ACCIDENT CLAIM BY INJURED SKIER DISMISSED BASED ON OUR OLD FRIEND "ASSUMPTION OF THE RISK"

Court: Supreme Court, Appellate Division, First Department, New York

Case: Clarke v. Catamount Ski Area

Date: Sept. 27, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens accident lawyer)

Comment:

Two skiers collide in an accident. One defendant was a skier, supposedly skiing recklessly. The other defendant was the operator of the slope, and we can=t tell from this opinion what he supposedly did wrong.

Summary judgment was granted based on our old friend "assumption of the risk." We don't really know how carelessly either defendant acted in violating any duty they may have owed to the plaintiff/skier. Also, the Court wouldn't consider the papers submitted by plaintiff's expert in opposition to the summary judgment motion -- a generally accepted, but bullcrap rule -- and, of course, it would still have been helpful to know what plaintiff's expert said, even though the expert's findings were disregarded by the court.

*****************************************************************

RELATED POSTS:

DOWNHILL SKIING ACCIDENT CASE DISMISSED ON SUMMARY JUDGMENT DUE TO "ASSUMPTION OF THE RISK" (Posted by Queens accident lawyer Gary E. Rosenberg on Oct 16, 2011)

*****************************************************************

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered June 3, 2010, which, to the extent appealed from as limited by the briefs, granted defendant Catamount Development Corporation's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Order, same court and Justice, entered June 10, 2011, which granted the Lang defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff seeks damages for injuries he suffered when he and defendant Zack Lang collided while skiing at an area operated by defendant Catamount Development Corporation. This accident was the result of inherent risks in downhill skiing (see General Obligations Law Sec. 18-101). Defendants made prima facie showings of entitlement to judgment as a matter of law based on the doctrine of assumption of risk; plaintiff admitted awareness of the inherent risks of downhill skiing and defendants submitted proof that they did not enhance such risks (see Farone v. Hunter Mtn. Ski Bowl, Inc., 51 A.D.3d 601, 859 N.Y.S.2d 64 [2008], lv. denied 11 N.Y.3d 715, 873 N.Y.S.2d 532, 901 N.E.2d 1286 [2009]; Whitman v. Zeidman, 16 A.D.3d 197, 791 N.Y.S.2d 54 [2005] ).

In opposition, plaintiff failed to raise an issue of fact. Plaintiff's speculative deposition testimony as to the reckless nature of Zack's skiing at the time of the collision is insufficient to defeat the motion for summary judgment. Further, the court properly declined to consider the affidavit of plaintiff's expert, given that plaintiff failed to timely disclose the expert's identity (see Harrington v. City of New York, 79 A.D.3d 545, 546, 913 N.Y.S.2d 81 [2010] ). In any event, the conclusory affidavit is insufficient to raise an issue of fact as to whether defendants unreasonably increased the risks to which plaintiff was exposed (see Bedder v. Windham Mtn. Partners, LLC, 86 A.D.3d 428, 927 N.Y.S.2d 47 [2011]; Bono v. Hunter Mtn. Ski Bowl, 269 A.D.2d 482, 703 N.Y.S.2d 246 [2000], lv. denied 95 N.Y.2d 754, 711 N.Y.S.2d 833, 733 N.E.2d 1102 [2000] ).

Categories