Opinion
# 2011-015-534 Claim No. 116691
01-12-2012
RELYEA v. THE STATE OF NEW YORK
Synopsis
Claimant, injured while skiing at Belleayre Mountain, assumed the risk of injury from collision with pole incidental to operation of ski facility. Case information
UID: 2011-015-534 Claimant(s): JEANETTE RELYEA Claimant short name: RELYEA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116691 Motion number(s): Cross-motion number(s): Judge: FRANCIS T. COLLINS Rusk, Wadlin, Heppner & Martuscello, LLP Claimant's attorney: By: John G. Rusk, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Glenn C. King, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: January 12, 2012 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The claim alleges the claimant, Jeanette Relyea, was injured while skiing at Belleayre Mountain Ski Center on February 9, 2008. A bifurcated trial on the issue of liability was held on July 6, 2011.
The first witness called at trial was Becky Nesel. Ms. Nesel was fourteen years old at the time of trial and a student at Linden Avenue Middle School in Red Hook, New York. Becky testified that she was skiing with the claimant, Jeanette Relyea, at Belleayre Mountain Ski Center on February 9, 2008.
On that date at approximately mid-morning, the witness was skiing with Ms. Relyea on a trail which she described as wide and flat. Her father, Dennis Nesel, had already skied down the trail and was awaiting the claimant and his daughter at a chairlift at the bottom of the trail. Becky testified she was skiing approximately 15 or 20 feet behind the claimant and that both were proceeding at "the pace of a slow bike" (Transcript p. 12). The witness and Ms. Relyea had intended to ski to the left where the trail split into two smaller trails and ski to the chairlift to meet her father. According to the witness the day was cold and cloudy. She described the skiing conditions as "rough powder" (Transcript p. 14).
The witness described the trail she and the claimant were skiing immediately prior to the accident as more crowded than other trails on the mountain due to the fact that several trails merged into the main trail on which they were skiing. As they approached the area where the trail split into two separate trails, one veering to the left and the other to the right, the witness observed snowboarders proceeding from left to right using the area in front of and behind a pole containing a "SLOW" sign, placed at the point where the trail split, as a jump (see Exhibit 8). She and the claimant were intending to ski down the left fork of the trail and, as they approached the point where the trail divided, the witness observed a snowboarder skiing from left to right. As the claimant veered left she collided with the snowboarder and struck the pole depicted in Exhibit 8 and the other photographic exhibits received in evidence. Ms. Nesel testified that the snowboarder's clothing caught on a hook protruding from the pole leaving the snowboarder "kind of hanging from the hook" (Transcript p. 18). After striking the pole, the claimant "slid down the right side, down the hill" (Transcript p. 18). The witness marked Exhibit 21A to indicate the point at which the snowboarder and the claimant collided. She also marked the location where the claimant came to rest following the collision (see Exhibit 21B). After the collision she went to provide the claimant assistance and then proceeded down the right hand trail to the chairlift where her father was waiting.
Becky estimated she was 10 to 15 feet behind the claimant at the time of the collision. She testified that the pole standing where the trail split into two smaller trails was unpadded and unprotected by any fencing, netting or screening. During her prior visits to Belleayre she had observed snowboarders and skiers skiing through and across the area between the "SLOW" sign and a lift tower located behind it as one comes down the main trail.
On cross-examination the witness testified that skiers and snowboarders utilizing the area between the "SLOW" sign and lift tower would ski under a rope in order to access the area.
Claimant next called Dennis Nesel who testified that he was employed by Clear Channel Radio as a marketing executive at the time of the incident at issue herein.
Mr. Nesel testified that he arrived at Belleayre Mountain at 8:00 a.m. on February 9, 2008 and began setting up for a radio contest his employer was sponsoring that day. At some point that morning the claimant and Becky Nesel went skiing. Once contest preparations were complete, the witness and the marketing director at Belleayre met claimant and Becky on the slopes. According to the witness, the claimant had no physical limitations which might negatively affect her skiing. She had not been drinking or consuming drugs and he observed no problems with her skis or bindings. Mr. Nesel described himself as well as the claimant as intermediate skiers and stated that he had skied at Belleayre "every other weekend for nine years" (Transcript p. 33). He then identified Exhibit 21 as depicting the point where a main trail at Belleayre splits into two smaller trails leading to the Super Chief chairlift. The witness was skiing ahead of the claimant and skied down the left trail at the point where the main trail split. He described this area by stating "generally, there are more people here as they're getting ready to get down to the lift . . . basically in this area is where people pretty much hang out . . . more than any other spot on the trail" (Transcript p. 34). The trail above the area where the trail splits is generally flat and wide and he described conditions that day as "great" (Transcript p. 34). At the point where the trail splits, one trail leads downhill to the right while another leads up and to the left. The topography at that location creates what the witness described as a ledge which he has observed being used by skiers and snowboarders as a jump. According to the witness, skiers and snowboarders using the ledge as a jump "actually hit the pole, or come very close to it, or they glance off the pole" (Transcript p. 35). In this regard the witness testified that Exhibit 10 depicts the marks left on the pole by skiers and snowboarders glancing off it as they jump. Exhibit 5, a photograph taken by the witness in May 2008, depicts the pole and a measuring tape indicating the pole is approximately 6 inches wide. Exhibits 9 and 6 are photographs depicting the pole as well as a hook protruding from its side. As shown in Exhibit 6, the witness determined using a measuring tape that the hook was located approximately five feet above ground level.
Mr. Nesel testified that he was waiting in line at the Super Chief chairlift when his daughter Becky advised him the claimant had been injured. At that point he removed his skis and ran up the hill where he found the claimant lying at the point indicated on Exhibit 21C. Claimant complained that her leg "felt funny" and stated she was afraid to move. The claimant was removed from the ski slope by toboggan and was later transported by the witness to Northern Dutchess Hospital in Rhinebeck, New York.
On cross-examination, Mr. Nesel testified that on prior occasions at Belleayre he had observed snowboarders using the area immediately surrounding the pole, depicted in Exhibit 21, as a jump. He agreed that the area between the pole and the ski lift tower was not a groomed portion of the slope.
On redirect examination the witness testified that despite the fact that the area between the pole and ski lift tower is ungroomed, he has in the past observed people skiing and snowboarding in the area, both in front of and behind the pole. On re-cross-examination, Mr. Nesel agreed that skiers and snowboarders utilizing the area between the pole and the lift tower were doing so "off the groomed surface" (Transcript p. 45).
The next witness called at trial was Richard Parrish, a volunteer ski patroller at Belleayre Mountain. Mr. Parrish identified Exhibit 16 as an accident report form he prepared after responding to the claimant's accident on February 9, 2008. The report indicates that the witness arrived on scene, on the Ashokan Trail at the entrance to lift 6, at 10:31 a.m. He testified that Exhibit 21 does not accurately depict the contour of the area where the claimant's accident occurred in that, on the date of the accident, the snow on the ground rendered the height differential between the left and right trails less severe than it appears in the photograph. He then marked the location where he first observed the claimant (Exhibit 21D). According to the witness, Ashokan Trail is rated an "easiest" trail.
Upon arriving at the scene, Mr. Parrish observed both the claimant and a snowboarder lying on the ground. He did not observe the snowboarder hanging from a hook on the post. Rather, he testified that both the snowboarder and the claimant were "laying in the middle of the trail" (Transcript p. 52). The witness called for assistance and rendered treatment to the claimant as another patroller assisted the snowboarder. Exhibit 16, the accident report, indicates the following in the place provided for a description of the accident: "while skiing, collided with another skier, slid into post, hit knee and head." The witness testified that the claimant provided certain information entered in the report, including the accident description, level of the claimant's skiing ability (intermediate) and the number of times claimant had skied during the 2007-2008 ski season (5 - 10).
Mr. Parrish testified that "a couple trails" merged with Ashokan Trail "a couple hundred yards" uphill from the point where the trail divides (Transcript p. 56). He stated that the area at and above the pole containing the "SLOW" sign is a slow ski area due to congestion and crowded conditions on the trail. In addition, it is not uncommon for skiers on the right side of Ashokan Trail to utilize the left trail, and skiers on the left side of Ashokan to use the right trail, at the point where the trail divides. The witness testified that he had observed skiers and snowboarders utilizing the area immediately in front of the "SLOW" sign as a jump prior to February 9, 2008. In this regard the witness testified " it's not supposed to be, but they do use the mounding there to jump off, but it's not a designated jump area" (Transcript p. 59). He denied having observed individuals making contact with the pole during the course of utilizing the area around the pole as a jump. On the day of the claimant's accident there was no screening or barrier to prevent a skier or snowboarder from coming into contact with the pole. Nor was the pole padded. The witness testified to his belief that the lift tower depicted in Exhibit 21 was not padded on the day of claimant's accident. He confirmed that he has "occasionally" observed individuals skiing and snowboarding in the area between the pole and the chairlift tower. In addition, he has observed markings in the snow in that area indicating the presence of snowboarders and skiers (Transcript p. 61).
Finally, the witness testified that upon responding to the claimant's accident he found her lying on the ground complaining of pain in her left leg. The witness splinted her leg and transported her by toboggan off the mountain to the lower first aid room where her leg was re-splinted. She was thereafter taken by private vehicle to Northern Dutchess Hospital.
On cross-examination the witness testified that during the years he had worked at Belleayre as a member of the ski patrol, he had never responded to an accident at the particular site where claimant's accident occurred. He indicated that skiers or snowboarders utilizing the area were doing so "off the groomed surface of the trail" (Transcript p. 69). Ski patrollers at Belleayre are authorized to instruct patrons not to use ungroomed surfaces and can either mark their tickets or, depending on the severity of the infraction, take the individuals ticket and thereby suspend their privileges.
On re-direct-examination, Mr. Parrish testified that there is nothing to prevent individuals skiing down the right side of Ashokan Trail from entering the area surrounding the pole and lift tower. During the time he has been a member of the Belleayre ski patrol the witness has never removed a skier from the slopes for skiing in the area between the pole and lift tower.
The claimant next called Joseph Strauss who testified that in 2008 he was the Ski Patrol Director at Belleayre Mountain. Mr. Strauss is currently the Assistant Superintendent at Belleayre. After describing his duties during the time that he was Ski Patrol Director, the witness testified that the pole the claimant allegedly struck after colliding with a snowboarder was installed in conjunction with a 1999 trail expansion project at Belleayre. Exhibit 20 is a topographical map depicting the area of the expansion. Mr. Strauss testified that Exhibit 20 does not address the placement of the pole at issue herein. He then identified Exhibit 15 as a Belleayre Mountain trail map. The witness testified that the trail map depicts four trails merging into the Ashokan Trail in the area above the location of the pole depicted in Exhibit 21. He agreed that the area depicted in the Exhibit is a designated slow ski area due to the high volume of traffic and congestion in the area. As a result, a "SLOW" sign was installed "to slow people down, be aware" (Transcript p. 79). In addition to the issue of congestion, the location shown in Exhibit 21 was designated a slow ski location due to the cross-pattern potentially created as a result of the split in the trail which occurred there. He agreed that it was not uncommon for individuals to ski from the right side of Ashokan Trail to the left branch, or from the left side of the trail to the right branch, at the point where the trail divided.
Exhibit 15 is the Belleayre Trail Map for the 2009-2010 ski season and labels Ashokan Trail above the Super Chief chairlift as a blue square or more difficult trail.
Mr. Strauss testified that the pole installed where the Ashokan Trail divided has never been padded or otherwise protected through the use of tires, hay or netting. However, lift tower three, located behind the pole as one approaches coming downhill on Ashokan Trail, is padded. He estimated the lift tower is located approximately 25 feet from the nearest ski trail and 35-40 feet from the pole containing the "SLOW" sign. He agreed that padding was installed, in part, due to a recognition that patrons were skiing in the area between the pole and the lift tower with sufficient frequency to become a safety concern. He further estimated the cost of padding lift tower three at $150.00. He stated that similar padding is available for structures such as the pole installed at the point where the Ashokan Trail divided at an approximate cost of $70.00. Installation would require approximately five minutes.
The witness agreed that Exhibit 10 depicts marks on the pole made by skiers and snowboarders "bunking" off of the pole during jumps at that location (Transcript p. 84). In describing "bunking" he stated "when they come down the hill, they actually jump and they hit their skis or board against it" (Transcript p. 84). He disagreed that the contours of the area surrounding the pole constituted a jump. Rather, he described it as "a change of pitch where people do go off of it" (Transcript p. 85). He next reviewed Exhibit 8 which is a photograph taken from behind the pole from the perspective of one looking up Ashokan Trail. He agreed that the photograph shows marks in the snow where individuals have cut across the left fork of Ashokan Trail into and across the area immediately in front of the pole. He admitted he has observed individuals skiing in the same direction at the same location on previous occasions. Referring next to Exhibit 21, he testified that in addition to the "SLOW" sign, the pole at issue also has attached to it two ropes which, in turn, are connected to a series of poles running along the right side, as one travels down the left fork of Ashokan Trail. In addition, a hook has been attached to the post at a height of approximately five feet.
The witness agreed that he is the individual who decided to install the post and selected its location. He was aware at the time that the post was to be installed in a slow ski area and consulted with "other people on the mountain", but not an engineer or other expert, in deciding where to install the pole (Transcript p. 90). When asked whether he could have done something to protect skiers from the pole he responded "it doesn't fall in the guidelines to protect that pole" (Transcript p. 90). He acknowledged that a pad could have been installed in approximately five minutes and that hay, netting or other devices were available to prevent skiers and snowboarders from coming into contact with the pole. When asked whether a skier striking the pole could potentially be exposed to "serious physical injury" he responded "can be" (Transcript p. 91). In Mr. Strauss' view, however, Article 18 of the General Obligations Law did not require padding or other protection for the pole. In this regard, he stated " I believe it's uh, anything a height of six feet or under has to be marked with a hazard pole or everybody knows that there's something there" (Transcript p. 92). With regard to the hook protruding from the pole at a height of approximately five feet, he indicated that such items are not required to be marked unless they are "in the uphill adjacent of oncoming skiers" (Transcript p. 93). Since the hook installed on the pole did not fit this criteria, it faced across the trail, it did not in his opinion require marking.
On cross-examination the witness reiterated his prior testimony that the location of the pole containing the "SLOW" sign (and others in the immediate vicinity) is not indicated on Exhibit 20, the topographical map showing the areas included in the 1999 expansion of Belleayre. He stated that the purpose of installing the poles in the location selected was "to define the edge of the trail from - to keep people on the trail" (Transcript p. 98). He testified that Ashokan Trail is designated an intermediate trail and has a grade of approximately 9 degrees. He also testified that the location where Ashokan Trail divides is not considered an "intersection" (Transcript p. 98).
Mr. Strauss stated that the purpose of installing a hook on the pole containing the "SLOW" sign was to provide a point of attachment for a rope used to "close that area off" (Transcript p. 99). According to the witness "every evening we close that area off" (Transcript p. 99). He testified that at no time was the top of the pole less than six feet above snow level. With regard to the lift tower shown in Exhibit 21, Mr. Strauss testified that the tower is padded "because people go in that ski area, which is a closed area. And we pad it because of the protruding galvanized ladder pointing uphill" (Transcript p. 100). Generally lift towers located in non-skiing areas "that people do not poach into" are unpadded (Transcript p. 100). The ski tower depicted on Exhibit 21, which is located in a non-skiing area, is padded "because people frequently go in there and we, we can't stop them from going in there, and they ski in it" (Transcript p. 100). Although skiers and snowboarders also ski in the area immediately surrounding the pole containing the "SLOW" sign and bunk against it, it remained unpadded "just 'cause it doesn't have a protruding part on it" (Transcript p. 100). He then stated that the pole containing the "SLOW" sign has never been marked as a hazard because it "doesn't fall into the category as a hazard . . . it's optional" (Transcript p. 102). Finally, he testified that a search for accident reports involving the pole revealed no such reports on file with Belleayre.
On redirect examination the witness testified that he used the term intersection "loosely" to describe the location of the pole at his examination before trial. In this regard he testified:
"When an intersection is on a ski trail - where a trail is defined where everybody's skiing and people, uh, merge into that. At this particular area, everybody's skiing in one direction and they veer off of that trail" (Transcript p. 105).
With regard to the lift tower located behind the pole as one skis down Ashokan Trail, Mr. Strauss testified the tower was padded in recognition that skiers ski off trail in that location and may come into contact with the tower. He stated that skiers "bunk" off both the pole and the tower. He estimated that for every 100 times a skier or snowboarder bunks against the post "they hit that tower 70 times" (Transcript p. 107). He agreed many more people ski and snowboard in close proximity to the pole than ski and/or snowboard in the area near the padded lift tower.
The claimant, Jeanette Relyea, testified that on February 9, 2008 she was at Belleayre Mountain Ski Center working at an event sponsored by the radio sation where she was an account executive. Her part in the promotion, called "Slope Spies," involved identifying patrons bearing a radio station sticker and awarding them a card which entitled them to a prize. She testified that she arrived at Belleayre at approximately 8:00 a.m. and had completed four runs down the mountain prior to being injured at approximately 10:30 a.m. In fact, on two of the runs the claimant skied through the area where her accident occurred. She described her level of skiing ability as "intermediate" and stated that she had skied at Belleayre approximately four times during the 2007-2008 ski season prior to the date of her accident (Transcript p. 123).
Ms. Relyea described the location depicted in Exhibit 21 as an area where several other trails merge into Ashokan Trail. As a result, the area becomes more crowded and "everybody's very cautious" (Transcript p. 124). She testified that immediately prior to her accident she was skiing on the right side of Ashokan Trail intending to proceed straight, or to the left at the point where the trail splits as shown in Exhibit 21. She was skiing with Becky Nesel, who was behind her, and Dennis Nesel who preceded her down the slope. She estimated her speed immediately prior to the accident as "like a jog, a good jog" (Transcript p. 126). She testified she collided with a snowboarder as she moved from the right side of Ashokan Trail to the left trail at the point where Ashokan splits. The snowboarder came from her left and she did not observe him prior to the time that the collision occurred. Following contact with the snowboarder, Ms. Relyea impacted the pole depicted in Exhibit 21, first with her left knee and then with her head.
Claimant was wearing a helmet at the time she collided with the snowboarder.
Claimant testified that after striking the pole she fell on her right side, looked up and saw the snowboarder who was "stuck on the pole" (Transcript p. 128). She identified the location marked with an "X" and the initials "JR" on Exhibit 1 as the point at which she collided with the snowboarder. The location marked with a "Y" and the initials "JR" on Exhibit 1 represents the point at which the claimant came to rest after striking the pole. Ski patrol personnel arrived within minutes, placed the claimant in a toboggan and transported her to the first aid hut. Thereafter the claimant was taken to Northern Dutchess Hospital.
Ms. Relyea testified that although she had seen individuals skiing in the area between the post bearing a "SLOW" sign and the ski tower depicted in Exhibit 21 on prior occasions at Belleayre, she did not witness such conduct on the date of her accident; although she observed ski tracks consistent with such activity. After reviewing Exhibit 18, Ms. Relyea testified that she has observed individuals utilizing the area immediately in front of the post as a ski jump on prior occasions while skiing at Belleayre, although she had not witnessed skiers or snowboarders "bunking" off of the post.
On cross-examination the claimant testified that she had skied at Belleayre and other ski areas prior to the accident of February 9, 2008 and was well aware of the potential, while skiing, to come into contact with others. She also testified that she did not purchase a ticket on the day of the accident "because it was part of the event" (Transcript p. 136).
The last witness to testify was John Hanst. Mr. Hanst identified himself as a retired recreation engineer currently engaged full time in the reconstruction of accidents involving participants in athletic events. When asked to discuss his experience, he testified that he has been skiing since the late 1940s and was a ski patrolman for several years in New Jersey. He has also worked as a water safety instructor and is a member of his local rescue squad. He estimated he has participated in 300-400 ski litigation investigations.
With regard to the post depicted in Exhibit 21, Mr. Hanst testified that "the post is in a most critical location that is most probably going to be impacted, and doesn't belong there" (Transcript p. 144). By way of analogy he stated that if the post was located on a highway "it would need a divider in front of it to direct the traffic away so they didn't smash into the pole" (Transcript p. 144). He stated that the pole was unnecessary and created a condition where skiers and snowboarders "are going to be immediately want to bunk off it, as they would if they were in the terrain park" (Transcript p. 144-145).
Mr. Hanst testified that in his view the post was located directly within the fall line, stating "that means that, if you fall in several of the wide range above it, you will continue down the fall line. That's the way a person would go, where gravity takes over and your skis aren't directing you. And you're going to hit this pole" (Transcript p. 145). In addition, the location of the post was inappropriate given the merging of several trails into Ashokan Trail which resulted in a large number of skiers in the area. According to the witness, "they clearly installed the pole in the most prominent spot where someone could run into it, or a spot where, had they fallen above it, would be directed right into it" (Transcript p. 146).
He testified that the post served no useful purpose other than serving as a point at which a rope could be attached to close off the trail when the lift is shut down. Rather than using the posts for such purposes, he testified it would be possible to close the trail without the use of ropes by using large divider signs directing skiers away from the area. With regard to the fact that the nearby ski tower, located in a non-skiing area, was padded while the post was not, Mr. Hanst stated that it was more likely that skiers and snowboarders would come into contact with the post than with the ski tower. As a result, in his view "it makes no sense that they would pad the second pole for safety reasons and not protect the first pole" (Transcript p. 151). In his opinion, the post should have been padded. It was also his opinion that had the post been padded, the claimant's injuries would have been mitigated "depending on how hard she hit it and, and how much padding was on it" (Transcript p. 153). According to the witness, "energy absorbing devices of any type would have certainly mitigated her injury, if not prevented it all together" (Transcript p. 153). He described Exhibits 11, 13 and 14 as examples of padding, standard in the industry, used to protect skiers from coming into contact with objects such as the post the claimant allegedly struck at Belleayre on February 9, 2008.
On cross-examination the witness agreed that he references 12 NYCRR 54.4, 54.5 and 54.6, in his expert report. In this regard he testified that in his view the post was within the designated border of the trail although he had no information as to whether it was at any time less than six feet above the snow surface. He agreed it was appropriate that Belleayre had designated the area where the accident occurred as a "slow ski area" (Transcript p. 165). He also recognized that it is possible that the other posts depicted in Exhibit 21 could also be located within the fall line of skiers utilizing Ashokan Trail. According to the witness, he did not have adequate information to conclude that each of the posts should have been padded.
Mr. Hanst testified that applicable regulations (12 NYCRR 54.5) would require the posting of a sign on Ashokan Trail, above the point where the trail splits, indicating the presence of an intersection. In his view, the location depicted in Exhibit 21 is, in fact, an intersection stating "if that's not an intersection, I'd like to know what is an intersection" (Transcript p. 169). He cited 12 NYCRR 54.6 to support his conclusion. The witness concluded his testimony by confirming that he was unable to locate reports of prior accidents occurring at the location shown in Exhibit 21.
The claimant rested at the conclusion of Mr. Hanst's testimony. The defendant moved to dismiss for failure to establish a prima facie case of negligence. The Court reserved on the motion.
Defendant argues in its post-trial brief that claimant assumed the risks which normally inhere in the sport of downhill skiing, including the risk of collision with another skier and the unpadded pole that was placed at the fork in the trail.
With the enactment of the comparative negligence statute (CPLR article 14), primary assumption of risk came to be viewed as a measure of the defendant's duty of care rather than an absolute defense based upon a claimant's conduct (Turcotte v Fell, 68 NY2d 432, 438 [1986]; Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395 [2010]). Viewed in this light, the critical inquiry in determining if primary assumption of risk applies to bar recovery is whether the sporting venue fulfilled its "duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" (Turcotte v Fell, 68 NY2d at 439). While a claimant's knowledge and experience plays a role in the determination, "inherency is the sine qua non" (Morgan v State of New York, 90 NY2d 471, 484 [1997]). The Court of Appeals has therefore made clear that "in assessing whether a defendant has violated a duty of care . . . the applicable standard should include whether the conditions caused by the defendants' negligence are 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport' " (Id. at 485, quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]). The doctrine applies not only to "any facet of the activity inherent in it [but] to any open and obvious condition of the place where it is carried on" (Maddox v City of New York, 66 NY2d 270 [1985] [quotation marks and citation omitted]; see also Trevett v City of Little Falls, 6 NY3d 884 [2006]). While both knowledge of the injury-producing condition and an appreciation of the danger are required, the Court of Appeals made clear in Maddox that "[i]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" (Id. at 278; see also Ziegelmeyer v United States Olympic Comm., 7 NY3d 893 [2006]; Stevens v Central School Dist. No. 1 of Town of Ramapo, 21 NY2d 780 [1968]).
The Court finds significant parallels between the instant matter and the facts at issue in Hyland v State of New York (300 AD2d 794 [2002]). There, an advanced intermediate skier encountered a bare spot which caused him to lose control and slide into a wooden fence. The Appellate Division, Third Department affirmed dismissal of that portion of the claim asserting liability based upon the existence of the bare spot finding that the claimant who "skied one or two runs before the accident and, thus had an opportunity to become familiar with the general conditions . . . assumed the risk of injury from the bare spot" (Id. at 795). The Appellate Division went on, however, to modify the decision of the Court of Claims by finding no questions of fact precluding summary judgment as to that part of the claim asserting liability arising from the claimant's contact with the wooden fence. In this regard, the Court found that the testimony and photographic evidence established "that the fence was a man-made object incidental to the provision and maintenance" of a ski facility (Hyland v State of New York, 300 AD2d at 796). Finally, the Court in Hyland found the defendant in that case had no duty to pad the wooden fence "which was clearly a boundary fence not 'within the confines of the ski trail' itself" (quoting Basilone v Burch Hill Operations, 199 AD2d 779, 780 [1993]).
In this case too, the claimant, an intermediate skier, had twice skied Ashokan Trail prior to her accident and had the opportunity to become aware of the existence of the pole, which was open and obvious and not in any way latent or concealed (Roberts v Ski Roundtop, 212 AD2d 768 [1995]). In addition, she testified that she was aware of the potential for coming into contact with other skiers, and that she had observed other patrons using the area immediately in front of the pole as a jump on prior visits to Belleayre. Under such circumstances, the Court finds the claimant assumed the risk of colliding with the snowboarder because the risk of injury arising from a collision with "other persons using the facility" is inherent in the sport of skiing (General Obligations § 18-101; DeAngelis v Protopopescu, 37 AD3d 1178 [2007]; Atwell v State of New York, 229 AD2d 849 [1996]).
Likewise, the proof established that the pole served the primary purposes of defining the edge of the left fork of the Ashokan Trail and acting as a mechanism for roping off areas not open to skiers.The uncontradicted testimony of Mr. Strauss established that the pole with which the claimant collided was part of a system of posts, connected by ropes, which were installed, at his direction, along the left fork of the trail "to define the edge of the trail" (Transcript p. 98). As such the pole constituted both an object incidental to the operations of Belleayre and a part of a boundary fence the defendant was under no duty to pad (see, General Obligations Law § 18-101; Nagawiecki v State of New York, 150 AD2d 147, 150 [1989]; Fabris v Town of Thompson, 192 AD2d 1045 [1993]; Bedder v Windham Mtn. Partners, LLC, 86 AD3d 428 [2011]; Tremblay v West Experience, 296 AD2d 780 [2002]; Atwell v State of New York, 229 AD2d 849 [1996]; Dicruttalo v Blaise Enters., 211 AD2d 858 [1995]; cf. Basilone v Burch Hill Operations, 199 AD2d 779 [1993]; Fabris v Town of Thompson, 192 AD2d 1045 [1993] [question of fact regarding location of unpadded pole precluded summary judgment]). The fact that skiers and snowboarders utilized the area in which the pole was situated as a jump does not change the result. While it may be "entirely foreseeable that a skier would sustain injuries in a collision with an unpadded pole ... foreseeability alone cannot create a duty where none existed before" (Nagawiecki v State of New York, 150 AD2d 147, 150 [1989], citing Pulka v Edelman, 40 NY2d 781, 786 [1976]). Inasmuch as the proximity of the pole to the ski trail was open and obvious, the risk of collision with the pole was a risk inherent in skiing that particular trail (see Trevett v City of Little Falls, supra; Hyland v State of New York, supra; Nagawiecki v State of New York, supra).
The pole was also used as a place for mounting the "SLOW" sign.
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Claimant's expert's opinion that the pole was unnecessary because other materials, such as large divider signs, were available to direct skiers away from the trail when it was closed is not dispositive where the risk is open and obvious to an experienced skier such as the claimant. Application of the assumption of risk doctrine depends not upon a determination that the conditions were as safe as they could be, but upon a determination that the conditions were as safe as they appeared to be. Thus, where the injury producing conditions are open and obvious and the risks readily appreciable, application of the doctrine is not foreclosed by the fact that the conditions could have been made safer (Bukowski v Clarkson Univ., 86 AD3d 736, 738 [2011]; Martin v State of New York, 64 AD3d 62, 64 [2009], lv denied 13 NY3d 706 [2009]). Indeed, for the purposes of applying the assumption of risk doctrine "it is irrelevant that a defendant 'could feasibly have provided safer conditions' " (Martin v State of New York, 64 AD3d at 64; Simoneau v State of New York, 248 AD2d 865, 866-867 [1998]). As a result, claimant's proof regarding the availability of safer methods of closing the trail does not overcome application of the assumption of risk doctrine. Based on the foregoing, the Court concludes that the claimant failed to establish defendant's negligence by a preponderance of the credible evidence. Accordingly, the claim is dismissed. All motions not otherwise decided herein are denied.
Let judgment be entered accordingly.
January 12, 2012
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims