Opinion
99-CV-906
March 17, 2003
WILLIAM J. DREYER, ESQ., DREYER BOYAJAIN, LLP, Albany, NY, of Counsel for Plaintiffs
JAMES J. CALLAHAN, ESQ., CHESNEY MURPHY, LLP, Baldwin, NY, of Counsel for Defendant
MEMORANDUM DECISION AND ORDER
BACKGROUND
In this diversity proceeding, plaintiffs, residents of New Jersey, bring this action against Ski Windham Operating Corp. seeking compensatory damages for personal injuries sustained by Richard Lubow while skiing due to the negligent information given to him concerning the condition of the trail he was about to ski. The employee allegedly advised Richard that the trail was in good condition when, in fact, a lower portion of the trail contained a bald spot. He alleges that while skiing the trail, his skis encountered the bald spot, he lost his balance, fell and then slid into an unpadded lift tower causing him severe bodily injuries. Defendant asserts that running into bare spots on a ski trail is a risk of downhill skiing and that Richard Lubow assumed that risk. Furthermore, before skiing the trail in question, Richard Lubow signed one or more agreements releasing defendant and its employees, agents and servants from any liability for any injuries or damages incurred by Richard Lubow while skiing at defendant's facility. Defendant further asserts that there is no medical proof that plaintiffs injuries were exacerbated by any actions of the ski patrol who came to his assistance after he was injured.
This court sitting in a diversity case must apply state substantive law and federal procedural law. Eire R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.2d 1188 (1938). Currently before the court are two motions for summary judgment pursuant to Rule 56 of the Fed.R.Civ.P. Defendant moves for summary judgment dismissing the complaint, and plaintiff s cross motion for partial summary judgment on the issue of liability and dismissing plaintiffs affirmative defenses.
DISCUSSION
Plaintiff, Richard Lubow, was an expert skier with thirty years of experience at the time of his accident. He skied all classes of trails and had participated in approximately ten ski races during his skiing career. He was a 1996-97 season pass holder at Windham, and had skied there about ten times prior to his accident on January 5, 1997. Windham's printed season pass application that Richard Lubow signed contained an extensive warning to skiers of the risks inherent in skiing and each applicant had to acknowledge and agree to assume these risks. He had participated in two NASTAR slalom races at Windham prior to the one in which he was injured. NASTAR slalom races are a Ski Magazine program which are usually conducted on a daily basis. A pacesetter runs the slalom course first each day and establishes the par time for running the course. Recreational skiers then attempt to meet or better this time. Skiers wishing to compete sign a release and pay a fee to the NASTAR attendant at the top of the race course. Each skier then receives a number and makes a timed run down the slalom course. After finishing their run, the skiers all receive NASTAR medals from the finish line attendant. NASTAR races are very popular and are conducted at a great number of ski areas throughout the country.
On the day in question, Richard Lubow states that he and his eldest son, L. J. Lubow, arrived at the Windham ski area about 11:30 a.m., and checked the trails that were open. The temperature was in the 40s and it had rained earlier in the day. They then took a ski lift to the top of the mountain and skied down to the NASTAR race course that was located in a roped off area on a portion of the ski trail. Richard Lubow completed and signed the required daily release form required by NASTAR, and paid the start attendant the fees for skiing the race course.
There is a large NASTAR sign mounted above the start shack entryway entitled, NASTAR RACE COURSE — USER RESPONSIBILITY AND RISKS , it states in pertinent part, that EACH COMPETITOR MUST VISUALLY AND PHYSICALLY THE RACE COURSE AND THE ADJACENT AREA BEFORE USING THE COURSE. Plaintiff alleges that he ask the NASTAR attendant if he could ski along the side of the course to inspect it before making his race run. The attendant denied this request saying it was necessary because the course was in good shape.
L. J. skied first down the slalom course without incident. Plaintiff raced next and had no difficulty with the course until he passed the next to last poles and saw that the last poles were farther apart than he had anticipated and he would have to make a sharp right turn to pass it and then a sharp left turn to cross the finish line. He made the right turn, but as he started his left hand turn to the finish line, he encountered a one to two foot brown bare spot area that had thin snow cover, loose debris and rocks. When his skis came in contact with the brown area, plaintiff was thrown back on the tail of his skis but did not sit down on them.
He completed his left hand and crossed the finish line in turn in this position. He then attempted to set the ski edges to a so called hockey stop but was unsuccessful. He then tried to slow down by going over on his left side, but continued to slide going under a red mesh rope attached to 4-by-4 wooden posts that surrounded a ski lift tower and finally collided skis first with the unpadded cement and steel base of the lift tower. The collision caused severe back and other injuries to plaintiff which he claims were aggravated when his back was arched by a ski patrol member who lifted him by his waistband when he was being placed upon a backboard. Plaintiff s injuries required extensive medical treatment and caused a permanent disabling effect upon him, depriving him of his family's companionship and causing him financial loss.
Anthony Savasta, (Savasta") a former ski instructor, racer and ski patrol member, is employedby the defendant. He was an acquaintance of Richard Lubow and his son L. J. Sevasta was the NASTAR coordinator at the time Richard Lubow was injured, and an eye witness to the accident. He states that NASTAR races are giant slaloms modified for recreational skiers, and designed to be set up on fairly easy terrain so that skiers of all abilities can compete. NASTAR used the same course everyday at Windham, but Savasta would change the placement of the course's 14 slalom poles each day. Even though the poles were placed in different locations on the course, they would always be the same distance apart.
Savasta skied the slalom course shortly before 11:00 a.m. on the day of plaintiff s accident just before it was opened to the public and did not observe any bare spots in it. During races, Savasta was located in the finish shack where he operated the race timing equipment, calculated what medals the skiers would win and presented them to the racers, at the end of the race course. From his position he had an almost complete view of the race course except the starting platform. He also could plainly see the entire sequence of events in Richard Dubow's accident.
Savasta observed Richard Dubow's race and noted that between the second to last and last gate, he laid down on the back of his skis. This maneuver is called "squeezing the tails of the skis and does two things; it gets a little extra out of the skies and if the skier lifts the tips of the skis high enough, they will break the finish line timing beam before the skier's body and make the time slightly faster. He was not surprised by plaintiffs squeezing the tails action because he did it every time Savanta saw him race. After plaintiff crossed the finish line, Savanta saw him trying to unsuccessfully slow down, and, thereafter, crash into one of the fully padded 4-by-4 wooden posts that surrounded the ski lift tower.
Voluntary 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 which are incidental to the provision of maintenance of the ski facility. Naeawieckiv. State of New York, 150A.D.2d 147, 149, 545 N.Y.S.2d 954 (3d Dept 1989).(NY General Obligations Law § 18-01). However, awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the skill and experience of the particular plaintiff. Dillard v. Little League Baseball, 55 A.D.2d 477, 480, 390 N.Y.S.2d 735 (4th Dept. 1977). "[T]he assumption of risk to be implied from participation in a sport with awareness of the risk is generally a question of fact for the jury, and "dismissal of a complaint as a matter of law is warranted [only] when, on the evidentiary materials before the court, no fact issue remains for decision by the trier of the facts." Maddox v. City of New York, 66 N.Y.2d 270, 279, 496 N.Y.S.2d 726 (1985).
RichardLubow's voluntary participation clearly speaks to an implied assumption, which is simply a factor relevant in the assessment of culpable conduct. Whether Richard Lubow, who was injured while skiing at defendant's ski resort, has assumed the risk of injury is a factual issue for jury determination. Among other factual disputes for jury consideration in this case are: did Defendant's actions comply with the duties of ski area operators set forth in N.Y. General Obligations Law § 18-103; whether Richard Lubow should have relied upon the NAST AR attendant's pre-race statement concerning the condition of the race course's condition or should have insisted that he be permitted to inspect the course before racing as required by the NASTAR sign in the start shack; whether the race course and finish area were properly set up; whether the alleged bare spot on the race course was an inherent risk of skiing, and, did contact with the alleged bare spot or Richard Lubow's use of a ski racing finish line technique cause him to be thrown backward on his skis just before the slalom race finish line; did he hit a wooden post or a steel and concrete lift tower; were these objects properly padded or were they located outside of skiable terrain and not required to be padded; and, whether the actions of the emergency personnel at the accident scene effected the severity of his injuries.
Summary judgment dismissing the complaint in this action is clearly unwarranted. The case is replete with conflicting evidence and varying inferences that could be drawn therefrom. Plaintiff has raised issues of fact as to whether the events leading up to, and causing his injuries and emergency medical treatment were known apparent or reasonably foreseeable consequences of downhill skiing.
Plaintiffs cross motion for partial summary judgment striking defendant's affirmative defenses will not be granted. Motions to strike are not favored, and not ordinarily granted unless the language in the pleadings at issue both has no possible relation to the controversy and is clearly prejudicial. Litzerman v. Spiegel. Inc., 493 F. Supp. 1029, 1031 (N.D. Ill. 1980). Before a motion to strike can be granted, the court must instead "be convinced that there are no questions of fact, that any questions of law are clear and not in dispute, and that under no set of circumstances could the defense succeed." Systems Corp. v. American Telephone Telegraph Co., 60 F.R.D. 692, 694 (S.D.N.Y. 1973). Therefore, "to the extent assertions that a labeled, `defenses' put into issue relevant and substantial legal factual questions, they are "sufficient" and may survive a motion to strike even if they might not totally bar the plaintiffs claim. Donovanv.Robbins, 99 F.R.D. 593, 596 (N.D. Ill. 1983). A motion to strike will ordinarily be denied where the allegations under attack are of such a character that their sufficiency should not be determined summarily, but should be decided only after a hearing or decision on the merits. Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939).
Accordingly, defendant's motion for summary judgment dismissing the complaint is DENIED, and plaintiffs partial summary judgment motion to strike defendant's affirmative defenses is DENIED.
IT IS SO ORDERED.