By Carla Varriale, of Havkins, Rosenfeld, Ritzert & Varriale
New York’s Appellate Division, First Department overturned a summary judgment decision previously granted to ski resort defendants in a case involving an injured infant plaintiff. The facts are straightforward: infant plaintiff collided with a metal snow machine pole. The Appellate Division, First Department’s decision was unanimous.
Plaintiffs alleged that defendants were negligent because they failed to pad a metal snow machine pole and infant plaintiff collided with it. Plaintiffs argued that infant plaintiff did not assume the risk of colliding with the same while skiing at the resort. The Appellate Division, First Department agreed, holding that the scope of the risks that could be assumed included risks relating to “other people using the facilities” and risks associated with “man-made objects that are incidental to the provision or maintenance of a ski facility” (as set forth in New York’s General Obligations Law Sections 18-101 and 18-106 ,which pertain to the duties of ski area operators, aka “the Ski Statute”).
The Appellate Division, First Department noted that an individual does not assume unreasonably increased risks. Here, plaintiffs demonstrated that the unpadded pole (if located on the ski trail or in an area where skiing was permitted) could support a finding that defendants could be found to have failed to maintain their property in a reasonably safe manner. Defendants’ common law duties were implicated because the inadequate padding of the pole was not specifically addressed by the Ski Statute (although a closer review of Section 18-103 is not quite so black and white, especially with regard to the duty to mark or to pad objects on the slopes) Thus, there was no basis to conclude that the unpadded pole was off the trail or did not need to be padded as a matter of law and summary judgment should have been denied.
The Appellate Division, First Department’s reading of the Ski Statute may be too strict, but it will need to be addressed by another Appellate Division (and then, if there is a conflict among the Appellate Division, it could go to the Court of Appeals).
The opinion can be found at http://www.courts.state.ny.us/reporter/3dseries/2018/2018_06794.htm
