DOWNHILL SKIING ACCIDENT CASE DISMISSED ON SUMMARY JUDGMENT DUE TO "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 Queens; Queens injury lawyer)

Comment: Another accident case dismissed for "assumption of the risk." Plaintiff/accident victim " assumed the risk" that was part of the sport he was engaged in; here it was downhill skiing. Therefore, defendant can’t be held responsible for plaintiff’s injury and this case is dismissed on summary judgment.

I’m always appalled at the waste of time, money and effort by lawyers that don’t understand the law.

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 § 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] ).

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