Opinion
# 2016-032-146 Claim No. 120834
09-22-2016
THOMAS DALOMBA v. THE STATE OF NEW YORK and THE NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY
Cellino & Barnes, P.C. By: K. John Wright, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Glenn C. King, Assistant Attorney General, Of Counsel
Synopsis
Case information
| UID: | 2016-032-146 |
| Claimant(s): | THOMAS DALOMBA |
| Claimant short name: | DALOMBA |
| Footnote (claimant name) : | The caption was amended at trial to reflect that claimant is no longer an infant. Therefore his mother, Lori Dalomba, need not maintain the action on his behalf. |
| Defendant(s): | THE 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): | 120834 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Cellino & Barnes, P.C. By: K. John Wright, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Glenn C. King, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | September 22, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim seeks to recover money damages for injuries that claimant sustained in a skiing accident on February 18, 2010 at Whiteface Mountain, a ski resort owned and operated by defendants. Claimant alleges that, while skiing that day, he sustained serious injuries that day, when he collided with a transformer, for which defendant failed to provide adequate notice or warning.
FACTS On February 18, 2010, a clear, cold, and windy day, claimant, then 13 years old, was skiing on Whiteface Mountain with his aunt, uncle, and two brothers. Although he termed himself an intermediate skier, claimant admitted that, prior to the day in question, he had only skied on three prior occasions. On the day of the accident, claimant took the chairlift halfway up the mountain on the "U Valley trail," an intermediate trail, intending to ski down the trail to the Bistro - a restaurant at the resort - where he was to meet his family. Claimant stated that he had not previously skied that route. As claimant was skiing down the trail, wearing a helmet and ski goggles, he approached a portion of the trail labeled a "Slow Skiing Area" as he approached the restaurant and began to slow his speed (Exhibit 6). As he was slowing down, claimant allegedly hit a large patch of ice, which caused him to speed up. He then skied into a metal transformer, which was situated about 10-12 feet away from the Bistro building (Exhibits 2, 3, 6, 7, 10, 12). Exhibit 10-A, as marked by claimant in orange, indicates where he allegedly attempted to stop but hit the ice. He testified that a split second before hitting the transformer, there was a sudden drop of approximately 5-6 feet, causing him to fall backwards and strike the transformer (Exhibit 12). Claimant insisted that the orange lollipop depicted in front of the transformer in Exhibit 10 was not there when he fell. Claimant stated that he did not see any warning signs in front of the transformer or on the flat area around the Bistro, and that there was no fence in front of the transformer, nor was the transformer padded. Ski patrollers attended to him, but claimant testified that he did not tell the ski patroller how the accident happened. Upon cross-examination, claimant admitted that, before he collided with the transformer, he fell 5 to 10 additional times that day.
Exhibits 1-13 were entered into evidence at trial upon stipulation of the parties, the first 12 of which are photographs. Except for Exhibits 4 and 5, which were taken on the day of the accident, the Court is unaware of when the remaining photographs were taken. Accordingly, the Court will utilize these photographs only to the extent that they depict a general image of the landscape of Whiteface Mountain, and will not use them for the purpose of depicting what was present around the transformer or the level of snow on the day of claimant's accident.
A lollipop is a type of warning marker used to warn skiers of potential hazards or trail closures. It is blaze orange in color and is comprised of a pole and a round top marker that is eight inches in diameter (Exhibit 10).
Robert Zande, a volunteer ski patroller at Whiteface Mountain since 1999, testified that he responded to the radio call about an injured skier on February 18, 2010. Zande stated that, when he arrived at the scene, he did not encounter ice, but found claimant lying on the ground in front of the transformer on its left side. Zande recalled seeing the orange lollipop in front of the transformer when he arrived there to assist claimant.
Although the witness went back and forth as to whether the lollipop was sticking straight up or leaning when he arrived at the accident scene, he did not retreat from his position that a lollipop was located by the transformer.
Zande attended to claimant's medical needs, transported him down the mountain via sled to the Medical Services Area, and returned to the accident scene to take photographs. Zande was also responsible for completing the injury report on behalf of Whiteface Mountain.
Zande explained that he took the photographs portrayed in Exhibits 4 and 5 within 15-45 minutes of the accident, and testified that they accurately depict the conditions on Whiteface Mountain that day. The photograph in Exhibit 5, which was taken before the photograph in Exhibit 4, depicts the ski area from further up the mountain and shows a "Slow Skiing Area" sign on the side of the mountain about 100 yards before the accident scene (T: 133, 136). There is no orange lollipop in front of the transformer in this photograph (T: 133-134). Zande noted that two or three "Slow Skiing Area" signs are placed in the area of claimant's accident. Exhibit 4 is a closer frontal view of the transformer and an orange lollipop is situated towards the left side of the front of the transformer. Zande denied placing the lollipop next to the transformer between the taking of photographs depicted in Exhibits 4 and 5. He stated that he had never seen the transformer without the lollipop in front of it and did not recall another accident occurring at this site throughout the years he has been a ski patroller. Zande also noted that the Skier's Code of Responsibility is posted throughout the resort and is printed on each individual's ski ticket.
Christopher Brown testified as an expert witness for claimant. Brown stated that he visited the scene of the accident on January 10, 2015, and described the area where claimant fell as a large open area where several trails meet. The transformer that claimant struck is located about 10 feet from the Bistro, just after a drop-off from a flat, open area where the skiers can put on or take off their skis before entering the restaurant (Exhibits 2, 3). Brown estimated that the dimensions of the transformer were 12 feet by 10 feet by 6 feet. Exhibit 12, photograph 18, depicts the general area where claimant fell. Brown opined that the area around the transformer was skiable terrain because there are no signs or markers near the transformer defining the ski trail, and noted that a ski operator should have provided some definition for the edge of the trail. He defined a "skiable area" as an area where one could ski, make turns, and stop. Brown further testified that the area around the transformer is prone to icing because people stop there to scrape snow off of their skis. He noted that 12 NYCRR 54.5 (d) requires the use of the orange lollipops to warn skiers of potential hazards and that the height of the lollipops must be at a minimum height of six feet above snow level. He testified that the transformer is a man-made obstacle that should have been moved, protected by a fence, a berm, or padding. Brown testified that, in his opinion, the transformer constituted a hazardous condition due to its placement within the skiable terrain, and that the ski operators therefore had a duty to warn skiers of its presence.
Brown holds a Ph.D. in mechanical engineering from the University of Vermont. He is also a licensed professional engineer in that state. He is a member of many professional societies. He has coached skiing and consulted on skiing related designs. He holds various patents and is an author of a multitude of publications (Exhibit 13).
In an effort to controvert Brown's testimony, defendants moved to introduce into evidence a third-party statement contained in the injury report produced by Zande. Claimant objected to the admissibility of the statement and the report as a whole as violative of the hearsay principles set forth in Johnson v Lutz (253 NY 124, 127-129 [1930]). The Court reserved decision and now denies defendants' motion in its entirety. New York courts have long "held that hearsay may play a role in an expert's testimony because the expert may base an opinion on hearsay if it 'is of a kind accepted in the profession as reliable in forming a professional opinion' " (Matter of State of New York v Floyd Y., 22 NY3d 95, 107 [2013], quoting People v Goldstein, 6 NY3d 119, 124 [2005]). As the Court of Appeals recently reiterated, however, the question remains "whether, or under what circumstances, an expert's underlying basis information may be admissible in a civil proceeding, even though it consists of hearsay statements otherwise subject to exclusion" (Matter of State of New York v Floyd Y., 22 NY3d at 107; see Hinlicky v Dreyfuss, 6 NY3d 636, 648 [2006]; People v Goldstein, 6 NY3d at 124). Here, the Court finds that admission of the hearsay statements contained in the injury report would "effectively nullify the hearsay rule by making [an] expert [into] a conduit for hearsay" (People v Goldstein, 6 NY3d at 126). Further, even applying the two-step analysis set forth in Matter of State of New York v Floyd Y., the Court finds that defendants did not establish the minimum requirements of reliability and relevance with respect to the proffered evidence (see id. at 108-110). --------
LAW As ski operators, defendants are subject to certain duties imposed by the Safety in Skiing Code (General Obligations Law § 18-101 et seq.). The statutory duties are not exclusive, however, and common-law principles must be applied unless a particular hazardous condition is specifically addressed by the statute (see Sytner v State of New York, 223 AD2d 140, 143 [3d Dept 1996]). Here, claimant has alleged that defendants breached duties imposed by both the Safety in Skiing Code and the common law.
As relevant here, the General Obligations Law requires ski operators "[t]o post in a location likely to be seen by all skiers signs of such size and color as will enable skiers to have knowledge of their responsibilities" (General Obligations Law § 18-103 [2]). Such responsibilities include, as relevant here, "[n]ot to ski in any area not designated for skiing," "[n]ot to ski beyond their limits or ability to overcome variations in slope, trail configuration and surface or subsurface conditions which may be caused or altered by weather, slope or trail maintenance work by the ski area operator, or skier use," and "[t]o remain in constant control of speed and course at all times while skiing so as to avoid contact with plainly visible or clearly marked obstacles" (General Obligations Law § 18-105 [1], [2], [4]). Further, and of particular relevance here, ski area operators are required "[t]o conspicuously mark . . . the location of such man-made obstructions as, but not limited to, snow-making equipment, electrical outlets, timing equipment, stanchions, pipes, or storage areas that are within the borders of the designated slope or trail, when the top of such obstruction is less than six feet above snow level" (General Obligations Law § 18-103 [4] [emphasis added]). This requirement is reiterated in 12 NYCRR 54.6, which provides that "[s]ki area operators shall conspicuously post and maintain signs, including legends and symbols, in the sizes, colors and locations required by provisions of Table I." Table I includes a closed trail sign described as a white octagon with red border and red cross band over black skier on white sign, the minimum size of which is 12 inches measured vertically.
Notably, GOL article 18 was not intended to abolish the application of the common law duty to warn of dangerous conditions, and "a ski operator is not necessarily relieved of the duty to warn more extensively" (Sytner v State of New York, 223 AD2d at 144). To establish a prima facie case of negligence under the common law, a claimant "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]). In this case, defendants possessed a nondelegable duty to maintain their "property 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" (Basso v Miller, 40 NY2d 233, 241 [1976]; see Davidson v Steel Equities, 138 AD3d 911, 912 [2d Dept 2016]). "Encompassed therein is the duty to warn those lawfully on the premises of potentially dangerous conditions that are not readily observable. Conversely, there generally is no duty to warn of conditions that can be easily recognized or discovered by the normal use of one's senses" (Comeau v Wray, 241 AD2d 602, 603 [3d Dept 1997] [citations omitted]; see Noble v Pound, 5 AD3d 936, 937-938 [3d Dept 2004]). Thus, "[i]n 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]; accord Johnson v State of New York and The New York State Olympic Regional Development Authority, UID No. 2014-039-420 [Ct Cl, Ferreira, J., Aug. 6, 2014]; 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 to the foregoing, 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]). While "[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]), "[v]oluntary participants in the sport of downhill skiing assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and man-made objects that are incidental to the provision or maintenance of a ski facility" (Fabris v Town of Thompson, 192 AD2d 1045, 1046 [3d Dept 1993]; accord Dailey v Labrador Dev. Corp., 136 AD3d 1380, 1381 [4th Dept 2016]).
ANALYSIS
The Court finds that claimant has not established by a preponderance of the credible evidence that defendants breached a duty of care owed to him under either the General Obligations Law or the common law. Initially, the evidence presented by claimant is insufficient to demonstrate that the transformer was located "within the borders of the designated slope or trail" (General Obligations Law § 18-103 [4]; see Weinberger v New York State Olympic Regional Dev. Auth., 133 AD3d 1006, 1007-1008 [3d Dept 2015]). Although the transformer, a man-made object, was less than six feet above snow level, the Court finds, based upon its review of Exhibits 4 and 5, that the transformer was not within the limits of the skiable terrain. According to those photographs - which are the only ones that the Court is certain were taken on the day of the accident - the transformer is set off away from the flat ground that is in front of the Bistro for skiers to utilize before entering or leaving the Bistro. Therefore, contrary to the opinion of claimant's expert, defendants were not required "[t]o conspicuously mark" the presence of the transformer by way of a lollipop or other warning marker (General Obligations Law § 18-103 [4]; see 12 NYCRR 54.5; Weinberger v New York State Olympic Regional Dev. Auth., 133 AD3d at 1007-1008).
However, even if the Court were to find that the transformer was "within the borders of the designated slope or trail" (General Obligations Law § 18-103 [4]), the evidence also indicates that the lollipop was present at the time of the accident and was more than likely knocked down by claimant at the time he hit the transformer. Claimant did not call any witnesses to corroborate his position that the orange lollipop was not there at the time of the accident, and the Court finds his testimony to that effect to be incredible. By contrast, Zande - who presented as forthright, candid and credible - stated that he saw the lollipop near the transformer when he arrived at the scene, although he was unsure whether it had been knocked over. Moreover, the photograph in Exhibit 4 clearly shows a lollipop to the left of the transformer. Accordingly, the Court concludes that defendants did not violate its statutory obligations to claimant under General Obligations Law § 18-103 or 12 NYCRR 54.6.
Further, defendants did not breach its common law "duty to warn [claimant] of potentially dangerous conditions that are not readily observable" (Comeau v Wray, 241 AD2d at 603) . As explained by Zande, Exhibit 5 shows a "Slow Skiing Area" sign located well before the Bistro and the transformer, and Exhibit 4 shows the location of the transformer, off to the side of the flat area around the Bistro with an orange lollipop standing before it. Again, the Court credits Zande's testimony that it was customary at Whiteface Mountain to have the transformer marked at all times. Moreover, the Court finds that the transformer was plainly visible, in an open location, and obvious to skiers, and that claimant should have seen it as he approached the Bistro.
Finally, even if defendants had breached a duty of care to claimant, the Court finds that claimant assumed the risk of the sport by attempting to ski an intermediate trail. Claimant himself admitted that he had only skied three times prior to the date of the accident and stated on cross-examination that he had fallen between 5 and 10 times that day prior to this accident. Further, in light of the foregoing findings of fact, the transformer was not a concealed or unreasonably increased risk, as it was off trail and marked (compare Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d at 608). Accordingly, the Court finds that claimant was skiing on the wrong trail for his ability and lost control of his skiing, and that his inability to ski at the required level for this trail, rather than an action or non-action by defendants, was the sole proximate cause of the accident.
Upon review of all the evidence, including the observation of all witnesses and an assessment of their demeanor, the Court finds that claimant has failed to prove his claim by a preponderance of the credible evidence. The claim is therefore dismissed.
Let judgment be entered accordingly.
September 22, 2016
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims