SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

784.1 

CA 11-00020 

PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ. 

 

SUSAN J. MILLER, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

HOLIDAY VALLEY, INC. AND WIN-SUM SKI CORP., 

DEFENDANTS-APPELLANTS. 

 

DAMON MOREY LLP, BUFFALO (STEVEN M. ZWEIG OF COUNSEL), FOR

DEFENDANTS-APPELLANTS. 

THE BRIAN O’CONNELL, JR. LAW FIRM, PLLC, OLEAN (BRIAN O’CONNELL OF

COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Cattaraugus County

(Michael L. Nenno, A.J.), entered October 22, 2010 in a personal

injury action. The order denied the motion of defendants for summary

judgment dismissing the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking to recover

damages for injuries she sustained while skiing at a resort operated

by defendant Win-Sum Ski Corp. The accident occurred while plaintiff

was riding a chairlift (hereafter, lift) with her 14-year-old son. 

Her son’s snowboard became entangled with her skis as plaintiff and

her son approached the lift’s unloading area and he panicked, exiting

the lift as it reached the point at which skiers typically unloaded

and pulling plaintiff from the lift to the ground in the process. 

Defendants did not stop the lift until plaintiff had fallen. 

Defendants moved for summary judgment dismissing the complaint on the

ground that plaintiff assumed the risks associated with the sport of

skiing, and they contended in the alternative that any alleged

negligence on defendants’ part merely furnished the occasion for the

accident. We agree with plaintiff that Supreme Court properly denied

the motion.

Addressing first defendants’ contention that the court erred in

denying the motion because plaintiff assumed the risks associated with

the sport of skiing, we note that, “[u]nder the doctrine of primary

assumption of risk, a person who voluntarily participates in a

sporting activity generally consents, by his or her participation, to

those injury-causing events, conditions, and risks [that] are inherent

in the activity” (Cotty v Town of Southampton, 64 AD3d 251, 253; see
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CA 11-00020 

generally Morgan v State of New York, 90 NY2d 471, 482-486; Turcotte v

Fell, 68 NY2d 432, 438-440). As a general matter, an experienced

skier assumes the risk of injury caused by, inter alia, variations in

terrain and weather conditions that are incidental to the furnishing

of a ski area, i.e., the conditions that generally flow from

participation in that sport (see Sontag v Holiday Val., Inc., 38 AD3d

1350; Painter v Peek’N Peak Recreation, 2 AD3d 1289; see also General

Obligations Law § 18-101).

“On the other hand, the defendant[s] generally [have] a duty to

exercise reasonable care to protect athletic participants from

‘unassumed, concealed or unreasonably increased risks’ ” (Lamey v

Foley, 188 AD2d 157, 164, quoting Benitez v New York City Bd. of

Educ., 73 NY2d 650, 658; see Morgan, 90 NY2d at 485), and a plaintiff

will not be held to have assumed those risks that are “over and above

the usual dangers that are inherent in the sport” (Morgan, 90 NY2d at

485; see Cotty, 64 AD3d at 255-257; Lamey, 188 AD2d at 164). While

“there is undoubtedly some risk of injury inherent in entering, riding

and exiting from a chairlift at a ski resort” (Morgan v Ski Roundtop,

290 AD2d 618, 620 [hereafter, Ski Roundtop]), the use of such a device

“is not of such magnitude to eliminate all duty of care and thereby

insulate the owner from claims of . . . negligent maintenance and

operation of the lift . . . since such negligence may unduly enhance

the level of the risk assumed” (id.). 

Here, defendants met their initial burden on the motion by

establishing that plaintiff was a veteran skier familiar with the lift

at issue and, indeed, had once fallen while unloading from a lift. 

The burden thus shifted to plaintiff “to submit evidence sufficient to

raise an issue of fact whether defendant[s] created a dangerous

condition over and above the usual dangers inherent in the sport of

[downhill skiing]” (Sontag, 38 AD3d at 1351 [internal quotation marks

omitted]). Guiding our conclusion in this case that the court

properly denied defendants’ motion is the decision of the Third

Department in Ski Roundtop. There, the injured plaintiff was hurt

after she disembarked from a lift and skied into a nearby plywood wall

while attempting to avoid a skier who had been seated in the row of

chairs immediately in front of the plaintiff and who had fallen in the

unloading area (id. at 619). The “[p]laintiffs’ major claim against

[the cross-moving] defendants [was] that their lift operator was not

properly trained and that he negligently failed to stop the lift so

that [the] plaintiff could remain seated while the fallen skier exited

the unload ramp” (id.). In denying the cross motion of those

defendants for summary judgment dismissing the complaint on the basis

of assumption of risk, the Third Department reasoned that there were

issues of fact whether the operator was properly trained and was

negligent in exercising his discretion not to stop the lift (id. at

620).

Here, the lift operator failed to stop the lift and prevent the

release of plaintiff into the unloading area, resulting in plaintiff’s

injuries. Plaintiff’s deposition testimony demonstrates that

plaintiff and her son were frantically attempting to untangle

plaintiff’s skis from the snowboard as the lift approached the
-3- 784.1 

CA 11-00020 

unloading area, and that plaintiff’s son yelled to her that he was

unable to do so. Plaintiff’s expert relied on that testimony as well

as other evidence in concluding that the top lift attendant had

sufficient time in which to observe plaintiff’s distress and to engage

in what defendants’ night lift operation supervisor characterized as

the exercise of judgment to slow or stop the lift. According to

plaintiff’s expert, once braked the lift would have come to a stop

almost immediately, which would have enabled plaintiff and her son to

exit the lift in a safe and controlled manner.

We reject defendants’ alternative contention in support of the

motion, i.e., that any alleged negligence on the part of the lift

operator merely furnished the occasion for the accident. “ ‘As a

general rule, issues of proximate cause are for the trier of fact’ ”

(Bucklaew v Walters, 75 AD3d 1140, 1142). Even assuming, arguendo,

that defendants met their initial burden with respect to that

alternative contention (see generally Zuckerman v City of New York, 49

NY2d 557, 562), we conclude that the foregoing evidence raises triable

issues of fact whether the alleged failure to operate the lift in a

safe manner was a proximate cause of the accident (see generally

Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, rearg denied 52

NY2d 784, 829).

Entered: June 17, 2011 Patricia L. Morgan

Clerk of the Court