Woods v. New York State Olympic Regional Development Authority

• Decision Date: 02 April 1996
• Docket Number: No. 89278,89278
• Citation: 169 Misc.2d 8,640 N.Y.S.2d 1012
• Parties: Norbert V. WOODS, et al., Claimants, v. NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, Defendant. (Claim)
• Court: New York Court of Claims

Page 1012

640 N.Y.S.2d 1012

169 Misc.2d 8

Norbert V. WOODS, et al., Claimants, v. NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY Defendant. (Claim No. 89278.)

Court of Claims of New York.

April 2, 1996.

Robert W. Hoffman and Allen, Johnson & Lonergan (Thomas J. Johnson, of counsel), for claimants.

Dennis C. Vacco, Attorney-General (Frederick H. McGown, III, of counsel), for defendant.

JOHN L. BELL, Justice.

This claim requires the court to decide whether a ski area operator has a legal duty to secure the name of a skier who collides with another skier so as to protect the litigation interest of the latter. Although the precise issue was decided recently by the Supreme Court of Vermont in O'Connell v. Killington, Ltd., 164 Vt. 73, 665 A.2d 39, and earlier by the Supreme Court of Idaho in Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159, and the Minnesota Court of Appeals in Phillips v. Wild Mountain Sports, 439 N.W.2d 58 [Minn.App.], such issue, insofar as any reported case is concerned, is one of first impression in New York, a state, which like Vermont, Idaho and Minnesota, has a substantial number of alpine or downhill skiing facilities.

On January 18, 1993, the day of the subject skiing accident, claimant Norbert V. Woods (hereinafter "claimant"), accompanied by some of his children, their spouses and about nine or ten grandchildren, traveled from Schenectady to the Gore Mountain Ski Center located at North Creek. Although the ski center is owned by the State, it is controlled and maintained by the Olympic Regional Development Authority, commonly known as ORDA (see, Slutzky v. Cuomo, 114 A.D.2d 116, 498 N.Y.S.2d 550, appeal dismissed 68 N.Y.2d 663, 505 N.Y.S.2d 1027, 496 N.E.2d 240; Pandolph v. State of New York, 155 Misc.2d 612, 615, 589 N.Y.S.2d 136).

Prior to 1994, the Supreme Court, rather than the Court of Claims, had jurisdiction over tort claims against ORDA (Pandolph v. State of New York, supra ). The Legislature, however, amended Public Authorities Law § 2622 in 1994 to confer exclusive jurisdiction upon the Court of Claims "to hear and determine any claim of any person brought hereafter against the authority to recover damages * * * for personal injury arising out of the operation by the authority of any participating olympic facility owned by the state or of the Gore mountain ski center * * * " (emphasis supplied) (L 1994, ch. 169, § 93 [codified as subdivision 4 of the Public Authorities Law § 2622 and retroactive to April 1, 1994]. Claimants filed a notice of intention to file a claim against the State of New York and ORDA in the office of the clerk of the Court of Claims on April 8, 1993, and a claim against ORDA was filed in the clerk's office on April 27, 1994. Thus, as conceded by ORDA at the commencement of the trial, the Court of Claims has jurisdiction of the present claim against ORDA since the claim was filed after April 1, 1994.

The Woods entourage arrived at the Gore Mountain Ski Center about 9 a.m. and secured their ski lift tickets. Since claimant had reached his 70th birthday, he was given a complimentary lift ticket. Each ticket issued at the ski center on the accident date contained a warning printed beside a traditional motor vehicle stop sign symbol. The warning read:

"BEFORE AFFIXING TICKET OR ALLOWING TICKET TO BE AFFIXED TO YOUR PERSON, READ AND UNDERSTAND THE NOTICE ON THE PEEL-OFF BACKING AND THE 'WARNING TO SKIERS' POSTED WHERE THIS TICKET WAS PURCHASED."

On the peel-off backing there appeared a notice that skiers and ski lift passengers are governed by the New York Safety in Skiing Code (Article 18 of the General Obligations Law) and that before a skier attached the ticket to his person, the skier's attention "is directed to a posted 'Warning to Skiers' " sign displayed where the tickets were purchased. A further warning on the peel-off backing read:

"NEW YORK LAW REQUIRES YOU TO SEEK OUT, READ, REVIEW AND UNDERSTAND THAT 'WARNING TO SKIERS' BEFORE YOU DECIDE TO PARTICIPATE IN THE SPORT OF SKIING."

Finally, below such warning the skier was advised:

"SKIING IS AN INHERENTLY DANGEROUS SPORT WHICH CAN RESULT IN PERSONAL INJURY, INCLUDING CATASTROPHIC INJURY, DEATH OR PROPERTY DAMAGE. IF YOU ARE NOT WILLING TO ASSUME THE RISKS SET FORTH ON THE 'WARNING TO SKIERS', PLEASE DO NOT SKI AT THIS AREA."

As part of its proof, defendant introduced a copy of the posted "Warning to Skiers" sign (Exhibit A) located where tickets were purchased. Following the printed direction in bold letters "BE A SAFE SKIER, KNOW THE LAW ..." the sign read:

"Section 101, Legislative Purpose. New York State General Obligations Law Article 18

The legislature hereby finds that alpine or downhill skiing is both a major recreational sport and a major industry within the State of New York. The legislature further finds: (1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks or personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or area of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York State; (2) that downhill skiing, without established rules of conduct and care, may result in injuries to persons and property; (3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry."

Claimant testified that he had begun to ski when he was 15 or 16 years old. He skied sporadically until he reached his early 30's and thereafter skied consistently until he was injured. After securing his skier's lift ticket on the day of the accident, he skied the remainder of the morning on various ski trails. Following lunch he returned to skiing. The eventual accident in which he fractured his right leg occurred on a ski trail known as Sunway. He described the snow conditions on the Sunway trail as good and related that he had skied the trail three times earlier in the day. When the accident occurred, claimant's daughter, Catherine Hoffman, was skiing with claimant on the Sunway trail. The court observed that claimant and Mrs. Hoffman were sincere and credible in their remembrance of the events surrounding the skiing accident.

Claimant related that the accident occurred slightly beyond the junction of the Sunway and Quicksilver trails. He described the Sunway trail as being very wide and testified that shortly before the accident he had stopped close to the edge of the Sunway trail for the ostensible purpose of observing the scenery. His daughter had stopped above him on the trail. He asserted that as he began to shuffle his skis to continue skiing following his short pause on the trail, he turned his head and the unidentified skier was on top of him. Measured from the time that he began to shuffle his skis, he described the collision as occurring almost simultaneously.

Recalling the effect of the collision, claimant stated he was knocked down, stunned and experienced a great deal of pain in his right leg. ¹ Although he could not describe the unidentified skier, he stated that he himself was approximately six feet tall and believed that the other skier was taller. He also believed that their heads may have struck. He testified that he had no conversation with the unidentified skier and could not recall his conversation with the member of the ski patrol who came to his assistance. He remembered that his daughter placed something under his head and that the attending member of the ski patrol immobilized his right leg. He recalled a frightening and painful trip by toboggan to the first-aid station at the bottom of the mountain.

Catherine Hoffman verified that the skiing conditions could best be characterized as good on the day of the accident and described the Sunway trail as an intermediate trail. Ski trails, in the parlance of skiers, are often described in ascending order of difficulty as novice, intermediate and expert. Mrs. Hoffman, who was skiing behind claimant, related that immediately before the accident she had stopped about 50 feet uphill from the point where claimant had paused at the edge of the left side of the Sunway trail. She recalled that she had skied the Sunway trail twice earlier in the day and that the condition of the trail did not contribute to the accident. Testifying to the happening of the accident itself, Mrs. Hoffman stated that as she was facing downhill while observing claimant, he began to "edge out" ² onto the trail. She then noticed another skier proceeding "down fast" and recited that such skier turned left and hit claimant "straight on." She skied down to claimant, removed her skis and was told by him that his right knee hurt and that he could not remove his skis. She recalled that the accident occurred about 1 p.m.

Mrs. Hoffman observed that the other skier was a young man whom she had not seen previously that day, but she could not approximate his age. She asked the other skier if he was "OK" and he replied that he was not sure. She further advised that the member of the ski patrol who arrived to assist claimant asked the unidentified skier...