Casey v. Olympic Reg'l Dev. Auth.
| Decision Date | 21 June 2019 |
| Docket Number | 126115 |
| Citation | 65 Misc.3d 659,106 N.Y.S.3d 743 |
| Parties | In the Matter of the Claim of David F. CASEY and Janice Casey, Claimants, v. OLYMPIC REGIONAL DEVELOPMENT AUTHORITY and the State of New York, Defendants. |
| Court | New York Court of Claims |
Claimant's attorney:
McPhillips, Fitzgerald & Cullum, LLP
By: Courtney M. Haskins, Esq., Glens Falls
Defendant's attorney:
LETITIA JAMES
Attorney General of the State of New York
By: Glenn C. King, Esq., Albany, AAG
The Court finds that Claimant, David F. Casey,1 failed to establish, by a preponderance of the credible evidence, that Defendants, New York State Olympic Regional Development Authority and the State of New York (collectively hereinafter, "Defendant," "ORDA," or the "State"), were negligent in connection with personal injuries Claimant sustained in a skiing accident. The Claim arose on March 19, 2015 when Claimant collided with a rope line and was injured on the Wilmington Trail at Whiteface Mountain (hereinafter, "Whiteface").
A bifurcated trial, addressing liability issues only, was held on June 26-27, 2018 at the Court of Claims in Albany, New York. There were six witnesses at trial: Claimant; his friend, Francis F. Cabana, Jr.; Gary A. Marchuk and Thomas Cooper (ski patrollers employed by ORDA); Mark A. DiNola (Claimant's expert); and Mark Petrozzi (Defendant's expert). Portions of examinations before trial conducted on December 15, 2016 (each, an "EBT") also were read into evidence for three witnesses: Mr. Cooper; James Hoyt (the head of ski patrol at Whiteface); and Michael LeBlanc (the assistant manager at Whiteface). In addition, the EBT conducted on June 20, 2018 of Craig Scott, another friend of Mr. Casey, was received into evidence. Thereafter, the parties requested and were granted additional time to order a transcript and submit post-trial memoranda.
Claimant's accident occurred at about 10:15 a.m. on March 19, 2015 while he was skiing with Mr. Cabana and Mr. Scott at Whiteface. Mr. Casey collided with a rope line that was part of a barrier or array erected across the Wilmington Trail, near its bottom end where it intersects with the Boreen Trail.
Mr. Scott was the first of the trio to reach the barrier/array, followed by Mr. Cabana. Mr. Scott was 15-20 feet away when he first noticed an orange caution banner and slowed down before proceeding around and behind the caution banner and through a gap or opening between two vertical, orange bamboo poles with orange discs attached to the tops (each hereinafter, a "lollipop pole") (Ex. 6, pp. 16, 18, 21-22, 39-40; see Tr., pp. 140, 158, 163, 338). Rope lines, attached to each of the lollipop poles, were strung across each side of the trail and were attached to trees beyond the edges of the ski trail. Mr. Cabana also saw the caution banner, but skied away from it. When he was about 10 feet away, however, he saw one of the rope lines so that he had to make an abrupt stop (Tr., pp. 86-87, 95, 111). At trial, he said that he "came very close" to hitting it (Tr., p. 88). At his EBT conducted on April 5, 2015, however, he said that he saw the rope line just before getting to the caution banner, and stopped on the right side of the trail to ponder how to proceed (Tr., pp. 107- 108). He then skied through the gap/opening between the rope lines/lollipop poles, and joined Mr. Scott (Tr., p. 93). Mr. Scott said that he had no difficulty getting through the gap/opening, and did not think Mr. Cabana did either (Ex. 6, pp. 24-25). The two then skied across the intersection of the Wilmington Trail with the Boreen Trail and waited for Mr. Casey at a point Mr. Scott thought was 70-80 feet downhill from the barrier/array (Ex. 6, pp. 14-15, 23). Mr. Di Nola agreed that Mr. Scott's decision to slow down, and Mr. Cabana's decision to stop, each was prudent (Tr., pp. 285-287).
Claimant saw his two companions ski off ahead of him, but did not remember watching them go by any ropes (Tr., p. 44). He said that he was skiing down the trail in a "traverse" fashion, going "across the trail, turning, coming back, going across the trail, turning, coming back" (Tr., p. 31). Claimant explained that, when "I make turns, I look down at my skis to see where my skis are, and when I turn, I'm looking more at my skis and the contour of the land where I'm making my turn than anything else" (Tr., p. 31; see pp. 52-53). Mr. Casey said that he does not look down a trail until after he has completed a turn and has begun traversing across the trail again so that, while he probably had looked down the Wilmington Trail when he was farther up the mountain, he did not do so when he was near the barrier/array where the accident occurred (Tr., pp. 64-65).
Mr. Casey agreed that he did not observe the caution banner, or recall reading it (Tr., pp. 63-64, 66). Rather, he only saw that something was on the trail, but did not know what it was, and made no effort to find out if anything was written on the banner (Tr., pp. 59-60, 63-64). Instead, he skied past, or around, or away, from the thing that he saw, headed toward his right, beyond the thing/sign, made a left turn intending to go back across the trail again, and collided with a rope line (Tr., pp. 34-35, 59, 63, 66). Mr. Casey said that: he is six feet tall; he was coming out of a crouch as he came out of his turn; the rope struck him across his mouth and just underneath his lower lip; and the impact was very sudden and knocked him down (Tr., pp. 40-42).
Mr. Scott gave a similar account. He observed Claimant approach the barrier/array and became worried because Mr. Casey was not skiing toward the caution banner and the gap/opening (Ex. 6, pp. 23-24, 42-43). Mr. Scott saw: Mr. Casey hit the rope; the rope line stretched in a "V" formation before the lollipop pole to Claimant's left pulled out of the ground and moved to the left; Mr. Casey flipped violently to his left, hit the ground hard, and landed on the right side of his face; and Claimant's skis came off (Ex. 6, pp. 25-26, 31, 35, 42). Both Mr. Casey and Mr. Scott said that Claimant was not skiing very fast (Tr., pp. 34, 53 [Casey]; Ex. 6, pp. 24-25 [Scott] ). Mr. Cabana did not witness the accident (Tr., p. 109).
Mr. Casey reckoned that he was about 20 feet from the caution banner when he first saw it, and that he hit the rope line no more than five seconds later (Tr., pp. 37-38). Mr. Scott said that Mr. Casey made no attempt to stop (Ex. 6, p. 24). Mr. Casey said that he never saw the rope, the ribbons on it, or any other markings of any kind, prior to his accident (Tr., pp. 39-40, 65). At trial, however, he was able to see the lollipop pole, as well as the rope line with little ribbons on it, in the top photograph in Exhibit 3, which he estimated, was taken from a distance of about six feet away from the pole (Tr., pp. 53-57). By contrast, Mr. Marchuk, who took the photograph, said that he was standing 10-15 feet uphill from the rope line, based upon the skis visible in the picture (Tr., pp. 164-165).
After the accident, Mr. Scott took his skis off and went to assist Claimant. He saw that Mr. Casey was bleeding from a cut just underneath his bottom lip, and gave him some gauze pads, while Mr. Cabana skied to get help from the ski patrol, who arrived quickly and attended to Claimant (Tr., p. 43 [Casey]; Ex. 6, pp. 27-28, 31 [Scott] ). At the accident scene, Claimant and Mr. Cabana each saw the rope line Mr. Casey collided with lying on the snow, with Mr. Cabana adding that it was over by the edge of the trail, almost into the woods (Tr., pp. 47 [Casey], 98-99 [Cabana] ).
Mr. Casey, who was 67 in 2015, said that he has skied sporadically since 1966, a little bit more since he retired from work (Tr., pp. 20, 22). He had been skiing 100 or more times in his life prior to the date of his accident (Tr., p. 45) and said he was an intermediate skier at the time of his accident (Tr., p. 22). Mr. Cabana thought that both he and Claimant were "lower intermediate" skiers, not beginners (Tr., pp. 82-83). Mr. Scott described himself as "a little bit above average," not an expert skier, but was not able to classify Mr. Casey's skiing ability (Ex. 6, pp. 6-7, 11).
Mr. Casey was aware of the skier's responsibility code, and said, "[y]es, I guess" when asked whether he was supposed to understand it, but he had never read that he was responsible to observe all posted signs and warnings (Tr., p. 60-61; see Ex. A, ¶ 6 [hereinafter, the "Skier's Responsibility Code"]).
The barrier/array included an orange banner with the word "CAUTION" printed on it in black letters (see Exs. 4 & 5). Mr. Petrozzi thought that the dimensions of the banner were about one foot by five feet (Tr., p. 370) and said it was located toward the center of the ski trail, uphill from, and in front of, the two sets of rope lines and lollipop poles. The rope lines had the effect of funneling skiers toward the lollipop poles and the middle of the trail. As noted, the two rope lines did not meet so that the gap/opening between the two lollipop poles left a space through which skiers could proceed down to the bottom of the Wilmington Trail (see Tr., pp. 71, 140, 158, 163, 338; Ex. 6, p. 17). The rope lines also had bunting or ribbons on them (see Tr., p. 140). Each lollipop pole sat in an approximately 12-inch deep hole drilled into the snow to help keep them standing upright (see Tr., pp. 158-159).
The barrier/array was intended to slow skiers as they reached the bottom end of the Wilmington Trail so that they would not collide with other skiers on the intersecting Boreen Trail (Tr., pp. 70-71 [Hoyt]; Tr., p. 340 [Cooper] ). The Wilmington Trail is designated as a more difficult trail, while the Boreen Trail is designated as an easier trail and also is a Family Slow Skiing Zone in that area (see Ex. A [Whiteface trail map] ).
Mr. DiNola, Mr. Casey, and Mr. Cabana, each had never seen a barrier/array configured precisely like the one at the bottom of...
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