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New York Skier Safety Act

New York Skier Safety Act

General Obligations Law 

ARTICLE 18.  SAFETY IN SKIING CODE

NY CLS Gen Oblig Article 18 Note  (2012)

Gen Oblig Article 18 Note

HISTORY:

Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).

NOTES:

Laws 1988, ch 711, § 4, eff Nov 1, 1988, provides as follows:

§ 4. This act shall take effect on November first, nineteen hundred eighty-eight; provided that section 18-106 of the general obligations law, as added by section one of this act, shall take effect on the first day of October, nineteen hundred eighty-nine; and provided further that the commissioner of labor, effective immediately, is authorized and directed to promulgate any and all rules and regulations necessary to the timely implementation of the provisions of this act on their effective dates.

Research References & Practice Aids:

3 NY Jur 2d Amusements and Exhibitions § 30

§ 18-101.  Legislative purpose. 1

§ 18-102.  Definitions. 4

§ 18-103.  Duties of ski area operators. 5

§ 18-104.  Duties of passengers. 9

§ 18-105.  Duties of skiers. 10

§ 18-106.  Duties of skiers and ski area operators with respect to inherent risks. 12

§ 18-107.  Construction.. 15

§ 18-108.  Severability. 16

§ 867.  Safety in skiing code. 16

 

§ 18-101.  Legislative purpose

The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the state of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state; (2) that downhill skiing, without established rules of conduct and care, may result in injuries to persons and property; (3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry.

HISTORY:

Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).

NOTES:

Editor’s Notes

Laws 1988, ch 711, § 4, eff Nov 1, 1988, provides as follows:

§ 4. This act shall take effect on November first, nineteen hundred eighty-eight; provided that section 18-106 of the general obligations law, as added by section one of this act, shall take effect on the first day of October, nineteen hundred eighty-nine; and provided further that the commissioner of labor, effective immediately, is authorized and directed to promulgate any and all rules and regulations necessary to the timely implementation of the provisions of this act on their effective dates.

NYCRR References:

Safety in skiing. 12 NYCRR §§ 54.1 et seq

Research References & Practice Aids:

3 NY Jur 2d Amusements and Exhibitions § 30

Annotations:

Ski resort’s liability for skier’s injuries resulting from condition of ski run or slope. 55 ALR4th 632

Case Notes:

Defendants, owners and operators of snow skiing facility, should have been granted summary judgment where injured plaintiff assumed risks inherent in downhill skiing by his voluntary participation in sport, and expert’s affidavit submitted by plaintiff failed to raise fact issue as to whether defendants unreasonably increased risks to which plaintiff was exposed. Osorio v Deer Run Assocs. 1985 (1996, 2d Dept) 231 App Div 2d 504, 647 NYS2d 93, app den (1997) 89 NY2d 808, 655 NYS2d 887, 678 NE2d 500.

Voluntary participants in sport of downhill skiing assume inherent risks of personal injury caused by, inter alia, terrain, weather conditions, ice, trees and man-made objects that are incidental to provision or maintenance of ski facility. Fabris v Town of Thompson (1993, 3d Dept) 192 App Div 2d 1045, 597 NYS2d 477.

In personal injury action by plaintiff who was struck from behind by defendant while both were skiing on expert trail, defendant was not entitled to summary judgment on ground that plaintiff assumed risk of dangers posed by other downhill skiers under CLS Gen Oblig § 18-101, where only eyewitness to accident (plaintiff’s skiing companion) averred that, before collision, he saw defendant skiing recklessly or out of control at speed much too fast for trail and showing total disregard for potential dangers he created to other skiers. Martin v Luther (1996, 3d Dept) 227 App Div 2d 859, 642 NYS2d 728.

In action for injuries sustained by experienced skier at facility owned and operated by state, when he collided with tree after turning away from trail and toward woods to avoid hitting another skier, state was entitled to summary judgment even if assertions by claimant’s expert raised issue of fact as to adequacy of its maintenance of ski trail, as claimant’s injuries were not proximately caused by state’s alleged negligence; in addition, obstacles encountered by claimant (e.g., skier he turned to avoid hitting, and tree he hit) are statutorily recognized as dangers inherent in skiing. Atwell v State (1996, 3d Dept) 229 App Div 2d 849, 645 NYS2d 658.

Ski lodge owner and its volunteer safety ski patroller were entitled to summary judgment, in action by skier injured in collision with patroller, where plaintiff admitted that he assumed risk of colliding with another participant skier on slope, he did not prove that patroller acted recklessly or intentionally, and CLS Gen Oblig § 18-101 states that voluntary participants in downhill skiing assume inherent risks of personal injury by other persons using facilities. Kaufman v Hunter Mt. Ski Bowl (1997, 2d Dept) 240 App Div 2d 371, 657 NYS2d 773, app den (1998) 91 NY2d 805, 668 NYS2d 560, 691 NE2d 632 and (criticized in Duncan v Kelly (1998, 3d Dept) 249 App Div 2d 802, 671 NYS2d 841).

Court of Claims properly found state not liable where wooden guide rail on which claimant fell was incidental to provision or maintenance of ski facility, serving dual purpose of channeling skiers into position to board lift, and keeping snow on approach ramp and off remaining portions of platform, it was undisputed that rail was visible and obvious to skiers approaching lift boarding area, claimant had skied for 20 years and had ridden chair lift several times that day, and there was no showing that state’s use of wooden rails deviated from general custom or standard in industry. Simoneau v State (1998, 3d Dept) 248 App Div 2d 865, 669 NYS2d 972.

Court properly denied defendant’s summary judgment motion in action for injuries sustained when plaintiff and defendant collided while both of them were skiing, despite defendant’s deposition testimony tending to the absolve her of any culpability for collision, where plaintiff testified at examination before trial that, at time of collision he had just reached bottom of trail and was right beside chair lift, proceeding very slowly in “an area of great caution,” preparing to go through gate to lift, and that he was struck from behind by defendant. Duncan v Kelly (1998, 3d Dept) 249 App Div 2d 802, 671 NYS2d 841.

Defendants were properly granted summary judgment where deposition testimony of decedent’s widow, plaintiff, and of decedent’s skiing companion, showed that decedent was experienced skier who had skied on trail in past; under circumstances, decedent assumed very risks that he encountered before he hit ice patch, fell, struck tree, and suffered fatal injuries while skiing. Bono v Hunter Mt. Ski Bowl, Inc. (2000, 2d Dept) 269 App Div 2d 482, 703 NYS2d 246, app den (2000) 95 NY2d 754, 711 NYS2d 833, 733 NE2d 1102.

State, as operator of ski area, had no legal duty to secure name of unidentified skier who collided with another skier so as to protect litigation interests of latter; duties of members of ski patrol who arrived to assist injured skier were directed to health and safety of injured person, and fact that members of patrol had been directed to secure names and addresses of skiers involved in collisions did not create cognizable common-law duty. Woods v New York State Olympic Regional Dev. Auth. (1996, Ct Cl) 169 Misc 2d 8, 640 NYS2d 1012.

While the operator of a ski area is subject to certain duties in order to maintain the safety of skiers on the slopes, that duty must be balanced by the assumption of risk inherent in skiing and the skier’s obligation to be aware of posted changes in a course. Sharrow v N.Y. State Olympic Reg’l Dev. Auth. (2002, Ct Cl) 193 Misc 2d 20, 746 NYS2d 531, affd (2003, 3d Dept) 307 App Div 2d 605, 762 NYS2d 703.

Plaintiffs’ complaint seeking damages for injuries sustained by one plaintiff while skiing at defendants’ skiing facility was properly dismissed, because the legislature intended to apply the term “surface or subsurface” to all of the items listed after that term, and the risks of the activity were fully comprehended by plaintiff; therefore, he assumed the inherent risk of the presence of subsurface ice. Painter v Peek’n Peak Rec., Inc. (2003, 4th Dept) 2 App Div 3d 1289, 769 NYS2d 678.

Where the injured party, while downhill skiing, fell and slid under a fence into a ravine, the owner showed that the injured party’s accident was caused by variations in terrain and ice under N.Y. Gen. Oblig. Law § 18-101(1), inherent risks in the sport of downhill skiing; the injured party, in opposition, did not raise a triable issue of fact because the injured party did not show that the fence at the edge of the ravine was a barrier, as testimony established that it was to serve as a warning to skiers. Bennett v Kissing Bridge Corp. (2005, 4th Dept) 17 App Div 3d 990, 794 NYS2d 538, affd (2005) 5 NY3d 812, 803 NYS2d 22, 836 NE2d 1144.

§ 18-102.  Definitions

The following words and phrases when used in this article shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:

1. “Lift ticket” means any item issued by a ski area operator to any skier that is intended to be affixed to the outerwear of the skier, or otherwise displayed by a skier, to signify lawful entry upon and use of the passenger tramways or ski slopes or trails maintained by the ski area operator.

2. “Passenger tramway” means a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails as defined by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.

3. “Passenger” means a person in or on or being transported by a tramway.

4. “Ski area” means all ski slopes, ski trails and passenger tramways administered as a single enterprise within this state.

5. “Ski area operator” means a person, firm or corporation, and its agents and employees, having operational and administrative responsibility for any ski area, including any agency of the state, any political subdivision thereof, and any other governmental agency or instrumentality.

6. “Skier” means any person wearing a ski or skis and any person actually on a ski slope or trail located at a ski area, for the purpose of skiing.

7. “Ski slopes and trails” mean those areas designated by the ski area operator for skiing.

HISTORY:

   Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).

NOTES:

Editor’s Notes

See 1988 note under § 18-101.

New York References:

Prevention of personal injuries in the use of ski tows, other passenger tramways and downhill ski areas, CLS Labor § 202-c

Safety in skiing code, CLS Labor § 867

NYCRR References:

Safety in skiing. 12 NYCRR §§ 54.1 et seq

Research References & Practice Aids:

3 NY Jur 2d Amusements and Exhibitions § 30

Annotations:

      Ski resort’s liability for skier’s injuries resulting from condition of ski run or slope. 55 ALR4th 632

§ 18-103.  Duties of ski area operators

   Every ski area operator shall have the following duties:

1. To equip all trail maintenance vehicles with such warning implements or devices as shall be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law. Such implements or devices shall be present and operating whenever the vehicle is within the borders of any slope or trail.

2. To post in a location likely to be seen by all skiers signs of such size and color as will enable skiers to have knowledge of their responsibilities under this article.

3. To hold employee training sessions at least once before the beginning of each season, the contents of which shall be specified by the commissioner of labor upon the recommendation of the passenger tramway advisory council, as follows:

      a. for operators of trail maintenance equipment concerning the safe operation of such vehicles in the ski area;

      b. for passenger tramway attendants concerning the safe operation of passenger tramways;

      c. for ski personnel charged with the responsibility of evacuating passengers from passenger tramways concerning proper evacuation techniques; and

      d. for all other personnel charged with on-mountain maintenance, inspection or patrol duties as to methods to be used for summoning aid in emergencies.

4. To conspicuously mark with such implements as may be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law, the location of such man-made obstructions as, but not limited to, snow-making equipment, electrical outlets, timing equipment, stanchions, pipes, 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.

5. To maintain in a central location at the ski area an information board or boards showing at a minimum the following:

      a. the location of tramways, slopes or trails;

      b. the status of each trail–open or closed;

      c. the location of emergency communications or medical equipment and sites designated by the ski area operator for receipt of notice from skiers pursuant to subdivision thirteen of this section;

      d. the relative degree of difficulty of each slope or trail (at a minimum easier, more difficult, most difficult); and

      e. the general surface condition of each slope and trail as most recently recorded in the log required to be maintained by subdivision six of this section.

6. To inspect each open slope or trail that is open to the public within the ski area at least twice a day, and enter the results of such inspection in a log which shall be available for examination by the commissioner of labor. The log shall note:

      a. the general surface conditions of such trail at the time of inspection (powder, packed powder, frozen granular, icy patches or icy surface, bare spots or other surface conditions);

      b. the time of inspection and the name of the inspector;

      c. the existence of any obstacles or hazards other than those which may arise from:

         (i) skier use;

         (ii) weather variations including freezing and thawing; or

         (iii) mechanical failure of snow grooming or emergency equipment which may position such equipment within the borders of a slope or trail.

7. To develop and maintain a written policy consistent with the regulations of the commissioner of labor upon the advice of the passenger tramway advisory council for situations involving the reckless conduct of skiers, which shall include, but not be limited to:

      a. a definition of reckless conduct; and

      b. procedures for approaching and warning skiers of reckless conduct and procedures for dealing with such skiers which may include the revocation of the lift tickets of such skiers.

8. To designate personnel to implement the ski area’s policy on reckless conduct.

9. To report to the commissioner of labor by telephone within twenty-four hours any fatality or injury resulting in a fatality at the ski area.

10. To conspicuously post and maintain such ski area signage, including appropriate signage at the top of affected ski slopes and trails, notice of maintenance activities and for passenger tramways as shall be specified by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.

11. To post in a conspicuous location at each lift line a sign, which shall indicate the degree of difficulty of trails served by that lift with signs as shall be specified by the commissioner of labor pursuant to section two hundred two-c or eight hundred sixty-seven of the labor law.

12. To ensure that lift towers located within the boundaries of any ski slope or trail are padded or otherwise protected and that no protruding metal or wood objects, such as ladders or steps, shall be installed on the uphill or side portion of lift towers within the borders of a ski slope or trail, unless such objects are below the snow line, at least six feet above it, or padded or otherwise protected with such devices as, but not limited to, the following:

      a. commercially available tower padding;

      b. air or foam filled bags;

      c. hay bales encased in a waterproof cover; or

      d. soft rope nets properly spaced from the tower.

13. To, within a reasonable amount of time after the inspection required by subdivision six of this section, conspicuously mark with such implements as may be specified by the commissioner of labor pursuant to section eight hundred sixty-seven of the labor law and to provide sufficient warning to skiers by such marking or remove such obstacles or hazards which are located within the boundaries of any ski slope or trail and were noted pursuant to paragraph c of subdivision six of this section; and to also conspicuously mark with such implements and provide such warning or remove such obstacles or hazards within a reasonable amount of time after receipt of notice by the ski area operator from any skier as to the presence of such obstacles or hazards when notice is given at sites designated by the ski area operator for such receipt and the locations of which are made known to skiers pursuant to paragraph c of subdivision five of this section.

14. To have present at all times when skiing activity is in progress, individuals properly and appropriately trained for the safe operation of on-slope vehicles; trail maintenance equipment; tramways; tramway evacuations; implementation of the reckless skier policy; first aid and outdoor rescue; and, to have present according to a schedule posted for access by skiers, by the ski area operator, personnel appropriately trained in the instruction of skiers and passengers in methods of risk reduction while using ski slopes and passenger tramways and the instruction of skiers with respect to the risks inherent in the sport.

HISTORY:

   Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).

   Sub 5, par d, amd, L 1989, ch 322, § 1, eff July 10, 1989.

NOTES:

Editor’s Notes

   See 1988 note under § 18-101.

New York References:

   Prevention of personal injuries in the use of ski tows, other passenger tramways and downhill ski areas, CLS Labor § 202-c

   Safety in skiing code, CLS Labor § 867

NYCRR References:

   Safety in skiing. 12 NYCRR §§ 54.1 et seq

Research References & Practice Aids:

   3 NY Jur 2d Amusements and Exhibitions § 30

Annotations:

      Liability for injury or death from ski lift, ski tow or similar device. 95 ALR3d 203

Case Notes:

In action against town for injuries sustained by downhill skier when, unable to stop due to ice, she struck fence post on right side of town ski trail 45 feet from trail base, Supreme Court properly denied town’s motion for summary judgment, notwithstanding correctness of town’s argument that contact with visible solid objects on perimeter of ski trail, very presence of which serve as warning, whether fence, tree or chairlift support, is among known assumed risks of skiing, where location of fence post in question was disputed, and if it were located on ski trail itself, town could be found to have failed to maintain its property in reasonably safe condition. Fabris v Town of Thompson (1993, 3d Dept) 192 App Div 2d 1045, 597 NYS2d 477.

State was liable for injuries sustained by claimant in accident that occurred in state-owned and operated ski area when claimant lost control and fell while skiing over unmarked icy patch with large bare spot, as state’s negligent failure to warn skiers of snowmaking activities which compelled them to ski on left 1/3 of trail containing dangerous condition, and failure to mark that area off in accordance with its own procedures, was sole proximate cause of claimant’s injuries; CLS Gen Oblig Art 18 did not abolish state’s common-law duty to warn of dangerous conditions, and “snow-making in progress” sign at top of slope did not relieve state of its statutory duty to warn more extensively. Sytner v State (1996, 3d Dept) 223 App Div 2d 140, 645 NYS2d 654.

Where ski resort has groomed crossovers permitting patrons to transfer from one slope to another, any signage required to be posted at top of affected slope should also be in place at crossovers. Sytner v State (1996, 3d Dept) 223 App Div 2d 140, 645 NYS2d 654.

Court of Claims properly found state not liable where wooden guide rail on which claimant fell was incidental to provision or maintenance of ski facility, serving dual purpose of channeling skiers into position to board lift, and keeping snow on approach ramp and off remaining portions of platform, it was undisputed that rail was visible and obvious to skiers approaching lift boarding area, claimant had skied for 20 years and had ridden chair lift several times that day, and there was no showing that state’s use of wooden rails deviated from general custom or standard in industry. Simoneau v State (1998, 3d Dept) 248 App Div 2d 865, 669 NYS2d 972.

Defendants were properly granted summary judgment where deposition testimony of decedent’s widow, plaintiff, and of decedent’s skiing companion, showed that decedent was experienced skier who had skied on trail in past; under circumstances, decedent assumed very risks that he encountered before he hit ice patch, fell, struck tree, and suffered fatal injuries while skiing. Bono v Hunter Mt. Ski Bowl, Inc. (2000, 2d Dept) 269 App Div 2d 482, 703 NYS2d 246, app den (2000) 95 NY2d 754, 711 NYS2d 833, 733 NE2d 1102.

State, as operator of ski area, had no legal duty to secure name of unidentified skier who collided with another skier so as to protect litigation interests of latter; duties of members of ski patrol who arrived to assist injured skier were directed to health and safety of injured person, and fact that members of patrol had been directed to secure names and addresses of skiers involved in collisions did not create cognizable common-law duty. Woods v New York State Olympic Regional Dev. Auth. (1996, Ct Cl) 169 Misc 2d 8, 640 NYS2d 1012.

§ 18-104.  Duties of passengers

   All passengers shall have the following duties:

1. To familiarize themselves with the safe use of any tramway prior to its use;

2. To remain in the tramway if the operation of a passenger tramway, as defined pursuant to section two hundred two-c of the labor law, is interrupted for any reason, until instructions or aid are provided by the ski area operator;

3. To board or disembark from passenger tramways only at points or areas designated by the ski area operator;

4. Not to eject any objects or material from a passenger tramway;

5. To use restraint devices in accordance with posted instructions;

6. To wear retention straps or other devices to prevent runaway skis;

7. Not to interfere with the operation of a passenger tramway;

8. Not to place or caused to be placed on the uphill track of a surface lift any object which may interfere with its normal operation; and

9. Not to wear loose scarves, clothing or accessories or expose long hair which may become entangled with any part of the device.

HISTORY:

   Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).

NOTES:

Editor’s Notes

   See 1988 note under § 18-101.

New York References:

   Duties of ski area operators, CLS Gen Oblig § 18-103

   Prevention of personal injuries in the use of ski tows, other passenger tramways and downhill ski areas, CLS Labor § 202-c

   Safety in skiing code, CLS Labor § 867

NYCRR References:

   Safety in skiing. 12 NYCRR §§ 54.1 et seq

Research References & Practice Aids:

   3 NY Jur 2d Amusements and Exhibitions § 30

Annotations:

      Skier’s liability for injuries to or death of another person. 24 ALR3d 1447

§ 18-105.  Duties of skiers

   All skiers shall have the following duties:

1. Not to ski in any area not designated for skiing;

2. Not to ski beyond their limits or ability to overcome variations in slope, trail configuration and surface or subsurface conditions which may be caused or altered by weather, slope or trail maintenance work by the ski area operator, or skier use;

3. To abide by the directions of the ski area operator;

4. To remain in constant control of speed and course at all times while skiing so as to avoid contact with plainly visible or clearly marked obstacles and with other skiers and passengers on surface operating tramways;

5. To familiarize themselves with posted information before skiing any slope or trail, including all information posted pursuant to subdivision five of section 18-103 of this article;

6. Not to cross the uphill track of any surface lift, except at points clearly designated by the ski area operator;

7. Not to ski on a slope or trail or portion thereof that has been designated as “closed” by the ski area operator;

8. Not to leave the scene of any accident resulting in personal injury to another party until such times as the ski area operator arrives, except for the purpose of summoning aid;

9. Not to overtake another skier in such a manner as to cause contact with the skier being overtaken and to yield the right-of-way to the skier being overtaken;

10. Not to willfully stop on any slope or trail where such stopping is likely to cause a collision with other skiers or vehicles;

11. To yield to other skiers when entering a trail or starting downhill;

12. To wear retention straps or other devices to prevent runaway skis;

13. To report any personal injury to the ski area operator before leaving the ski area; and

14. Not to willfully remove, deface, alter or otherwise damage signage, warning devices or implements, or other safety devices placed and maintained by the ski area operator pursuant to the requirements of section 18-103 of this article.

HISTORY:

   Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).

NOTES:

Editor’s Notes

   See 1988 note under § 18-101.

NYCRR References:

   Safety in skiing. 12 NYCRR §§ 54.1 et seq

Research References & Practice Aids:

   3 NY Jur 2d Amusements and Exhibitions § 30

Annotations:

      Ski resort’s liability for skier’s injuries resulting from condition of ski run or slope. 55 ALR4th 632

Case Notes:

Defendants, owners and operators of snow skiing facility, should have been granted summary judgment where injured plaintiff assumed risks inherent in downhill skiing by his voluntary participation in sport, and expert’s affidavit submitted by plaintiff failed to raise fact issue as to whether defendants unreasonably increased risks to which plaintiff was exposed. Osorio v Deer Run Assocs. 1985 (1996, 2d Dept) 231 App Div 2d 504, 647 NYS2d 93, app den (1997) 89 NY2d 808, 655 NYS2d 887, 678 NE2d 500.

In personal injury action by plaintiff who was struck from behind by defendant while both were skiing on expert trail, defendant was not entitled to summary judgment on ground that plaintiff assumed risk of dangers posed by other downhill skiers under CLS Gen Oblig § 18-101, where only eyewitness to accident (plaintiff’s skiing companion) averred that, before collision, he saw defendant skiing recklessly or out of control at speed much too fast for trail and showing total disregard for potential dangers he created to other skiers. Martin v Luther (1996, 3d Dept) 227 App Div 2d 859, 642 NYS2d 728.

Court of Claims properly found state not liable where wooden guide rail on which claimant fell was incidental to provision or maintenance of ski facility, serving dual purpose of channeling skiers into position to board lift, and keeping snow on approach ramp and off remaining portions of platform, it was undisputed that rail was visible and obvious to skiers approaching lift boarding area, claimant had skied for 20 years and had ridden chair lift several times that day, and there was no showing that state’s use of wooden rails deviated from general custom or standard in industry. Simoneau v State (1998, 3d Dept) 248 App Div 2d 865, 669 NYS2d 972.

Court properly denied defendant’s summary judgment motion in action for injuries sustained when plaintiff and defendant collided while both of them were skiing, despite defendant’s deposition testimony tending to the absolve her of any culpability for collision, where plaintiff testified at examination before trial that, at time of collision he had just reached bottom of trail and was right beside chair lift, proceeding very slowly in “an area of great caution,” preparing to go through gate to lift, and that he was struck from behind by defendant. Duncan v Kelly (1998, 3d Dept) 249 App Div 2d 802, 671 NYS2d 841.

§ 18-106.  Duties of skiers and ski area operators with respect to inherent risks

   It is recognized that skiing is a voluntary activity that may be hazardous regardless of all feasible safety measures that can be undertaken by ski area operators. Accordingly:

1. Ski area operators shall have the following additional duties:

      a. To post at every point of sale or distribution of lift tickets, whether on or off the premises of the ski area operator, a conspicuous “Warning to Skiers” relative to the inherent risks of skiing in accordance with regulations promulgated by the commissioner of labor pursuant to subdivision four of section eight hundred sixty-seven of the labor law, and to imprint upon all lift tickets sold or distributed, such text and graphics as the commissioner of labor shall similarly specify, which shall conspicuously direct the attention of all skiers to the required “Warning to Skiers”;

      b. To post at every point of sale or distribution of lift tickets at a ski area notice to skiers and passengers that this article prescribes certain duties for skiers, passengers and ski area operators, and to make copies of this article in its entirety available without charge upon request to skiers and passengers in a central location at the ski area;

      c. To make available at reasonable fees, as required by subdivision thirteen of section 18-103 of this article, instruction and education for skiers relative to the risks inherent in the sport and the duties prescribed for skiers by this article, and to conspicuously post notice of the times and places of availability of such instruction and education in locations where it is likely to be seen by skiers; and

      d. To post notice to skiers of the right to a refund to the purchaser in the form and amount paid in the initial sale of any lift ticket returned to the ski area operator, intact and unused, upon declaration by such purchaser that he or she is unprepared or unwilling to ski due to the risks inherent in the sport or the duties imposed upon him or her by this article.

2. Skiers shall have the following additional duties to enable them to make informed decisions as to the advisability of their participation in the sport:

      a. To seek out, read, review and understand, in advance of skiing, a “Warning to Skiers” as shall be defined pursuant to subdivision five of section eight hundred sixty-seven of the labor law, which shall be displayed and provided pursuant to paragraph a of subdivision one of this section; and

      b. To obtain such education in the sport of skiing as the individual skier shall deem appropriate to his or her level of ability, including the familiarization with skills and duties necessary to reduce the risk of injury in such sport.

HISTORY:

   Add, L 1988, ch 711, § 1, eff Oct 1, 1989 (see 1988 note below).

   Sub 1, par d, amd, L 1989, ch 322, § 2, eff Oct 1, 1989.

NOTES:

Editor’s Notes

   See 1988 note under § 18-101.

New York References:

   Duties of ski area operators, CLS Gen Oblig § 18-103

   Prevention of personal injuries in the use of ski tows, other passenger tramways and downhill ski areas, CLS Labor § 202-c

   Safety in skiing code, CLS Labor § 867

NYCRR References:

   Safety in skiing. 12 NYCRR §§ 54.1 et seq

Research References & Practice Aids:

   3 NY Jur 2d Amusements and Exhibitions § 30

   85 NY Jur 2d Premise Liability § 238

Annotations:

      Liability for injury or death from ski lift, ski tow or similar device. 95 ALR3d 203

Case Notes:

Defendants, owners and operators of snow skiing facility, should have been granted summary judgment where injured plaintiff assumed risks inherent in downhill skiing by his voluntary participation in sport, and expert’s affidavit submitted by plaintiff failed to raise fact issue as to whether defendants unreasonably increased risks to which plaintiff was exposed. Osorio v Deer Run Assocs. 1985 (1996, 2d Dept) 231 App Div 2d 504, 647 NYS2d 93, app den (1997) 89 NY2d 808, 655 NYS2d 887, 678 NE2d 500.

State was liable for injuries sustained by claimant in accident that occurred in state-owned and operated ski area when claimant lost control and fell while skiing over unmarked icy patch with large bare spot, as state’s negligent failure to warn skiers of snowmaking activities which compelled them to ski on left 1/3 of trail containing dangerous condition, and failure to mark that area off in accordance with its own procedures, was sole proximate cause of claimant’s injuries; CLS Gen Oblig Art 18 did not abolish state’s common-law duty to warn of dangerous conditions, and “snow-making in progress” sign at top of slope did not relieve state of its statutory duty to warn more extensively. Sytner v State (1996, 3d Dept) 223 App Div 2d 140, 645 NYS2d 654.

State, as owner and operator of ski resort, was liable for injuries sustained by claimant in accident that occurred when claimant, after crossing over from one novice trail to another, lost control and fell while skiing over large unmarked icy patch with large bare spot; although bare and icy spots, in general, are risk inherent in skiing, claimant did not assume particular risk that confronted her when snow-making “funneled” her directly onto hazardous condition. Sytner v State (1996, 3d Dept) 223 App Div 2d 140, 645 NYS2d 654.

Court properly submitted to jury issue whether language in ski pass application encompassed risk plaintiff was said to have assumed by reading, understanding, and signing ski pass application containing requisite “Warning to Skiers,” which, after enumerating number of specific dangers, also warned skiers of “other natural objects, or man-made objects that are incidental to the provision or maintenance of a ski facility in New York State,” plaintiff admitted that he had read and understood that written warning, and drainage ditch in question was necessary for maintenance of ski facility. Vanderwall v Troser Mgmt. (1997, 4th Dept) 244 App Div 2d 982, 665 NYS2d 492, app den (1998) 91 NY2d 811, 671 NYS2d 714, 694 NE2d 883.

Jury charge as to express assumption of risk was not contrary to public policy, as established by CLS Gen Oblig § 5-326, where jury could rationally have found that “Warning to Skiers” language of plaintiff’s ski pass application encompassed actual risk that caused his injury; under circumstances, statute was not implicated. Vanderwall v Troser Mgmt. (1997, 4th Dept) 244 App Div 2d 982, 665 NYS2d 492, app den (1998) 91 NY2d 811, 671 NYS2d 714, 694 NE2d 883.

Recreational use statute barred claim against state by experienced cross-country skier, who was injured while skiing on golf course in state park when he skied off 15 to 20-foot “cliff” created by 3-tiered tee area at which there were no markings or posted warnings, where, although state allowed cross-country skiing in park, budget constraints had caused it to stop designating, supervising, or maintaining any trails for that activity, it did not charge fee for cross-country skiing, and without statutory protection from liability, it would have been unable to keep entire park open during winter for specified recreational uses. Stento v State (1997, 3d Dept) 245 App Div 2d 771, 665 NYS2d 471, app den (1998) 92 NY2d 802, 677 NYS2d 72, 699 NE2d 432.

Court of Claims properly found state not liable where wooden guide rail on which claimant fell was incidental to provision or maintenance of ski facility, serving dual purpose of channeling skiers into position to board lift, and keeping snow on approach ramp and off remaining portions of platform, it was undisputed that rail was visible and obvious to skiers approaching lift boarding area, claimant had skied for 20 years and had ridden chair lift several times that day, and there was no showing that state’s use of wooden rails deviated from general custom or standard in industry. Simoneau v State (1998, 3d Dept) 248 App Div 2d 865, 669 NYS2d 972.

Defendants were properly granted summary judgment where deposition testimony of decedent’s widow, plaintiff, and of decedent’s skiing companion, showed that decedent was experienced skier who had skied on trail in past; under circumstances, decedent assumed very risks that he encountered before he hit ice patch, fell, struck tree, and suffered fatal injuries while skiing. Bono v Hunter Mt. Ski Bowl, Inc. (2000, 2d Dept) 269 App Div 2d 482, 703 NYS2d 246, app den (2000) 95 NY2d 754, 711 NYS2d 833, 733 NE2d 1102.

Skier who was injured when he encountered a bare spot and ran into a fence bordering the trail he was on assumed the risk of his injuries because he was an experienced skier, had been warned that the day’s conditions included the possibility of bare spots, and the fence was an open and obvious condition incidental to the provision and maintenance of the ski area. Hyland v State (2002, 3d Dept) 300 App Div 2d 794, 752 NYS2d 113, app den (2003) 100 NY2d 504, 762 NYS2d 874, 793 NE2d 411.

§ 18-107.  Construction

   Unless otherwise specifically provided in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law.

HISTORY:

   Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).

NOTES:

Editor’s Notes

   See 1988 note under § 18-101.

NYCRR References:

   Safety in skiing. 12 NYCRR §§ 54.1 et seq

Research References & Practice Aids:

   3 NY Jur 2d Amusements and Exhibitions § 30

Matthew Bender’s New York Civil Practice:

      3 Rohan, New York Civil Practice: EPTL P 5-4.2

Annotations:

      Skier’s liability for injuries to or death of another person. 24 ALR3d 1447

Case Notes:

In action by plaintiff who was injured while taking ski lessons from defendants, allegedly as result of failure of defective and unsafe rental equipment, court properly granted summary judgment to defendants based on clear evidence that they had no involvement in renting, adjustment or maintenance of ski equipment furnished to plaintiff; by voluntarily participating in sport of skiing, plaintiff was held to have assumed risks inherent in that sport. Jordan v Maple Ski Ridge (1996, 3d Dept) 229 App Div 2d 756, 645 NYS2d 598.

State, as operator of ski area, had no legal duty to secure name of unidentified skier who collided with another skier so as to protect litigation interests of latter; duties of members of ski patrol who arrived to assist injured skier were directed to health and safety of injured person, and fact that members of patrol had been directed to secure names and addresses of skiers involved in collisions did not create cognizable common-law duty. Woods v New York State Olympic Regional Dev. Auth. (1996, Ct Cl) 169 Misc 2d 8, 640 NYS2d 1012.

§ 18-108.  Severability

   If any provision of this article or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of this article that can be given effect without the invalid provision or application, and to this end the provisions of this article are declared to be severable.

HISTORY:

   Add, L 1988, ch 711, § 1, eff Nov 1, 1988 (see 1988 note below).

NOTES:

Editor’s Notes

   See 1988 note under § 18-101.

NYCRR References:

   Safety in skiing. 12 NYCRR §§ 54.1 et seq

Research References & Practice Aids:

   3 NY Jur 2d Amusements and Exhibitions § 30

§ 867.  Safety in skiing code

   1. The [fig 1] commissioner, on the advice of the passenger tramway advisory council as created pursuant to section twelve-c of this chapter, shall promulgate rules and regulations, consistent with article eighteen of the general obligations law, intended to guard against personal injuries to downhill skiers which will, in view of such intent, define the duties and responsibilities of downhill skiers and the duties and responsibilities of ski area operators.

2. The commissioner shall enforce all the provisions of this article and the regulations adopted pursuant hereto and may issue such orders against any entity, public or private, as he finds necessary, directing compliance with any provision of this article or such regulations. The commissioner may also investigate any fatality or injury resulting in a fatality at a ski area.

3. The passenger tramway advisory council shall conduct any investigation necessary to carry out the provisions of this [fig 1] article.

4. The passenger tramway advisory council shall conduct public hearings on any rules and regulations proposed under this section prior to their promulgation by the [fig 1] commissioner. The passenger tramway advisory council shall fix a time and place for each such hearing and cause such notice as it may deem appropriate to be given to the public and news media prior to such a hearing. Testimony may be taken and evidence received at such a hearing pursuant to procedures prescribed by the passenger tramway advisory council.

5. Upon advice of the passenger tramway advisory council, the commission shall, on the fifteenth day of March, nineteen hundred eighty-nine, promulgate rules which shall set forth specifications for the uniform textual and graphic content, physical description, and conspicuous posting of a “Warning to Skiers” regarding the risks inherent in the sport as set forth in section 18-101 of the general obligations law, which shall be posted and provided to skiers by ski areas operators in accordance with subdivision one of section 18-106 of the general obligations law, and shall promulgate rules which shall set forth textual and graphic specifications designed to occupy not more than twenty-five percent of the imprintable surface area of the face side nor more than eighty percent of the imprintable surface area of the reverse side or backing paper of all lift tickets sold or distributed in the state, as defined by section 18-102 of the general obligations law, which shall uniformly serve to direct the attention of all skiers to the “Warning to Skiers” herein directed to be promulgated and required by section 18-106 of the general obligations law.

HISTORY:

   Add, L 1978, ch 338, § 1, eff June 19, 1978.

   Amd, L 1988, ch 711, § 3, eff Nov 1, 1988 (see 1988 note below).

   Sub 1, amd, L 1988, ch 711, § 3, eff Nov 1, 1988 (see 1988 note below).

   The 1988 act deleted at fig 1 “industrial”.

   Sub 2, add, L 1988, ch 711, § 3, eff Nov 1, 1988 (see 1988 note below).

   Former sub 2, redesignated sub 3, L 1988, ch 711, § 3, eff Nov 1, 1988 (see 1988 note below).

   Sub 3, formerly sub 2, so redesignated and amd, L 1988, ch 711, § 3, eff Nov 1, 1988 (see 1988 note below).

   The 1988 act deleted at fig 1 “act”.

   Former sub 3, redesignated sub 4, L 1988, ch 711, § 3, eff Nov 1, 1988 (see 1988 note below).

   Sub 4, formerly sub 3, so redesignated and amd, L 1988, ch 711, § 3, eff Nov 1, 1988 (see 1988 note below).

   The 1988 act deleted at fig 1 “industrial”.

   Former sub 4, deleted, L 1988, ch 711, § 3, eff Nov 1, 1988 (see 1988 note below).

   Sub 5, add, L 1988, ch 711, § 3, eff Nov 1, 1988 (see 1988 note below).

NOTES:

Editor’s Notes

Laws 1988, ch 711, § 4 , eff Nov 1, 1988, provides as follows:

   § 4. This act shall take effect on November first, nineteen hundred eighty-eight; provided that section 18-106 of the general obligations law, as added by section one of this act, shall take effect on the first day of October, nineteen hundred eighty-nine; and provided further that the commissioner of labor, effective immediately, is authorized and directed to promulgate any and all rules and regulations necessary to the timely implementation of the provisions of this act on their effective dates.

New York References:

   Passenger tramway advisory council, § 12-c

   Legislative purpose, CLS Gen Oblig § 18-101

   Definitions, CLS Gen Oblig § 18-102

   Duties of skiers and ski area operators with respect to inherent risks, CLS Gen Oblig § 18-106

NYCRR References:

   Ski tows and other passenger tramways. 12 NYCRR §§ 32.1 et seq

   Safety in skiing. 12 NYCRR §§ 54.1 et seq

 

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