Good record keeping proves defendant ski area did not operate lift improperly

Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

Plaintiff’s case is hard to prove when two other people exit the lift properly from the same chair.

Plaintiff was riding a triple lift at the defendant’s ski area with her nine-year-old son and her ex-husband. She became entangled with her son’s skis and remained on the lift after her son, and ex-husband exited the lift. She then exited the lift before the lift hit the safety gate, falling and injuring herself.

A safety gate is a trip mechanism which stops the lift because a rider still on the lift trips it. It is designed to stop the lift if someone fails to exit the lift.

The plaintiff was an experienced intermediate skier. She owned her own skis, and boots had skied more than fifty times and had ridden the lift twice the day she was injured.

After the accident, the plaintiff completed and signed an “incident report form.” The form indicated she had stayed on the lift to allow her son to get off the lift. When she jumped she jumped 6 feet and landed on her left hip.

Prior to the accident, the lift was inspected by the New York Department of Labor and found to be in good condition. The lift met all standards as developed by ANSI (American National Standards Institute). The standards say a triple (obviously fixed grip) chair lift can travel a maximum of five hundred feet per minute (5 miles per hour). This lift was traveling between 400 and 500 feet per minute at the time.

The lift attendant’s daily log was up to date and indicated that everything was operating correctly on the lift. The lift

…fully checked on that date to ensure that all systems were working properly. The stops switches and safety gate were working, the ramps were snow covered and at a proper grade, the phones were working properly and the counter weight on the lift was clear and within normal limits.

One key point the court pointed out was simple. The plaintiff’s husband and son exited the lift with no problems. If the lift was not operating correctly they should have had problems getting off the lift also.

Summary of the case

The court reviewed the defenses and found that nothing was wrong with the lift. The plaintiff did not have an expert witness or any witness who could testify that the lift failed to operate properly. The court quickly dismissed the plaintiff’s claims that the lift failed to operate properly, and the ski area failed to operate the lift properly.

The claims were not supported by the plaintiff with any evidence.

The court looked at the New York statutes concerning skiing GOL §18-102 and GOL §18-104. The NY statute GOL §18-102 covers the duties of passengers who requires a passenger to familiarize themselves with the safe use of any lift prior to using it. GOL §18-104 states

A ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including the risks associated with the use of a chair lift when the participant is aware of, appreciates and voluntarily assumes the risk.

The court found that the plaintiff failed to comply with the requirements of the skiing code by disembarking at the appropriate location and therefore, assumed the risk of her accident.

The plaintiff’s final argument was a prior case that had been sent back to the trial court because the lift attendant had failed to stop the lift when a mother and son’s ski equipment became entangled. In that case, the court found the son had been yelling and was excited. The plaintiff’s expert witness testified that there was time for the lift attendant to see the child in distress and stop the lift.

Here the court found that no one had indicated to the lift attendant that there were in distress so therefore the lift attendant had no obligation to stop the lift.

So Now What?

The ski area followed all standards and kept great records concerning the lift. The records proved that nothing was wrong with the lift at the time of the accident.

The ski area could prove, through records that it exceeded the requirements or standards for training lift attendants.

Finally, the plaintiff simply failed to present any evidence that the defendant had breached any duty to it.

Simply put, if you have a requirement to keep records, you better do an excellent job of keeping records. The resort’s records were up to date and covered every claim the plaintiff argued.

 

Plaintiff: Christina J. Tone and Steven Tone

 

Defendant: Song Mountain Ski Center and South Slope Development Corp. and their Agents, Servants and Employees, and Peter Harris, Individually and d/b/a Song Mountain Ski Center, and Individually as a member, officer, share-holder and director of South Slope Development Corp. and Song Mountain Ski Center

 

Plaintiff Claims: defendant failed to operate the lift correctly and the lift did not operate correctly and the lift attendants were not properly trained.

 

Defendant Defenses: Lift operated and was designed correctly and plaintiff assumed the risk.

 

Holding: Summary judgment granted for the defendant.

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Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

Tone v. Song Mountain Ski Center, et al., 37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

Christina J. Tone and Steven Tone, Plaintiffs, against Song Mountain Ski Center and South Slope Development Corp. and their Agents, Servants and Employees, and Peter Harris, Individually and d/b/a Song Mountain Ski Center, and Individually as a member, officer, shareholder and director of South Slope Development Corp. and Song Mountain Ski Center, Defendants.

2009-7913

SUPREME COURT OF NEW YORK, ONONDAGA COUNTY

37 Misc. 3d 1217A; 2012 N.Y. Misc. LEXIS 5136; 2012 NY Slip Op 52069U

November 2, 2012, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: lift, chair lift, attendant, skis, skier, mountain, chairlift, skiing, triple, gate, inspection, ski lift, ski area, training, riding, slowed, feet, ramp, snow, speed, deposition testimony, issue of fact, deposition, ex-husband, passenger, downhill, tramway, sport, safe, top

HEADNOTES

[*1217A] Negligence–Assumption of Risk–Skier Injured on Chair Lift.

COUNSEL: [**1] For Plaintiffs: MICHELLE RUDDEROW, ESQ., OF WILLIAMS & RUDDEROW, PLLC.

For Defendants: MATTHEW J. KELLY, ESQ., OF ROEMER, WALLENS, GOLD & MINEAUX, LLP.

JUDGES: Donald A. Greenwood, Supreme Court Justice.

OPINION BY: Donald A. Greenwood

OPINION

The defendants have moved for summary judgment dismissal of the complaint against them, which alleges that the plaintiff suffered a fractured hip at Song Mountain on February 25, 2007 while attempting to exit a chair lift. The defendants move for dismissal on the grounds that all of the evidence shows that the ski lift was properly designed and operated and that the plaintiff assumed the risk of her injury.

As the proponent of the motion, the defendants are required to establish their entitlement to dismissal as a matter of law through the tender of admissible evidence. See, Hunt v. Kostarellis, 27 AD3d 1178, 810 N.Y.S.2d 765 (4th Dept. 2006). The defendants have done so here through their [***2] reliance, inter alia, on the plaintiff’s deposition testimony. The plaintiff testified that she was skiing with her nine year old son at the time and that she was an intermediate level skier with approximately fifteen years of experience. She owned her own skis and boots and had skied more than fifty times. [**2] On the date of the accident, she took two runs down the mountain and on both occasions rode the triple chair lift without incident. On her third occasion up the mountain she again rode the triple chair lift. Her son was with her, as was her ex-husband. Plaintiff testified that she sat on the right side of the chair, her son sat in the middle and the ex-husband sat on the left side. According to plaintiff, while riding up the chair lift she noticed that her skis were crossed with her son’s skis, so she let her son get off the chair lift first. Her ex-husband also got off the chair lift, but plaintiff waited. During her deposition, the plaintiff was shown the “Incident Report Form” completed at the time, which she signed. The form indicates that plaintiff said that she let her son get off first because their skis were crossed and that “I waited too late, and when I jumped approximately 6 feet, landed on my left hip.” When asked at her deposition what she did after her son got off, she responded that she did not remember, that she did not recall trying to get off, but that it happened so quickly that when the chairlift made its turn she “just flew off.”

The defendants also rely upon an [**3] inspection report completed by the Department of Labor on December 12, 2006, two months before the accident. An inspection of the chairlift was conducted by the Industry Inspection Bureau. Two violations unrelated to the design of the lift or exit ramp were found at that time and two unrelated violations were subsequently determined. Defendants note, however, that no deficiencies were found with respect to the design of the lift or exit ramp, the speed of the lift, or the location of the safety gate on the lift.

In addition, the defendants rely upon New York State regulations referenced in the Department of Labor inspections and standards promulgated by the American National Standards Institute which address industry wide safety standards for a variety of products and industries. Those regulations provide that the maximum relative carrier speed in feet per minute for chair lifts states that a triple chairlift carrying skiers may travel at a maximum speed of five hundred feet per minute. Defendants also provide an affidavit of Peter Harris, the President of South Slope Development Corporation, the operator of Song Mountain. Harris indicates that the chairlift traveled at a maximum speed [**4] of four hundred to five hundred feet per minute, which is equal to less than five miles per hour. He also claims that plaintiff failed to depart from the chairlift at the appropriate time, despite being warned by the unload signs. In addition, he indicates that the lift has certain safety mechanisms and if the plaintiff was to stay on the lift as it turned around the bull wheel heading downhill, her skis would hit the safety gate, which would stop the lift and allow for a safe evacuation of the lift. Plaintiff instead jumped from the lift before the safety gate, resulting in her being injured. He notes that the design of the lift specifically would have prevented the injury if she had remained on it, and the fact that the lift operated property is demonstrated by the fact that of the three people on the lift, two of them exited the lift in accordance with proper procedure and were not injured.

Defendants have also established in the first instance that any argument that the lift attendants were not properly trained is without merit, since Harris testified at his deposition that Song Mountain uses an industry standard lift operating training program designed by the National Ski Areas [**5] Association and that the program includes an in depth training DVD, training [***3] manuals and tests. The defendants also rely upon the deposition testimony of Carl Blaney, a long time attendant, who testified that the lift attendants took annual quizzes prior to the start of the season in order to demonstrate that they understood their duties in operating the lifts. It is also argued that plaintiff’s contention that the lift should have been slowed because plaintiff’s nine year old son was riding is incorrect. Blaney testified that the lift would not have been slowed for that reason, nor is there any evidence that simply because a child is riding the lift that it should be slowed. Defendants also point to the lift attendant’s daily log for the date of the accident, which demonstrates that the triple chair lift was fully checked on that date to ensure that all systems were working properly. The stops switches and safety gate were working, the ramps were snow covered and at a proper grade, the phones were working properly and the counter weight on the lift was clear and within normal limits. It is argued that since all of the evidence demonstrates that the lift was operating properly, the [**6] cause of the accident was solely plaintiff’s failure to disembark at the appropriate location, followed by her failure to remain seated once she missed the off load ramp. The defendants have met their burden in establishing that since there is no evidence that they improperly maintained the ski lift or that it was negligently designed, plaintiff cannot make a showing that the risks to her were increased or hidden. See, Sontag v. Holiday Valley, Inc., 38 AD3d 1350, 832 N.Y.S.2d 705 (4th Dept. 2007); see also, Painter v. Peek’n Peak Recreation, Inc., 2 AD3d 1289, 769 N.Y.S.2d 678 (4th Dept. 2003).

The defendants have also met their burden in the first instance of establishing that the plaintiff assumed the risk of her injury. Defendants point to the General Obligations Law, which addresses safety in skiing. The triple chair lift is identified as a “passenger tramway”, 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… See, GOL §18-102. Under “duties of passengers” the following are listed: to familiarize themselves with the safe use of any tramway prior to its use and…to board or disembark from passenger tramways only at [**7] points or areas designated by the ski area operator. See, GOL §18-104; see also, 12 NYCRR 54.4(a). A ski area operator is relieved from liability for risks inherent in the sport of downhill skiing, including the risks associated with the use of a chair lift when the participant is aware of, appreciates and voluntarily assumes the risk. See, DeLacy v. Catamount Development Corp., 302 AD2d 735, 755 N.Y.S.2d 484 (3rd Dept. 2003). In assessing whether one injured in the course of participating in a sporting or recreational event has assumed the risk posed by an assuredly dangerous condition, the critical inquiry is whether that condition is unique, constituting a hazard over and above the usual dangers that are inherent in the sport. See, Simoneau v. State of New York, 248 AD2d 865, 669 N.Y.S.2d 972 (3rd Dept. 1998), citing, Morgan v. State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997). Defendants have established that plaintiff was an experienced skier and had skied extensively at Song Mountain. It is further argued that the plaintiff assumed the risk of her injury by failing to comply with the requirements of the safety and skiing code by disembarking at the appropriate location. Plaintiff testified that she failed to get off the lift [**8] at the dismount area and had she stayed on she would have tripped the safety gate, which would have stopped the lift automatically. Inasmuch as the defendants have met their burden in the first instance, the burden shifts to the plaintiff to raise an [***4] issue of fact. See, Hunt, supra.

The plaintiff points to a recent Fourth Department case where the plaintiff skier was riding a chair lift with her son, a snow boarder. Plaintiff’s skis became entangled with the snow board and her son panicked and began yelling that he could not untangle the skis, despite frantic attempts. See, Miller v. Holiday Valley, Inc., 85 AD3d 1706, 925 N.Y.S.2d 785 (4th Dept. 2011). Plaintiff’s son exited the lift, but he pulled the plaintiff out of the lift chair in the process and she was injured. See, id. Plaintiff alleged that the top lift attendant should have slowed or stopped the lift because she and her son reached the unloading area. See, id. The court found that a question of fact existed as to whether the alleged failure to operate the ski lift in a safe manner was a proximate cause of the accident. See, id. In so finding, the court noted plaintiff’s deposition testimony that her son was yelling and making frantic attempts [**9] to untangle the skis and snow board and that plaintiff’s expert relied on that testimony in concluding that “the top lift attendant had sufficient time to observe plaintiff’s distress and to engage in what defendant’s night lift operation supervisor characterized as the exercise of judgment to slow or stop the lift.” Id. Defendants correctly argue that there is no evidence in the present case that plaintiff and her son caused any type of commotion prior to reaching the unloading area or tried to alert the attendant in any way for the top lift attendant to have noticed they were having any difficulty. The plaintiff has failed to come forward with proof in admissible form as in Miller, supra. that either the ski lift operator saw or should have seen that the plaintiff was in distress. Nor does plaintiff provide an expert opinion that based upon the facts here, the operator had time to take an action that would have prevented plaintiff’s fall. Plaintiff has likewise failed to raise an issue of fact as to whether she assumed the risk of her injury. Plaintiff does not dispute her experience as a skier or that she was familiar with the subject lift, as required by law. See, GOL §18-104; see [**10] also, 12 NYCRR §54.4. Nor has she submitted evidence to raise an issue of fact as to whether the defendants “created a dangerous condition over and above the usual dangers inherent in the sport of [downhill skiing]” Bennett v. Kissing Bridge Corporation, 17 AD3d 990, 794 N.Y.S.2d 538 (4th Dept. 2005), quoting, Owen v. RJS Safety Equip., 79 NY2d 967, 591 N.E.2d 1184, 582 N.Y.S.2d 998 (1992); see also, Miller, supra, quoting, Sontag, supra.

The plaintiff has also failed in her burden with respect to whether the lift attendants were properly trained, and in fact points to the National Ski Area’s Association Training completed by defendant’s employees. Nor has the plaintiff raised an issue as to whether the lift was properly operating on the day of the accident. Plaintiff has not disputed the inspection reports or the defendants’ compliance with the requisite regulations.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the defendant’s motion for summary judgment dismissal is granted.

ENTER

Dated: November 2, 2012

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice [***5]

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