Skier assumes the risk on a run he had never skied before because his prior experience.

Assumption of the risk is a bar to claims of negligence in New York for injuries a skier receives at the ski area because of his experience as an expert skier.

Schorpp et al., Respondents, v Oak Mountain, LLC, et al., 143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932

State: New York, Supreme Court of New York, Appellate Division, Third Department

Plaintiff: Ron W. Schorpp and his wife

Defendant: Oak Mountain, LLC, et al.

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant ski area

Year: 2016

The plaintiff was a self-described expert skier who had been skiing at the defendant resort weekly and had been skiing for decades. This was the plaintiff’s first time on the particular black diamond run however. The ski run had been recommended to the plaintiff ha by an employee of the defendant.

While skiing the recommended run the plaintiff skied into a depression causing him to flip over and out of his skis suffering injury.

The defendant filed a motion for summary judgment based on assumption of the risk, which the trial court denied. The defendant appealed that ruling resulting in this decision.

Analysis: making sense of the law based on these facts.

The appellate court reviewed the definition of assumption of the risk under New York law.

Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity “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

That assumption of the risk definition when applied to skiing had been defined by another court to include the risk “caused by ruts, bumps or variations in the conditions of the skiing terrain.” Further, assumption of risk is measured against the skill and experience of the particular plaintiff. In this case the plaintiff had decades of experience.

Although this was his first time on the particular black-diamond trail, Schorpp had “decades of skiing experience” and had skied at Oak Mountain on a weekly basis prior to his accident. Taking into account his experience and skill level, Schorpp was aware of the risk of injury that could be caused by the depression on the ski slope

As such the plaintiff assumed the risk of his injuries. The appellate court granted the defendant’s motion for summary judgment based on assumption of the risk.

So Now What?

Assumption of the risk is making a comeback. Once gone when it was merged into contributory negligence, courts are bringing it back to eliminate claims prior to trial. If you assume the risk of your injuries you should not have the opportunity to go to trial.

One argument that was not raised was negligent information or detrimental reliance on the statement or recommendation of the particular run by the ski area employee. The plaintiff did not argue he was injured because he followed the negligent advice of the employee of the defendant

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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law      James H. Moss

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