Tarlowe v. Metropolitan Ski Slopes, Inc.
| Decision Date | 26 May 1971 |
| Citation | 271 N.E.2d 515,28 N.Y.2d 410,322 N.Y.S.2d 665 |
| Parties | , 271 N.E.2d 515 Ronald G. TARLOWE, Appellant, v. METROPOLITAN SKI SLOPES, INC., Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Richard J. Burke, New York City and Louis Rothbard, Brooklyn, for appellant.
Charles G. Pillon, New York City, for respondent.
In a personal injury negligence action involving the alleged malfunction of rented ski equipment, plaintiff appeals. The Appellate Division reversed on the law only a judgment in his favor based on a jury verdict and dismissed the complaint. The principal issue is whether there was a failure of proof because plaintiff's expert did not develop the technical foundation for his opinion.
The testimony of plaintiff's expert was proper and, therefore, established a prima facie case. Consequently, the complaint should not have been dismissed.
Plaintiff, for his first attempt at skiing, visited defendant's facility where he rented a pair of skis, boots and poles. After being assisted by an employee in fastening the boots and skis, he left the relatively flat rental area and proceeded, on skis, toward a two line. To reach the line he descended a slope. Halfway done, and but a minute or so after putting on the equipment, he fell and suffered a fractured right femur resulting in a shortening of the leg with permanent limp.
Plaintiff testified that he was 30 feet down the incline when his body twisted and he fell, and that while falling he felt a sharp pain in his right let. Plaintiff's expert testified that the injuries were caused by the malfunction of ths ski bindings which should have released plaintiff's foot. He described the safety release mechanisms, including a swivel toe release, their function in protecting the skier from serious injury, and demonstrated manually and explained the motion which should activate the toe release. The swivel toe release is so disigned that when a certain amount of lateral pressure is exerted the release will free the skier's foot and prevent serious injury in a fall. The expert was then asked the following hypothetical question: 'Now assume, sir, a man five foot six tall, weighing 120 pounds (plaintiff's height and weight), falling to the right and twisting the body, without forward motion, and no release of the (toe release) binding, what force or torque is transmitted to the leg by the ski?'
Prior to the witness' response, defendant objected that prior testimony was to the effect that plaintiff twisted his body to the right Before falling, instead of 'falling to the right and twisting.' The objection was overruld and the witness responded:
The critical testimony is the 325 foot pound estimate. It ties in with the expert testimony submitted by both parties that if the toe release is functioning it should release at 75 or 100 foot pounds. Consequently, the failure of the binding to release the foot and the resulting injuries may be attributed to a defect in the apparatus.
On cross-examination of plaintiff's expert an exculpatory explanation was developed for the failure of the binding to release: If the skier fell in a motion perfectly perpendicualr to his ski, no amount of pressure would release a functioning toe release.
The Appellate Division, 34 A.D.2d 905, 311 N.Y.S.2d 344 in dismissing the complaint, observed that plaintiff's expert was permitted to give an opinion of the cause of the accident without stating his reasons. It concluded that the...
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...which included indications of physical force as well as threats") (citing, inter alia, Tarlowe v. Metropolitan Ski Slopes, Inc., 28 N.Y.2d 410, 414, 322 N.Y.S.2d 665, 667, 271 N.E.2d 515, 516 (1971)). We find that, while expert testimony is limited by the requirements of relevancy and by th......
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...646, 187 N.Y.S.2d 1, 159 N.E.2d 348, 349 (1959), or are "fairly inferable from the evidence." Tarlowe v. Metro. Ski Slopes, Inc., 28 N.Y.2d 410, 414, 322 N.Y.S.2d 665, 271 N.E.2d 515, 516 (1971); see also Freitag v. New York Times, 260 A.D.2d 748, 749, 687 N.Y.S.2d 809 (3rd Dep't 1999). Thu......
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Witness examination
...to the jury dissipated the effect of unanswered questions sufficiently to avoid reversal. Tarlowe v. Metropolitan Ski Slopes, Inc., 28 N.Y.2d 410, 322 N.Y.S.2d 665 (1971). In a personal injury products liability action brought by a novice skier, an expert was properly permitted to give an o......
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Expert witnesses
...an expert witness is qualiied to testify based on knowledge, skill, education, and experience. Tarlowe v. Metropolitan Ski Slopes, Inc ., 28 N.Y.2d 410, 322 N.Y.S.2d 665 (1971). Judges generally qualify experts whose experience or training bears a reasonable relation to the area of purporte......
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Expert witnesses
...an expert witness is qualiied to testify based on knowledge, skill, education, and experience. Tarlowe v. Metropolitan Ski Slopes, Inc ., 28 N.Y.2d 410, 322 N.Y.S.2d 665 (1971). Judges generally qualify experts whose experience or training bears a reasonable relation to the area of purporte......
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Witness examination
...to the jury dissipated the efect of unanswered questions suiciently to avoid reversal. Tarlowe v. Metropolitan Ski Slopes, Inc. , 28 N.Y.2d 410, 322 N.Y.S.2d 665 (1971). In a personal injury products liability action brought by a novice skier, an expert was properly permitted to give an opi......