Opinion
110212.
Decided on February 4, 2008.
Claimant's attorney: Lemery Greisler LLC, By: Daniel J. Tyson, Esq.
Defendant's attorney: ANDREW M. CUOMO, Attorney General of the State of New York, By: Michele M. Walls, Esq., AAG, Third-party defendant's attorney.
This Claim arises from a skiing accident that occurred on February 15, 2003 at Whiteface Mountain in Wilmington, New York (hereinafter Whiteface). On the date of the incident, the infant Claimant, Nina Valente (hereinafter Nina or Claimant), stood 3'6" tall and weighed 55 pounds ( see Ex. H attached to Motion) and was eight years of age ( see Ex. 12 attached to Affidavit in Opposition). Prior to the incident date, Nina skied on one occasion at Big Boulder Ski Area in Pennsylvania with her father. At that time, Nina took a ski lesson and then skied some with her father. According to Mr. Valente, "she was skiing like a beginner" (Ex. J attached to Motion, Deposition Transcript of Joseph M. Valente, p. 13).
Nina and her family arrived at Whiteface before 9:00 a.m. on February 15, 2003. Mr. and Ms. Valente rented skis and purchased lift tickets with full-day lessons for their daughters, Nina and Mia, through the Whiteface Ski School, which is known as Kids' Kampus. When Nina was being fitted for her rental ski equipment, the Valentes advised that Nina was a beginner skier (Ex. J attached to Motion, p. 16). The girls were assigned to the Junior Adventure Program for children ages 7 to 12. The program included a two-hour morning lesson, lunch and off-slope supervision, and a two-hour afternoon lesson ( see Ex. 5 attached to Affidavit in Opposition). The girls were assigned to a ski class with instructor Aleitha Burns. Mr. Valente stayed at Whiteface to ski, while Ms. Valente took her son back to their hotel to swim (Ex. M attached to Motion, Deposition Transcript of Ruthann S. Valente, p. 19).
At her August 17, 2006 deposition, Nina testified that she was not familiar with the ski term "snow plow" but was familiar with the term "pizza slice." She described it as putting the tips of the skis close together so they look like a triangle, or pizza slice, so that the skier slows down (Ex. K attached to Motion, Deposition Transcript of Nina Valente, pp. 15-16). Nina's sister, Mia, testified at her deposition (also conducted on August 17, 2006) that the morning ski lesson lasted a couple of hours and that the instructors were teaching the group how to stop and how to slow down by taking bigger turns. She stated that they taught the "pizza slice" to stop but did not teach a "hockey stop" (Ex. O attached to Motion, Deposition Transcript of Mia S. Valente, pp. 11-12). At some point, the group was divided into two parts and one instructor took Mia and two or more children to a different area, and the other instructor stayed with Nina with several other students ( id. pp. 14-15). Mia was not present when Nina was injured ( id. p. 17).
Aleksandra Irvin testified at her October 30, 2006 deposition that, at the time of Claimant's accident, she was the Director of the Kids' Kampus at Whiteface (Ex. L attached to Motion, Deposition Transcript of [Aleksandra] Irvin, p. 18). She also stated that students with more skiing ability were allowed to progress to a longer trail called Easy Street, which is located outside of the Easy Acres ski area, where ski lessons began ( id. p. 125). According to Ms. Irvin, Easy Street has the same difficulty rating a green circle rating as the trails at Easy Acres campus but, because it starts higher on the mountain, it affords a skier a longer run than the Easy Acres trails ( id. pp. 124-125). She stated that Easy Street is the next step in the progression of a lesson ( id. p. 125).
Deponent's name was listed, apparently in error, as "Alexandra Irvin" in the deposition transcript ( see Ex. P attached to Walls Reply Affirmation, Affidavit of Aleksandra Irvin).
Ski trails at Whiteface are rated according to four levels of difficulty, symbolized by various colored shapes. Green circles indicate easier trails; blue squares more difficult; black diamonds most difficult; and double black diamonds experts only (Ex. E attached to Motion, Whiteface Trail Map).
Nina testified at her deposition that the instructor took her group to a "second mountain" (Ex. K attached to Motion, p. 20). She stated the instructor told her she was taking Nina to this mountain because Nina was "doing good" ( id. p. 21). Nina stated that she hesitated to get on the chair lift at that mountain but the instructor made her go on the lift and then sat with Nina on the lift chair ( id. pp. 21-22). Nina stated that, after she and the others got off the lift, she began to ski down the trail as part of a line, with her classmates in front of her ( id. pp. 23-24). She began to accelerate down the trail and did not want to hit the people in front of her, so she went around them and collided with a building ( id. p. 25). The building Claimant struck is a timing shack, which is used to house equipment and staff when Whiteface hosts ski races (Ex. L attached to Motion, p. 137). Prior to striking the timing shack, Nina remembers the instructor telling her to stop a few times, and she tried to stop by skiing sideways but it did not work very well (Ex. K attached to Motion, pp. 26-27).
The second mountain was Easy Street.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion ( see Crowley's Milk Co. v Klein, 24 AD2d 920 [3rd Dept 1965]; Wanger v Zeh, 45 Misc 2d 93, 94 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3rd Dept 1966]).
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" ( Alvarez v Prospect Hosp., 68 NY2d 320, supra at 324; see Winegrad v New York Univ. Med. Center, 64 NY2d 851, supra at 853).
The Claim alleges that Defendant was negligent, inter alia, by failing to maintain the premises in a safe condition, failing to exercise proper care over Claimant, and allowing a dangerous condition to exist off the side of the trail. It is further alleged that the ski instructor was negligent in taking Claimant to a slope that was beyond her ability. The Bill of Particulars further asserts that the instructors negligently supervised Claimant and that Defendant negligently trained its employees ( see Ex. D attached to Motion, ¶ 14).
Some claimants agree in advance, however, to absolve defendants from a duty of care that otherwise would be owed concerning known risks attendant with a certain activity or condition. When applicable, the doctrine of assumption of risk (which governs such circumstances) "is not an absolute defense but a measure of the defendant's duty of care" ( Turcotte v Fell, 68 NY2d 432, 439; see Laboy v Wallkill Cent. School Dist., 201 AD2d 780, 780 [3rd Dept 1994]). The doctrine has been parsed further into several categories. Pursuant to one, the primary assumption of risk doctrine, when claimants voluntarily engage (as participants, spectators, or even bystanders) in sporting or recreational activities, they may be "deemed to have assumed certain risks occasioned by athletic or recreational activity" ( Roberts v Boys Girls Republic, Inc., ___ AD3d ___ [1st Dept 2008] [citations omitted]; see Turcotte v Fell, 68 NY2d 432, 438-439, supra; Lamey v Foley, 188 AD2d 157, 163 [4th Dept 1993]). In such cases, defendants owe "a duty to exercise care to make the conditions as safe as they appear to be" ( Turcotte v Fell, 68 NY2d 432, 439, supra).
Defendant asserts in its motion for summary judgment that: (1) Claimant assumed the risks inherent in the sport of downhill skiing; (2) Defendant had no duty to pad, protect or mark the timing shack because it was outside the skiable terrain of the slope; and (3) Claimant did not ski under control, as required by General Obligations Law § 18-105.
The doctrine of primary assumption of risk provides that "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Morgan v State of New York, 90 NY2d 471, 484; Dobert v State of New York, 8 AD3d 873 [3rd Dept 2004]). Hence, "[i]f the risks of the activity are fully comprehended or perfectly obvious, [claimant] has consented to them and defendant has performed its duty [citations omitted]" ( Turcotte v Fell, 68 NY2d 432, 439, supra; Paone v County of Suffolk, 251 AD2d 563, 564 [2nd Dept 1998]; Colucci v Nansen Park, 226 AD2d 336 [2nd Dept 1996]). While it may still be possible for a claimant to recover in connection with damages that pose "unreasonably increased risks" ( Morgan v State of New York, 90 NY2d 471, 485, supra; Simoneau v State of New York, 248 AD2d 865, 866 [3rd Dept 1998]), the mere fact that the defendant could feasibly have provided safer conditions is not dispositive where the risk is open and obvious to the participant taking into consideration the individual's level of experience and expertise and is an intrinsic part of the sport ( see Morgan v State of New York, 90 NY2d 471, 485, supra; Maddox v City of New York, 66 NY2d 270, 278; Simoneau v State of New York, 248 AD2d 865, 866, supra).
Thus, Defendant's burden on this motion is to establish that Claimant was aware of, and accepted, the inherent risks associated with skiing and that conditions at Whiteface were as safe as they appeared to be. It is not necessary that Defendant establish that Claimant foresaw the exact manner in which the injury occurred ( Maddox v City of New York, 66 NY2d 270, 278, supra; Lamey v Foley, 188 AD2d 157, 164, supra). Further, it has been held that, so long as a claimant is aware of the potential for injury inherent in the hazard, that claimant may be deemed to have assumed the risk of such injury ( Maddox v City of New York, 66 NY2d 270, 278, supra). Whether a particular participant is aware of and appreciates a particular risk "must be assessed against his or her skill, background and experience" ( Myers v Friends of Shenendehowa Crew, Inc., 31 AD3d 853, 854 [3rd Dept 2006]; Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607 [3rd Dept 2003]; de Lacy v Catamount Dev. Corp., 302 AD2d 735, 736 [3rd Dept 2003]).
Moreover, "[a] teacher is under a duty to use reasonable care to prevent injury to students This responsibility includes the obligation not to direct a student to do that which is unreasonably dangerous and to provide such instruction and supervision as is reasonably required to safely perform the directed tasks What is reasonable will, of course, vary with, among other factors, the age and abilities of the student" ( Yarborough v City University of New York, 137 Misc 2d 282, 285 [Ct Cl 1987] [citations omitted]; see Talbot v New York Inst. of Tech., 225 AD2d 611 [2nd Dept 1996]; Mintz v State of New York, 47 AD2d 570 [3rd Dept 1975]; Tabone v State of New York, 116 Misc 2d 864, 868 [Ct Cl 1982]).
Applying these principles to the instant case, the Court concludes that questions of fact exist as to whether 8-year-old Nina appreciated and assumed the risks associated with skiing and whether her instructor's (Aleitha Burns) supervision and instruction of Nina exposed her to conditions above and beyond those inherent in the sport of skiing by not properly instructing Nina on how to navigate the new slope, i.e., Easy Street. In addition, General Obligations Law (hereinafter GOL) § 18-105 sets forth the duties of skiers. GOL § 18-105(2) provides that skiers not ski beyond their limits or ability to overcome variations in the slope and Subsection 4 provides that skiers remain in constant control of their speed. The Court also notes a question of fact as to whether the instructor placed Nina in a position of skiing beyond her ability by having her ski on Easy Street.
Based upon the record, which establishes that Nina had skied on one previous occasion, the Court is not willing to endorse Defendant's assessment that she was an experienced skier at the time of her accident. It is the Court's determination that the record also leaves unresolved a question of fact as to whether Nina was more likely a novice skier than an experienced skier. Given Nina's possible status as a less-than-experienced skier and her limited participation in the sport of skiing, it cannot be said, as a matter of law, that Nina was aware of and appreciated the risks associated with the sport and that she voluntarily assumed such risks ( see Myers v Friends of Shenendehowa Crew, Inc., 31 AD3d 853, 856, supra).
The Court further concludes that Defendant failed to establish its entitlement to judgment as a matter of law regarding Claimant's assertion Defendant had a duty to pad the timing shed. Thus, a question of fact remains as to whether or not conditions at Whiteface were as safe as they appeared to be.
GOL § 18-103(4) provides ski area operators have a duty "[t]o conspicuously mark the location of such man-made obstructions as, but not limited to, timing equipment 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." A question of fact exists as to whether or not the timing shed that Claimant collided with is located on skiable terrain. Claimant contends that it is (Claimant's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, p. 13; Plunket Affidavit, ¶ 18(b) attached to Tyson's Affidavit in Opposition to Defendant's Motion for Summary Judgment) while Defendant asserts that it is not (Defendant's Memorandum of Law, pp. 17-19; Ex. P attached to Walls Reply Affirmation, Affidavit of Aleksandra Irvin, ¶ 23).
Moreover, Defendant asserts that the timing shed is more than six feet tall and, thus, there is no duty to pad the obstruction. Defendant relies upon the affidavit of Aleksandra Irvin (Ex. P attached to Defendant's Counsel's Reply Affirmation) and the affidavit of Harry Czosnykowski, a senior investigator in the Attorney General's office. Ms. Irvin avers that the timing shed "is greater than six feet in height" (Ex. P, Irvin Affidavit, ¶ 24). In addition, Mr. Czosnykowski avers that he is "between 5'11" and 6' in height" (Czosnykowski Affidavit attached to Motion, ¶ 2), that he stood next to the timing shed and its roof was many feet above his head. He concluded, "[a]s I am just slightly less than six feet tall, it was apparent to me that the timing shed was significantly more than six feet in height" ( id. ¶ 4).
While both affiants assert that the timing shed is greater than six feet in height, that fact, by itself, is irrelevant. GOL § 18-103(4) requires the marking of the location of manmade obstructions that are less than six feet above snow level. Neither affiant asserts that a measurement of the shed's height was taken when snow was on the ground and that the shed was six feet or more above snow level so that it did not have to be marked as required by GOL § 18-103(4).
Finally, the preceding questions as to whether or not the primary assumption of risk doctrine governs this Claim ultimately implicate other fundamental questions raised in any negligence claim: did Defendant owe Claimant a duty of care; was that duty breached; and, if so, was Claimant injured as a result of such breach? Questions of fact remain with respect to each of them.
Moreover, in her reply affirmation and reply memorandum of law, Defense counsel refers to Claimant's First Supplemental Bill of Particulars and First Supplemental Amended Bill of Particulars. Defendant asserts it was served with these documents on August 10, 2007 and August 28, 2007, respectively, after the Note of Issue and Certificate of Readiness was filed on May 31, 2007 and after Defendant served its motion for summary judgment. Counsel argues that neither document should be considered by the Court because each states new allegations of negligence that were not disclosed prior to the filing of the Note of Issue (Walls Reply Affirmation, ¶¶ 13, 21). Counsel asserts that CPLR 3042(b) does not allow a bill of particulars to be amended after the note of issue is filed and that Defendant has been prejudiced by the allegedly untimely service because it could have conducted further discovery had it been aware of these new allegations ( id., ¶¶ 17-18). The Court concludes that Defendant overstates the statute's prohibition on amendments. As the Appellate Division noted, in Romanello v Jason ( 303 AD2d 670 [2nd Dept 2003]):
Once a note of issue has been filed, a plaintiff may not serve an amended bill of particulars without obtaining leave of the court ( see CPLR 3042[b]; Barrera v City of New York, 265 AD2d 516, 518 [1999]; Leave should be freely given in the absence of prejudice or surprise to the opposing party ( see Barrera v City of New York, supra; Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555 [1997]; Kyong Hi Wohn v County of Suffolk, 237 AD2d 412 [1997]; Volpe v Good Samaritan Hosp., 213 AD2d 398 [1995]).
"In deciding motions for leave to amend a bill of particulars the standard to be employed is akin to that enunciated in CPLR 3025 (subd. [b]) governing applications for leave to supplement or amend pleadings" ( see Maloney v Union Free School Dist. No. 7, 46 AD2d 789 [2nd Dept 1974]).
A Discovery Schedule prepared on April 13, 2006 by Tammy O'Melia Taylor, Principal Law Clerk to Judge Judith A. Hard, and agreed to by the parties provided that responses to CPLR 3101(d) demands relating to expert witness disclosure were to be served within 45 days after filing of the Note of Issue. By stipulation of the parties, which was "So Ordered" by the Court on January 10, 2007, the time for Claimant to serve and file the Note of Issue was extended to June 4, 2007. It also provided that the time period for providing expert responses and for making summary judgment motions remained the same ( see Ex. 18 attached to Tyson Sur Reply Affidavit).
According to Claimant's counsel, the First Supplemental Bill of Particulars, served on August 10, 2007, expanded the allegations of negligence contained in the original Bill of Particulars to incorporate the expert opinions contained in Claimant's expert witness disclosure (Tyson Sur Reply Affidavit, ¶ 9). This point is conceded by Defense Counsel (Walls Reply Affirmation, ¶ 22). Claimant's counsel asserts that: the First Supplemental Amended Bill of Particulars, served on August 28, 2007, addressed typographical errors contained in the First Supplemental Bill of Particulars; no objection was raised by Defendant to the Supplemental Bill of Particulars until the Walls Reply Affirmation to this motion, dated November 6, 2007; and Defendant did not reject either the First Supplemental or the First Supplemental Amended Bill of Particulars when they were served (Tyson Sur Reply Affidavit, ¶ 10).
The Court concludes that the Claimant's expert witness disclosure was timely provided in accordance with the Court's Scheduling Order. The Court hereby schedules a conference with counsel to be held in Chambers on Thursday, March 6, 2008 at 11:00 a.m. to discuss the issues relating to the First Supplemental and First Supplemental Amended Bill of Particulars including, inter alia: whether Claimant has provided a reasonable excuse for her delay in seeking to amend her Bill of Particulars; whether the State has been prejudiced and/or surprised by their service; and whether the provisions of CPLR 3025(b) and (c), 3042(b), (c) and (d) and/or 3043(c) have been met.
Therefore, based upon the foregoing, Defendant's motion pursuant to CPLR 3212 seeking summary judgment dismissing the Claim is denied.