Bad release and prepped plaintiff defeat motion for summary judgment filed by ski area

Rich et. al., vs. Tee Bar Corp. et. al., 2013 U.S. Dist. LEXIS 10682

Plaintiff argued she was “flung” with all employees and to the court, even though she had no proof except her own testimony.

Plaintiff, her husband and two children went to the defendant resort in New York. At the resort, she skied and tubed. During tubing, she was riding with her daughter in a double tube for several runs. She later switched to a single tube.

After riding to the top on the tube she claims she heard the lift attendants at the top talking about trying to get tubers to hit the back of the run out. She then claimed the lift attendant grabbed the rope attached to her tube, ran her back to the back of the top of the landing and ran forward flinging her down the hill. The plaintiff’s tube went through the deceleration area and struck the backstop at the back of the deceleration area causing her injury.

Plaintiff claims that, without warning, Frisher took the rope attached to her tube, ran her back towards the woods, then turned and ran her to the top of the hill and “flung” her down the hill. McDermott does not remember the incident at all and denies ever seeing a coworker “fling” a tuber down the hill. Frisher does not remember the incident and denies ever seeing anyone “fling” a tuber down the hill. Plaintiff struck the barrier at the top of the deceleration ramp.

After her injury, the plaintiff walked with a resort employee to the ski shop. She sat there for 10 minutes and refused additional medical care. She then went to her room. A resort employee and a nurse went to her room and suggested the plaintiff go to a hospital, but she declined. The next day she skied with her family and stayed at the resort until her reservation ended.

While she was at the resort, after her injury, the plaintiff allegedly told three resort managers about the incident, and that she had been flung down the tubing hill. Some of the resort managers remember talking to her, but most do not remember her stating that she was flung down the hill.

The court went through the work done by the resort to slow down tubers in the deceleration area. The resort uses rubber mats and straw to slow down tubers. The runs are checked by resort employees before they are opened to the public and are monitored during the runs. If guests are going too far through the tubing deceleration area, additional measures are taken to slow tubers down.

The plaintiff filed this complaint in federal district court in New York. The court stated the complaint was based on diversity jurisdiction meaning the plaintiff was not a resident of New York; however, that information is not stated in the opinion.

The defendant filed a motion for summary judgment and a motion to restrict medical testimony. The court ruled there was sufficient testimony to send to a jury, and the motion for summary judgment was denied.

Summary of the case

The court first looked at the defense of assumption of the risk. Under New York law, a person engaging in a sport assumes the inherent risk of the activity that flow from participation. A participant does not assume the risk that are not inherent or a risk increased by the defendant.

However, a participant does not assume risks that are the result of reckless or intentional conduct, risks “concealed or unreasonably increased” or risks that result in a “dangerous condition over and above the usual dangers inherent in the activity.”

In New York, whether the plaintiff assumes the risk is a question for the jury.

Generally, whether the plaintiff assumed a risk by participating in a sport is a question for the jury; dismissal of the complaint is appropriate only when the proof before the court reveals no triable issue of fact.

Here the plaintiff was able to create a triable issue of fact that the resort had increased her risk by flinging her down the slope. A triable issue of fact is one that there are issues or different versions of the facts from the plaintiff and defendant. The court cannot, is not allowed to decide, which one is correct so the issue must go to trial. Creating a triable issue of fact is the easiest way to defeat a motion for summary judgment. Because the facts are at issue, it does not matter what law is applied so the motion cannot be granted.

It may seem odd that a judge may eventually make the decision which he or she could not make earlier. At trial, each side is on equal footing and all the rules of trial are at play. Prior to that point in time, the footing may not be equal. As such for one party to win prior to trial, there must be nothing the other side can show that would change the decision. A triable issue of fact is one where one side is able to show there is an issue, and it must go to a full blow hearing of a trial and be reviewed by the trier of fact. The trier of fact in most cases is a jury, but if not jury, then the judge.

One interesting argument on the assumption of risk issue was the warning signs at the tubing hill. The plaintiff claims she never saw any warning signs. She also said she never saw the Willy Bags, padding at the tubing hill also.

The next argument was the plaintiff signed a release. The court quickly dismissed this argument because the release was poorly written. Under New York law, a release “must be plain and precise that the limitation of liability extends to negligence or the fault of the party attempting to shed its ordinary responsibility.” The court found the opposite in this case.

The waiver makes no reference to “negligence” and does not mention the specific risks inherent in snow tubing. Thus, the waiver is insufficient to protect defendants from liability for the subject occurrence. Moreover, having never been made aware of the risks involved in the activity, the claimant cannot be considered to have assumed them.

The next argument is rare to find in cases. The defendant argued that the injuries of the plaintiff were not proximately caused by the negligence of the defendant. Remember negligence has four requirements to be proved.

·        A Duty

·        Breach of the Duty

·        Injury proximately caused by the breach of duty

·        Damages

For the plaintiff to recover the injury she received must have been due to the breach of duty. In this case, her injuries had to have been caused because the defendant’s employee “flung” her down the hill. That means there must be a connection between her injury and what the defendant did.

The basis of the defense was the resort had tried to recreate the incident which caused the plaintiff’s injuries and could not. The plaintiff rebutted this argument with an expert witness who argued based on the facts as stated by the plaintiff; she could have slid to the back wall of the deceleration area. The court sort of looked at the test done by the resort as lame.

The argument made by the defendant was not supported by the defendant in its motion.

The court also looked at the defendant’s arguments that certain medical information should be precluded from the trial; however, that will not be covered here.

So Now What?

Warning Signs: Put into your release that the plaintiff agrees to read and understand all warning signs. Signs must also be placed in a position you cannot help but see them. Signs should be along the path from where you sign in and pay to the lift or from where you pick up your tube to the lift. Places where you cannot argue, you did not see the signs.

You also need to prove the signs were there. Just like the log books of lift attendants, have the tubing lift attendants check for and log that all the signs were up and readable before the hill was open.

Although the facts helped argue assumption of the risk, the plaintiff had equal arguments that the risk was changed or increased by the defendant. As I have stated in the past, the best way to prove assumption of the risk is to have it in writing or video and prove the writing with a signature. Here the release was specifically cited by the court as not having any assumption of risk language in it.

The release was just plain bad.

If you want to recreate the events giving rise to a lawsuit, you cannot do it yourself. You must hire competent outside experts to do it. Here the court looked at the test by hardly even commented on it meaning it had no validity.

The major issue is to spot a lawsuit coming at you. Here the plaintiff, although not suffering any major injuries, went out of her way to talk to all the managers she could find. Although her claims and allegations may seem to be preposterous, she repeatedly made them to anyone and everyone she could. That is a warning sign, you have an upset guest.

No matter how wild the allegations, the other warning signs mean you need to take the complaint as valid and deal with it. More importantly, deal with the complaining guests. Although her allegations are beyond belief and would not be done by your staff, you have a guest who is obviously willing to do anything to get something out of you.

Finally, you must caution your staff about making any statement that could be interpreted by a guest as a risk, threat, or an attempt to create injuries. Although probably, if at all plausible, a joke, it was interpreted or could be interpreted by the plaintiff as the reason for her injuries.

Plaintiff: Donna Rich and Mark Rich

Defendant: Tee Bar Corp. and Rocking Horse Ranch Corp

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk, Release,

Holding: Defendants Summary Judgment motion denied and sent for trial.

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