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The New York Court found the injuries received by the Plaintiff, there was an inference that the collision was violent.

Snowboarder standing at the base of the hill talking was injured when a skier struck here when he could not stop.

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

State: New York; Supreme Court of New York, Appellate Division, First Department

Plaintiff: Keri Horowitz

Defendant: Ethan Chen

Plaintiff Claims: Negligence

Defendant Defenses: Inherent Risk

Holding: For the Plaintiff

Year: 2016

Summary

The entire case resolves around two issues. The inherent risks of skiing do not include standing at the bottom of the hill and getting hit when just talking and the plaintiff’s injuries were so bad; she was obviously hit by the defendant at a high rate of speed.

Facts

The facts are best described by the court.

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably in-creased risk

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

A very simple case. When a skier is skiing out of control at a high rate of speed in the beginner area and knows he has limited ability to stop, is he liable if he hits someone standing in the beginner area. This court said yes.

Collisions are an inherent risk of skiing in New York. However, as here, the collision could not be expected. The plaintiff was not skiing, was barely “on the slope” and was still hit by a skier.

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.

The court found that those factors possibly gave rise to reckless conduct. Reckless conduct is not an inherent risk of skiing.

The supporting statement the court made about reckless conduct is interesting. The court found the injuries the plaintiff received could also infer the plaintiff was skiing recklessly.

Furthermore, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.

Rarely are the injuries to the plaintiff ruled as indicative of something other than the injuries the plaintiff received unless an expert opines that the injuries could only have occurred by something specific happening. Meaning an expert witness is required to say that an injury that bad meant the defendant was traveling so fast.

So Now What?

It’s really hard to argue with this decision. When you get to the bottom of the hill, you should be slowing down and under control. Here the defendant was not doing either and hit the plaintiff. No one skiing could expect to be hit when standing at the bottom of the ski area. Consequently, a collision like that is not an inherent risk of skiing.

What do you think? Leave a comment.

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Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

Horowitz v Chen, 141 A.D.3d 410; 35 N.Y.S.3d 60; 2016 N.Y. App. Div. LEXIS 5179; 2016 NY Slip Op 05335

Keri Horowitz, Respondent, v Ethan Chen, Appellant.

1649, 152242/14

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

July 5, 2016

July 5, 2016, Entered

PRIOR HISTORY: Horowitz v Chen, 2015 N.Y. Misc. LEXIS 4314, 2015 NY Slip Op 32238(U) (N.Y. Sup. Ct., Nov. 20, 2015)

CORE TERMS: skiing, reckless conduct, snowboarding, reckless, beginner’s, slope, speed

HEADNOTES

Negligence–Assumption of Risk–Skiing and Snowboarding Accident–Possibility of Reckless Conduct by Defendant

COUNSEL: [***1] Law Offices of Michael E. Pressman, New York (Stuart B. Cholewa of counsel), for appellant.

Gersowitz Libo & Korek, P.C., New York (Michael Chessa of counsel), for respondent.

JUDGES: Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ.

OPINION

[*410] [**61] Order, Supreme Court, New York County (Robert D. Kalish, J.), entered November 24, 2015, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk” (Pantalone v Talcott, 52 AD3d 1148, 1149, 861 NYS2d 166 [3d Dept 2008]).

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented. Furthermore, in view of the [***2] significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances (see Moore v Hoffman, 114 AD3d 1265, 980 NYS2d 684 [4th Dept 2014]). Concur–Sweeny, J.P., Acosta, Kapnick and Kahn, JJ. [Prior Case History: 2015 NY Slip Op 32238(U).]