A New York state appeals court has reversed a lower court, which had found for a snowboarder/defendant in a case where he collided with a skier/plaintiff on the slopes. Specifically, the panel of judges cited questions of fact about whether the defendant was reckless in his activities.
The plaintiff was skiing on a slope in Massachusetts when the incident occurred. After the lawsuit was initiated and discovery completed, the defendant successfully moved for summary judgment, arguing that the plaintiff’s action was barred by the doctrine of primary assumption of risk. The case was heard in New York state where both parties were domiciled.
In its analysis, the appeals court noted that “without evidence of ‘reckless, intentional, or other risk-enhancing conduct not inherent in the activity’ (Lamprecht v Rhinehardt, 8 A.D.3d 448, 449, 778 N.Y.S.2d 310; see Zielinski v Farace, 291 A.D.2d 910, 911, 737 N.Y.S.2d 199; Kaufman v Hunter Mtn. Ski Bowl, 240 A.D.2d 371, 372, 657 N.Y.S.2d 773), a voluntary participant in a sport or recreational activity is deemed to have consented to the risk of injuries that are ‘known, apparent or reasonably foreseeable consequences of the participation’ (Turcotte v Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49; see Morgan v State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421).
“While awareness or appreciation of such risks must be ‘assessed against the background of the skill and experience of the particular plaintiff” (Benitez v New York City Bd. of Educ., 73 N.Y.2d 652, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29; see Turcotte v Fell, supra; Maddox v City of New York, 66 N.Y.2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726),’ [t]he risk of injury caused by another skier is an inherent risk of downhill skiing” (Zielinksi v Farace, supra at 911; see General Obligations Law § 18-101; Kaufman v Hunter Mtn. Ski Bowl, supra at 372).”
It added that the defendant “established prima facie entitlement to summary judgment by demonstrating that he did not engage in any risk-enhancing conduct that was not inherent in the activity of skiing, which caused or contributed to the accident (see Zielinksi v Farace, supra; Kaufman v Hunter Mtn. Ski Bowl, supra; accord Tilson v Russo, 30 A.D.3d 856, 857, 818 N.Y.S.2d 311).
“The burden therefore shifted to the plaintiff to establish that the defendant’s conduct was intentional or reckless, outside of the risks skiers normally assume (see Morgan v State of New York, supra at 485; Turcotte v Fell, supra at 439; Lamprecht v Rhinehardt, supra at 449).
“The distance that the plaintiff was thrown as a result of the impact, and the nature and extent of the injuries incurred, raise at least a question of fact as to whether the defendant’s speed in the vicinity and overall conduct was reckless (see Martin v Luther, 227 A.D.2d 859, 860, 642 N.Y.S.2d 728). On this basis, the defendant’s motion for summary judgment should have been denied.”
Kevin DeMasi v Scott Rogers, etc.; S.Ct.N.Y., App. Div., 2d Dept.; 2005-05721, (Index No. 795/03), 2006 NY Slip Op 8912; 2006 N.Y. App. Div. LEXIS 14375; 11/28/06
Attorneys of Record: (for appellant) Vergilis, Stenger, Roberts & Partners, LLP, Wappingers Falls, N.Y. (Joan F. Garrett of counsel). (for respondent) Kris T. Jackstadt, Albany, N.Y. (Mark P. Donohue of counsel).
