Summary
In Schorpp v. Oak Mountain, LLC, 143 A.D.3d 1136, 39 N.Y.S.3d 296 (App. Div. 2016), the New York Supreme Court, Appellate Division reversed the trial court's denial of summary judgment in a negligence cause of action.
Summary of this case from Kibler v. Blue Knob Recreation, Inc.Opinion
10-20-2016
Ron W. SCHORPP et al., Respondents, v. OAK MOUNTAIN, LLC, et al., Appellants.
Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellants. Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M. Califano of counsel), for respondents.
Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellants.
Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M. Califano of counsel), for respondents.
Before: PETERS, P.J., McCARTHY, GARRY, CLARK and AARONS, JJ.
AARONS, J.Appeal from an order of the Supreme Court (Sise, J.), entered November 5, 2015 in Fulton County, which denied defendants' motion for summary judgment dismissing the complaint.
Plaintiff Ron W. Schorpp, a self-described “expert skier,” was injured while skiing down a trail at defendant Oak Mountain Ski Center (hereinafter Oak Mountain), which is operated by defendant Oak Mountain, LLC in the Village of Speculator, Hamilton County. Schorpp testified that an Oak Mountain employee recommended a black-diamond trail to him. Schorpp and his daughter planned to ski down this trail and meet his wife and other children at a subsequent juncture of trails. Approximately three quarters of the way down the trail, Schorpp skied into a “depression” that was filled with snow. The skis got caught in the depression causing Schorpp to flip over and fall out of his skis. Schorpp, and his wife derivatively, subsequently commenced this negligence action against defendants. Following joinder of issue and discovery, defendants moved for summary judgment. Supreme Court denied the motion and defendants now appeal. We reverse.
Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ; see Martin v. State of New York, 64 A.D.3d 62, 63–64, 878 N.Y.S.2d 823 [2009], lv. denied 13 N.Y.3d 706, 2009 WL 2959683 [2009] ; Youmans v. Maple Ski Ridge, Inc., 53 A.D.3d 957, 958, 862 N.Y.S.2d 626 [2008] ). Regarding downhill skiing, an individual “assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the skiing terrain” (Ruepp v. West Experience, 272 A.D.2d 673, 674, 706 N.Y.S.2d 787 [2000] ; see General Obligations Law § 18–101 ; Hyland v. State of New York, 300 A.D.2d 794, 794–795, 752 N.Y.S.2d 113 [2002], lv. denied 100 N.Y.2d 504, 762 N.Y.S.2d 874, 793 N.E.2d 411 [2003] ; Dicruttalo v. Blaise Enters., 211 A.D.2d 858, 859, 621 N.Y.S.2d 199 [1995] ). The application of the assumption of risk doctrine must be measured “against the background of the skill and experience of the particular plaintiff” (Maddox v. City of New York, 66 N.Y.2d 270, 278, 496 N.Y.S.2d 726, 487 N.E.2d 553 [1985] ; see Sharrow v. New York State Olympic Regional Dev. Auth., 307 A.D.2d 605, 607, 762 N.Y.S.2d 703 [2003] ).
We conclude that defendants satisfied their moving burden by demonstrating that Schorpp assumed the risk of injury associated with downhill skiing (see Jordan v. Maple Ski Ridge, 229 A.D.2d 756, 757, 645 N.Y.S.2d 598 [1996] ). Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope (see Painter v. Peek'N Peak Recreation, 2 A.D.3d 1289, 1289–1290, 769 N.Y.S.2d 678 [2003] ; Ruepp v. West Experience, 272 A.D.2d at 674, 706 N.Y.S.2d 787 ; Giordano v. Shanty
Hollow Corp., 209 A.D.2d 760, 761, 617 N.Y.S.2d 984 [1994], lv. denied 85 N.Y.2d 802, 624 N.Y.S.2d 372, 648 N.E.2d 792 [1995] ; Calabro v. Plattekill Mt. Ski Ctr., 197 A.D.2d 558, 559, 602 N.Y.S.2d 655 [1993], lv. denied 83 N.Y.2d 754, 612 N.Y.S.2d 378, 634 N.E.2d 979 [1994] ). In opposition, plaintiffs failed to raise an issue of fact as to whether defendants concealed or unreasonably increased the risks to which Schorpp was exposed (see Sontag v. Holiday Val., Inc., 38 A.D.3d 1350, 1351, 832 N.Y.S.2d 705 [2007] ; Ruepp v. West Experience, 272 A.D.2d at 674, 706 N.Y.S.2d 787 ). Accordingly, Supreme Court erred in denying defendants' motion for summary judgment.
ORDERED that the order is reversed, on the law, with costs, and motion granted.
PETERS, P.J., McCARTHY, GARRY and CLARK, JJ., concur.