Deeply Depressed – Experienced Skier Claim Relating to “Depressions” in Snow Survives Court Motion (NY)

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Paulus v. Holimont, Inc. (New York)

The sixty-right year old plaintiff was a self-described “accomplished” skier, who had been skiing since the age of 5.  Plaintiff had participated in various ski races throughout the years, and he had skied on different mountains throughout the world involving varying terrain, including ice and moguls.  Plaintiff drove from his home in Ohio to the defendant’s ski area in New York.  It was his second visit to the defendant’s resort.  On his first run of the day, plaintiff was coming down a trail at the facility called “Corkscrew” (a trail rated “more difficult” with a blue square), when he encountered difficult terrain and crashed, suffering injuries.  Plaintiff used racing skis and boots, and he admitted that he liked to ski fast.  He estimated that he was traveling twenty miles an hour at the time of the incident.  Plaintiff acknowledged that a “blaze orange caution sign was placed directly at the top of the portion of the Corkscrew trail where [he] was injured.”  However, the plaintiff testified that he did not believe he had observed the sign as he cut over to the Corkscrew trail from another trail (i.e., plaintiff believed he skied onto the Corkscrew trail below the caution sign).

Plaintiff (and his wife) sued the defendant for negligence, and the defendant filed a motion for summary judgment, asserting that plaintiff’s claim should be barred by primary assumption of risk.  The trial court acknowledged that in New York “[d]ownhill skier ‘assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and manmade objects that are incidental to the provision or maintenance of a ski facility.'”  The doctrine is recognized in New York’s Safety in Skiing Code.  Additionally, “variations in terrain, including moguls, are recognized risks that are inherent in the sport of downhill skiing.”

However, in the case at hand, the U.S. District Court for the Western District of New York denied the defendant’s motion for summary judgment and noted that there was a triable issue of material fact:

“With respect to the inherency of the risk, there is plainly a dispute as to the nature of the condition that Plaintiff encountered. If, indeed, the Corkscrew trail simply contained ‘moguls’ or ‘baby bumps’ as some witnesses contend, then those conditions are quite plainly inherent risks to downhill skiing and Defendant would be entitled to summary judgment.  On the other hand, if the conditions were not simply moguls, but rather ‘real deep ditches’ or ‘a series of deep depressions’ that ‘looked unnatural’ and were unlike anything encountered previously on a ski mountain, notwithstanding Plaintiff’s vast experience in skiing for decades on various terrain throughout the world, then it is more difficult to conclude as a matter of law that the conditions were inherent risks to downhill skiing.  This is particularly the case where it appears to be Defendant’s position that it actually intentionally created the conditions on the Corkscrew trail on the date in question.”

The Court stated that the result may have been different if there was no dispute as to whether the conditions on Corkscrew simply consisted of “moguls,” or if the plaintiff had frequented the defendant’s facility more regularly and/or was familiar with the trail and its conditions.

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