Skier assumes the risk on a run he had never skied before because his prior experience.
Posted: June 12, 2017 Filed under: Assumption of the Risk, New York, Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Black Diamond, depression, Downhill, Oak Mountain, risk of injury, Ski, ski area, skied, skiing, skill, Skis, Sport, Summary judgment, Trail Leave a commentAssumption 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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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
Posted: June 6, 2017 Filed under: Assumption of the Risk, Legal Case, New York, Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Black Diamond, depression, Downhill, Oak Mountain, risk of injury, Ski, ski area, skied, skiing, skill, Skis, Sport, Summary judgment, Trail Leave a commentSchorpp 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
Ron W. Schorpp et al., Respondents, v Oak Mountain, LLC, et al., Appellants.
522405
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
143 A.D.3d 1136; 39 N.Y.S.3d 296; 2016 N.Y. App. Div. LEXIS 6784; 2016 NY Slip Op 06932
October 20, 2016, Decided
October 20, 2016, Entered
COUNSEL: [***1] Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly of counsel), for appellants.
Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M. Califano of counsel), for respondents.
JUDGES: Before: Peters, P.J., McCarthy, Garry, Clark and Aarons, JJ. Peters, P.J., McCarthy, Garry and Clark, JJ., concur.
OPINION BY: Aarons
OPINION
[*1136] [**296] Aarons, J.
MEMORANDUM AND ORDER
Appeal from an order of the Supreme Court (Sise, J.), entered November 5, 2015 in Fulton County, which denied defendants’ motion for summary judgment dismissing the complaint.
Plaintiff Ron W. Schorpp, a self-described “expert skier,” was [*1137] injured while skiing down a trail at defendant Oak Mountain Ski Center (hereinafter Oak Mountain), which is operated by defendant Oak Mountain, LLC in the Village of Speculator, Hamilton County. Schorpp testified that an Oak Mountain employee recommended [**297] a black-diamond trail to him. Schorpp and his daughter planned to ski down this trail and meet his wife and other children at a subsequent juncture of trails. Approximately three quarters of the way down the trail, Schorpp skied into a “depression” that was filled with snow. The skis got caught in the depression causing Schorpp to flip over and fall out of his skis. Schorpp, and [***2] his wife derivatively, subsequently commenced this negligence action against defendants. Following joinder of issue and discovery, defendants moved for summary judgment. Supreme Court denied the motion and defendants now appeal. We reverse.
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” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; see Martin v State of New York, 64 AD3d 62, 63-64, 878 N.Y.S.2d 823 [2009], lv denied 13 NY3d 706, 915 N.E.2d 1181, 887 N.Y.S.2d 3 [2009]; Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 958, 862 N.Y.S.2d 626 [2008]). Regarding downhill skiing, an individual “assumes the inherent risk of personal injury caused by ruts, bumps or variations in the conditions of the skiing terrain” (Ruepp v West Experience, 272 AD2d 673, 674, 706 N.Y.S.2d 787 [2000]; see General Obligations Law § 18-101; Hyland v State of New York, 300 AD2d 794, 794-795, 752 N.Y.S.2d 113 [2002], lv denied 100 NY2d 504, 793 N.E.2d 411, 762 N.Y.S.2d 874 [2003]; Dicruttalo v Blaise Enters., 211 AD2d 858, 859, 621 N.Y.S.2d 199 [1995]). The application of the assumption of risk doctrine must be measured “against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]; see Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607, 762 N.Y.S.2d 703 [2003]).
We conclude that defendants satisfied their moving burden by demonstrating that Schorpp assumed the risk of injury associated with downhill skiing (see Jordan v Maple Ski Ridge, 229 AD2d 756, 757, 645 N.Y.S.2d 598 [1996]). 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. [***3] 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 (see Painter v Peek’N Peak Recreation, 2 AD3d 1289, 1289-1290, 769 N.Y.S.2d 678 [2003]; Ruepp v West Experience, 272 AD2d at 674; Giordano v Shanty [*1138] Hollow Corp., 209 AD2d 760, 761, 617 N.Y.S.2d 984 [1994], lv denied 85 NY2d 802, 648 N.E.2d 792, 624 N.Y.S.2d 372 [1995]; Calabro v Plattekill Mt. Ski Ctr., 197 AD2d 558, 559, 602 N.Y.S.2d 655 [1993], lv denied 83 NY2d 754, 634 N.E.2d 979, 612 N.Y.S.2d 378 [1994]). In opposition, plaintiffs failed to raise an issue of fact as to whether defendants concealed or unreasonably increased the risks to which Schorpp was exposed (see Sontag v Holiday Val., Inc., 38 AD3d 1350, 1351, 832 N.Y.S.2d 705 [2007]; Ruepp v West Experience, 272 AD2d at 674). Accordingly, Supreme Court erred in denying defendants’ motion for summary judgment.
Peters, P.J., McCarthy, Garry and Clark, JJ., concur.
ORDERED that the order is reversed, on the law, with costs, and motion granted.
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