also the area "where we work and we walk and everything else too" (Tr. 233). He would not operate the lift with extra snow on the ground. After checking the chair height and shoveling, he would check the switches that stop the lift. He would then "rotate the lift" and send ski patrol up to ride the lift "[t]o make sure everything is safe" (Tr. 235). Townley affirmed that defendants' exhibit A indicated that, on the date of the accident, Bob Heunemann rode the lift at 8:45 A.M.
Townley further testified that, if an accident occurs, one of the attendants hits the slow or stop button. Every day, he would have to stop the lift because someone lost a ski or ski pole; he would not write a report if someone lost a ski or ski pole because it was an "every day occurrence" (Tr. 238). He estimated that the chairs would travel about 10 to 12 feet after the stop button was hit. He testified that, in his time working at Gore, he had never seen a chair coming through the loading area that was only three inches above the ground. On cross-examination, Townley affirmed that he did not have any recollection of the instant accident, or where he was positioned at the time of the accident. He testified, however, that he "would have been near one of the two stop switches. That was my duty. Like I say, as my job, I would have been there" (Tr. 240). He affirmed that, if he had seen a chair coming into the boarding area approximately three inches above the snow level, he would have pressed the stop button. He further affirmed that, in accordance with his duties as a lift attendant, he would grab the chair for the skiers and hold it for them so that it would not hit them at full speed.
Finally, Robert Heunemann testified that he has worked at Gore for 47 years; his current job title is ski patrol. He was shown defendants' exhibit A and affirmed that he opened the lift and was its first rider on February 27, 2010. Opening a lift consisted of first assisting the lift operators in taking care of the ramps or doing other jobs that needed to be done. Then the lift is started and is allowed to run for three or four minutes. Among other things, he "make[s] sure that the chairs have enough clearance when they're going by the ramp" (Tr. 258). Heunemann testified:
"[A]nd then we load, and in the process of loading, we make sure that the ramp is adequate, that we have comfortable loading, that the area is secure. And then as we ride the lift, we inspect the towers, the sheaves on the way up, and then on unloading, we inspect the ramp that we unload, make sure it's a comfortable and safe unload" (Tr. 256).
Ski patrol then inspects the trails and, following that inspection, calls for the lift to be opened. Heunemann testified that defendants' exhibit A reflects that he called for the lift to be opened on the day in question at 8:45 A.M. He affirmed that there had never been a time during his history working as a ski patroller when the chair was only three inches off the ground at the loading area. He stated that he would "never" open a lift if it was dangerous (Tr. 259). On cross-examination, Heunemann acknowledged that he did not have any specific recollection as to anything that he did on February 27, 2010.
"To establish a prima facie case of negligence, the plaintiff is required to demonstrate that the defendant owed a duty to him or her, that the defendant breached that duty and that such breach was a proximate cause of the injuries sustained" (Evarts v Pyro Eng'g, Inc., 117 AD3d 1148, 1150 [3d Dept 2014]; see Savage v Desantis, 56 AD3d 1013, 1014 [3d Dept 2008], lv denied 12 NY3d 709 [2009]). The State, as a landowner, has a 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' " (Miller v State of New York, 62 NY2d 506, 513 [1984], quoting Preston v State of New York, 59 NY2d 997, 998 [1983]; see Covington v State of New York, 54 AD3d 1137, 1137-1138 [3d Dept 2008]). The State, however, "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d at 1137-1138), and "[n]egligence cannot be presumed from the mere happening of an accident" (Mochen v State of New York, 57 AD2d 719, 720 [4th Dept 1977]; see Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]). "In order to establish that the State is liable for a claimant's injuries, there must be proof that the State created a dangerous condition or had actual or constructive notice of a dangerous condition, that it failed to properly act to correct the problem or warn of the danger, and that such failure was a proximate cause of the claimant's injuries" (Dispenza v State of New York, 28 Misc 3d 1205 [A] [Ct Cl 2010]; see Harjes v State of New York, 71 AD3d 1278, 1279 [3d Dept 2010]). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case and is generally a question of fact for the [factfinder]' " (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997], quoting Guerrieri v Summa, 193 AD2d 647, 647 [2d Dept 1993]).
In addition, it is well-settled that "[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)" (Clauss v Bush, 79 AD3d 1397, 1398 [3d Dept 2010]; see Finn v Barbone, 83 AD3d 1365, 1365 [3d Dept 2011]), including "risks associated with the use of a chairlift, when the participant is aware of, appreciates and voluntarily assumes those risks" (de Lacy v Catamount Dev. Corp., 302 AD2d 735, 736 [3d Dept 2003]; see Finn v Barbone, 83 AD3d at 1365). However, "[a] participant in a sporting or recreational activity will not be 'deemed to have assumed concealed or unreasonably increased risks' " (Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607 [3d Dept 2003], quoting Morgan v State of New York, 90 NY2d 471, 485 [1997]). As the Appellate Division, Third Department has observed:
"[T]here is undoubtedly some risk of injury inherent in entering, riding and exiting from a chairlift at a ski resort. However, . . . the [risk] is not of such magnitude as to eliminate all duty of care and thereby insulate the owner from claims of negligent supervision and training of the lift operator or negligent maintenance and operation of the lift itself since such negligence may unduly enhance the level of the risk assumed" (Morgan v Ski Roundtop, 290 AD2d 618, 620 [3d Dept 2002]).
Even so, "where the risks of the activity are fully comprehended or perfectly obvious, the defendant has performed its duty by making conditions as safe as they appear to be" (Toro v New York Racing Assn., Inc., 95 AD3d 999, 1001 [2d Dept 2012], lv denied 19 NY3d 810 [2012]; see Morgan v State of New York, 90 NY2d at 484; Turcotte v Fell, 68 NY2d 432, 439 [1986]). "[T]he critical inquiry is whether that condition is unique, constituting a hazard over and above the usual dangers that are inherent in the sport" (Simoneau v State of New York, 248 AD2d 865, 866 [3d Dept 1998][internal quotation marks omitted]). "Whether a participant is aware of and appreciates a particular risk must 'be assessed against the background of the skill and experience' of the participant" (de Lacy v Catamount Dev. Corp., 302 AD2d at 736, quoting Maddox v City of New York, 66 NY2d 270, 278 [1985]).
Upon application of these principles to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence, and considering the testimony and demeanor of the witnesses, the Court finds that claimant has failed to establish, by a preponderance of the credible evidence, his claim of negligence against defendants.
Initially, to the extent that defendants argue that claimant assumed the risk of injury by participating in the sport of skiing and by using the chairlift, the Court finds that the doctrine of assumption of the risk does not operate to absolve the State of liability in this case. Claimant described himself as an "advanced, expert level" downhill skier who had skied 30 to 40 times per year for the past 20 years (Tr. 8), and testified that he was familiar with Gore and the particular chairlift at issue in this case. However, the Court finds that the condition of the chairlift alleged to have caused claimant's injuries- that the chair was traveling very close to the ground as claimant attempted to load the chair - is a unique condition "constituting a hazard over and above the usual dangers that are inherent in the sport" of skiing (Simoneau v State of New York, 248 AD2d at 866; see Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d at 608-609; compare Bier v New York State Olympic Regional Dev. Auth., UID No. 2009-039-148 [Ct Cl, Ferreira, J., Nov. 12, 2009] ["[b]umping one's head while loading onto a lift chair is not a risk so unforeseeable as to render defendants liable for alleged injuries]"). As such, the Court declines to dismiss the claim on the ground that claimant assumed the risk of his injury.
Defendants raised the defense of assumption of the risk in their answer but did not specifically raise the defense at trial. In his post-trial memorandum, defendants' counsel cites law relevant to the doctrine, but does not specifically argue that the doctrine applies to the facts of this case.
In his post-trial memorandum, claimant argues that Gore employees were negligent by: (1) failing to shovel and smooth the snow in the loading area to maintain the proper 18-inch chair height; and (2) failing to have a lift attendant present at the location of the loading area during the claimant's loading to stop or slow movement of the chair. The Court finds the evidence presented at trial insufficient to establish defendants' liability on either theory.
First, the Court concludes that there is insufficient credible evidence establishing that defendants failed to maintain a proper chair height on its chairlift on the date of the accident. Initially, the Court notes that it did not find claimant to be a particularly credible witness at trial. Claimant's veracity was called into question on cross-examination when he was confronted with portions of his deposition testimony that were inconsistent with his trial testimony. Importantly, the inconsistencies pointed out by defense counsel on cross-examination related to key facts in this case - the presence of an attendant at the lift and the distance of claimant's chair from the loading area when it was stopped by an attendant. Moreover, there is evidence that claimant spoke to Pugh on the morning of trial - before Pugh gave his testimony - with respect to the distance their chair traveled before it was stopped, a factual issue which was raised during claimant's earlier testimony.
The Court finds incredible claimant's self-serving testimony that the chair was "running along the terrain" when it came around the bull wheel and hit the skiers at their heels, approximately three inches above the ground (Tr. 29). The Court finds it implausible that claimant and his two companions would be able to successfully load the chairlift if the chair hit them near their heels. The Court also finds claimant's testimony with respect to how he was injured - specifically his testimony that his right ski was driven into the snow as the chair moved forward - to be confusing and inconsistent with what one would expect to occur as a result of a chair coming into contact with the heel of a person's ski boot. The Court notes that it received no specific evidence that there was excessive snow, or a mound of snow, in front of claimant's skis as he was loading. The Court further notes that Pugh and Thompson both testified that they saw claimant's right ski "shoot off to the right" or "shovel under and . . . spit[] out" (Tr. 86, 107). In the Court's view, a more plausible explanation for claimant's injury would be that claimant made an error in loading the chair.
The Court accords little weight to DiNola's opinion that claimant did not do anything to cause or contribute to his injuries. His testimony on this point was speculative and was based only upon his reading of claimant's deposition and his assessment of claimant's experience as a skier.
Claimant's testimony with respect to the height of the chair is not supported by any credible, corroborating evidence. Claimant offered no photographs of the chairlift taken on the date of his accident, and it is undisputed that no other skiers - including the two men who were boarding with claimant at the time of his injury - were injured on the chairlift on that day. Additionally, the Court received no proof that prior accidents had occurred involving chairs dragging along the ground and striking skiers as they loaded either the Straight Brook chairlift, or any chairlift at Gore. Moreover, Thompson's testimony contradicted claimant's testimony on this point; as noted above, Thompson testified that the chairlift made contact with his boot about 15 inches from the ground. The Court finds that Thompson's testimony is a more credible account of the approximate height of the chair at the time of the accident and that any deviation from Gore's operating procedures with respect to chair height was de minimus.
To be sure, Pugh testified that the chair "appeared lower" and made contact with the skiers "just above the ankle" (Tr. 85). However, the Court accords no weight to Pugh's testimony, as his credibility was seriously called into question during the trial. Specifically, Pugh, who has known claimant for 25 years, admitted to speaking with claimant on the morning of trial with respect to a disputed factual issue in this matter before he gave his testimony.
Furthermore, the Court found the testimony of defendants' employees - Bukovinsky, Townley and Heunemann - to be forthright, candid and credible. This testimony, as well as the lift operator's daily start-up record, established that the chairlift was inspected - and Gore employees ensured that the chair was a proper height - on the morning of the accident before it was opened to the public. The testimony also established that the employees would not have permitted the chairlift to run if the chairs were skimming the surface of the snow. Based upon the foregoing, the Court finds that claimant has failed to prove that defendants were negligent with respect to the height of the chair on its chairlift on the date of the accident.
The Court likewise finds the proof insufficient with respect to claimant's allegation that defendants were negligent in failing to have an attendant on duty in the loading area to assist claimant or monitor the chairlift. Given the lack of credible proof that the chair's height was improper, the Court discerns no breach of duty by defendants' employees with respect to their failure to notice any problem and stop or slow the chair before claimant boarded.
Inasmuch as claimant asserts that defendants' employees were otherwise negligent in monitoring the chairlift or failing to assist claimant, a preponderance of the credible evidence does not support this assertion. Defendants' evidence established that three lift attendants were on duty at the Straight Brook quad chairlift on the date of the accident. Claimant, Pugh and Thompson all acknowledged that there was at least one attendant in the area of the chairlift at the time of the accident, and the credible evidence before the Court suggests that a lift attendant was also located in the lift shack at that time. Although a lift attendant may not have been standing within six feet of the stop button located in the boarding area, and it appears that there may not have been a lift attendant in the loading platform area physically assisting riders in loading the chairlift at the time of the accident, it is undisputed that, after claimant lost his ski, an attendant stopped the chairlift after claimant's chair had traveled between 20 to 40 feet. It is also undisputed that the chairlift travels some distance - up to 25 feet - after the kill button is activated. This evidence demonstrates that the attendant or attendants were paying attention to the loading process and promptly responded to the incident. This appears to be all that is required by Gore's internal operating manual and the version of Part 32 of the Industrial Code (hereinafter Rule 32) that was in effect at the time of the accident. Specifically, Gore's manual requires only that lift attendants pay attention and "[b]e prepared to SLOW or STOP the lift" (Claimant's Exhibit 9, at 19). In addition, Rule 32 required only that lift attendants, among other things, "advise and assist passengers, as required," "maintain surveillance of his/her area of jurisdiction" and "stop the aerial lift immediately" if he or she observes an unusual or improper occurrence (12 NYCRR [former 32-4.56 (c), (d)]). Based upon this evidence, the Court finds that defendants fulfilled its duty to claimant with respect to its monitoring the chairlift or assisting claimant on the date in question.
The Court notes that none of the three skiers testified that they did not see a lift attendant inside the lift shack at the time they loaded the chairlift.
Rule 32 governs the operation and maintenance of ski tows and lifts and is intended to "require reasonable and proper guarding against personal injuries to employees and the public in the use and operation of ski tows and other passenger tramways" (12 NYCRR [former 32-1.3 (a)]). Effective May 5, 2010, Rule 32 was repealed and new provisions were issued, effective May 5, 2010; this decision refers to the version of Rule 32 that was in effect at the time of claimant's accident.
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Furthermore, even assuming that defendants were negligent with respect to the presence - or lack thereof - of a lift attendant at the loading area at the time of the accident, claimant has not established that any ascribed negligence of defendants was a proximate cause of his accident. As discussed above, there is insufficient credible proof that the chair was proceeding through the loading area at an improper or dangerous height. Thus, it would be entirely speculative for the Court to hold that the failure of defendants to have a lift attendant present in the loading platform was a proximate cause of the accident.
In sum, the Court is cognizant of claimant's testimony that he suffered a serious injury as a result of this accident. However, the Court is unable to conclude, on this record, that the State is liable for claimant's injuries. As noted above, "[n]egligence cannot be presumed from the mere happening of an accident" (Mochen v State of New York, 57 AD2d at 720).
Based upon the foregoing, the Court concludes that claimant has not proven his claim by a preponderance of the credible evidence, and claim No. 120901 is dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied. The Clerk of the Court is directed to enter judgment accordingly.
August 6, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims