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Expert Skier Assumed Risk of Injury, N.Y. Court Finds in Barring Suit
Joel Stashenko
New York Law Journal
May 20, 2009
The doctrine of primary assumption of risk bars a claim filed on behalf of a teenage skier who broke his tibia trying to slide along a rail on the Whiteface Mountain winter sports complex, a New York appeals court has ruled.
As a self-described expert skier with 13 years' experience, Brian W. Martin, 17, was well aware of the risks associated with rail sliding and had acknowledged falling before while attempting to execute a rail maneuver, an Appellate Division, 3rd Department, panel ruled last week in Martin v. State of New York, 505999.
Martin and his parents, William C. and Joanne Martin, argued that the rail posed a concealed danger to skiers because it was not "skirted," meaning its vertical support bars were not covered or cushioned. Martin broke his tibia when his left leg hit one of the supports after he fell from the rail.
However, a unanimous 3rd Department panel held that under the doctrine of primary assumption of risk, the state's obligation to Martin was to make the conditions of performing an inherently risky maneuver like rail sliding as safe as they appear to be, not as safe as it could be.
"If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendants has performed its duty," Justice Thomas E. Mercure wrote for the 5-0 court, citing Turcotte v. Fell, 68 NY2d 439 (1986), Morgan v. State of New York, 90 NY2d 472 (1997) and other cases.
As to the lack of skirting on the rail, the judges held that video submitted by the Martins showed that nothing prevented Martin from inspecting the rail before trying to slide on it and that "even a cursory glance" would have indicated to him that there was no skirting. A snow-covered ramp led up to the rail to give skiers the necessary lift to land onto the rail.
"Indeed, not only do claimants' submissions establish that the risk of a fall and contact with some portion of the rail was open and obvious, it is evident that '[a] fall was foreseen as one of the risks of the adventure [and] [t]here would have been no point to the whole thing, no adventure about it, if the risk had not been there,'" the court held, quoting Murphy v. Steeplechase Amusement Co., 250 NY 479 (1929). "'One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary.'"
The court also held that an affidavit filed by an expert witness for the Martins, Day Franzen, was insufficient to raise a triable issue of fact. Franzen testified that it is becoming "increasingly uncommon" to see unskirted rails.
"Claimants presented no evidence that the industry or any regulating body had adopted any standards regarding the use of skirting on rails or that ski parks normally adhered to the practice of placing skirting on all rails, including low difficulty rails such as that at issue," Mercure wrote.
Justices Edward O. Spain, E. Michael Kavanagh, Leslie E. Stein and William E. McCarthy joined in Mercure's ruling.
Martin was skiing with friends at the Lower Valley Terrain Park at Whiteface Mountain, which is operated by the New York State Olympic Regional Development Authority, when he was injured in February 2005. At terrain parks, skiers engage in freestyle maneuvers, such as rail sliding, as opposed to the steep slopes where skiers ride downhill following trails.
The decision affirmed Court of Claims Judge Judith A. Hard's ruling in March 2008. She also found that the doctrine of primary assumption of risk barred the Martins' action and granted the state's motion for summary judgment in Martin v. State of New York, 2008-032-101.
Salvatore D. Ferlazzo of Girvin & Ferlazzo in Albany represented the Martins.
Assistant Attorney General Frank K. Walsh defended the state and the Olympic Regional Development Authority.
The 3rd Department holding was similar to another appellate ruling involving recreational activities and the doctrine of primary assumption of risk.
Last month, a divided 2nd Department panel determined that holding a golfer liable for not yelling "fore" before his shanked shot blinded a fellow golfer in one eye is "inimical" to the rationale underlying the doctrine, and counter to the public policy goal behind the doctrine of encouraging free participation in sporting and recreational activities.
Joel Stashenko
New York Law Journal
May 20, 2009
The doctrine of primary assumption of risk bars a claim filed on behalf of a teenage skier who broke his tibia trying to slide along a rail on the Whiteface Mountain winter sports complex, a New York appeals court has ruled.
As a self-described expert skier with 13 years' experience, Brian W. Martin, 17, was well aware of the risks associated with rail sliding and had acknowledged falling before while attempting to execute a rail maneuver, an Appellate Division, 3rd Department, panel ruled last week in Martin v. State of New York, 505999.
Martin and his parents, William C. and Joanne Martin, argued that the rail posed a concealed danger to skiers because it was not "skirted," meaning its vertical support bars were not covered or cushioned. Martin broke his tibia when his left leg hit one of the supports after he fell from the rail.
However, a unanimous 3rd Department panel held that under the doctrine of primary assumption of risk, the state's obligation to Martin was to make the conditions of performing an inherently risky maneuver like rail sliding as safe as they appear to be, not as safe as it could be.
"If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendants has performed its duty," Justice Thomas E. Mercure wrote for the 5-0 court, citing Turcotte v. Fell, 68 NY2d 439 (1986), Morgan v. State of New York, 90 NY2d 472 (1997) and other cases.
As to the lack of skirting on the rail, the judges held that video submitted by the Martins showed that nothing prevented Martin from inspecting the rail before trying to slide on it and that "even a cursory glance" would have indicated to him that there was no skirting. A snow-covered ramp led up to the rail to give skiers the necessary lift to land onto the rail.
"Indeed, not only do claimants' submissions establish that the risk of a fall and contact with some portion of the rail was open and obvious, it is evident that '[a] fall was foreseen as one of the risks of the adventure [and] [t]here would have been no point to the whole thing, no adventure about it, if the risk had not been there,'" the court held, quoting Murphy v. Steeplechase Amusement Co., 250 NY 479 (1929). "'One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary.'"
The court also held that an affidavit filed by an expert witness for the Martins, Day Franzen, was insufficient to raise a triable issue of fact. Franzen testified that it is becoming "increasingly uncommon" to see unskirted rails.
"Claimants presented no evidence that the industry or any regulating body had adopted any standards regarding the use of skirting on rails or that ski parks normally adhered to the practice of placing skirting on all rails, including low difficulty rails such as that at issue," Mercure wrote.
Justices Edward O. Spain, E. Michael Kavanagh, Leslie E. Stein and William E. McCarthy joined in Mercure's ruling.
Martin was skiing with friends at the Lower Valley Terrain Park at Whiteface Mountain, which is operated by the New York State Olympic Regional Development Authority, when he was injured in February 2005. At terrain parks, skiers engage in freestyle maneuvers, such as rail sliding, as opposed to the steep slopes where skiers ride downhill following trails.
The decision affirmed Court of Claims Judge Judith A. Hard's ruling in March 2008. She also found that the doctrine of primary assumption of risk barred the Martins' action and granted the state's motion for summary judgment in Martin v. State of New York, 2008-032-101.
Salvatore D. Ferlazzo of Girvin & Ferlazzo in Albany represented the Martins.
Assistant Attorney General Frank K. Walsh defended the state and the Olympic Regional Development Authority.
The 3rd Department holding was similar to another appellate ruling involving recreational activities and the doctrine of primary assumption of risk.
Last month, a divided 2nd Department panel determined that holding a golfer liable for not yelling "fore" before his shanked shot blinded a fellow golfer in one eye is "inimical" to the rationale underlying the doctrine, and counter to the public policy goal behind the doctrine of encouraging free participation in sporting and recreational activities.
