Lapinski v. Hunter Mountain Ski Bowl, Inc.

• Decision Date: 09 June 2003
• Citation: 306 A.D.2d 320,760 N.Y.S.2d 549
• Parties: KRYSZTOF LAPINSKI, Respondent,<BR>v.<BR>HUNTER MOUNTAIN SKI BOWL, INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

306 A.D.2d 320

760 N.Y.S.2d 549

KRYSZTOF LAPINSKI, Respondent,

v.HUNTER MOUNTAIN SKI BOWL, INC., et al., Appellants.

Decided June 9, 2003.

Feuerstein, J.P., S. Miller, McGinity and Crane, JJ., concur.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff sustained severe injuries as a result of a skiing accident at the premises owned by the defendant President's Bowl, Inc., and operated by the defendantHunter Mountain Ski Bowl, Inc.While skiing down "Broadway," an intermediate trail, the plaintiff inadvertently veered off that trail and onto an expert trail known as "Eisenhower."Once on Eisenhower, the plaintiff encountered a small drop-off and landed on a patch of ice.He lost his balance and slid off the trail and into a tree, rendering him a paraplegic.

The plaintiff commenced this action against the defendants alleging that his accident was caused by, among other things, the defective design and configuration of the Eisenhower trail, and the failure to post adequate and proper warning signs of the intersection of the expert Eisenhower trail with the intermediate Broadway trail.The defendants moved for summary judgment dismissing the complaint arguing, inter alia, that the plaintiff had assumed the risk of the injury-causing event at issue.The Supreme Court denied the motion.We reverse on the ground that the warning signs were adequate, and neither the design nor configuration of the Eisenhower trail was the proximate cause of the plaintiff's injury.

The doctrine of assumption of the risk is a form of measurement of a defendant's duty to a voluntary participant in a sporting activity (seeBenitez v New York City Bd. of Educ.,73 NY2d 650, 653[1989];Turcotte v Fell,68 NY2d 432, 439[1986]).The voluntary participant is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport; the landowner need protect the plaintiff only from unassumed, concealed, or unreasonably increased risks, thus, to make conditions as safe as they appear to be (seeMorgan v State of New York,90 NY2d 471, 484[1997];Turcotte v Fell, supra;Braun v Davos Resort,241 AD2d 533[1997];Giordano v Shanty Hollow Corp.,209 AD2d 760[1994];Calabro v Plattekill Mt. Ski Ctr.,197 AD2d 558, 559[1993];Pascucci v Town of Oyster Bay,186 AD2d 725, 727[1992]).Here, the evidence established that the plaintiff voluntarily participated in the activity of skiing and was aware of the dangers associated with the sport.He acknowledged that he also had a duty to follow the rules, including to ski within his limits.

Clearly, the Eisenhower trail on which the plaintiff immediately lost control was beyond his ability.If the plaintiff assumed the risk of...