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Assumption of Risk for Summary Judgment: Uphill Battle in Ski Accident (NY)

August 4, 2023

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In the recent case <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/08/Perrone-v.-Catamount-Ski-Resort-LLC.pdf">Perrone v. Catamount Ski Resort, LLC</a>,</em> the United States District Court for the Northern District of New York denied the defendants’ (ski resort and affiliated corporation) motion for summary judgment as the court found multiple questions of fact existed as to assumption of risk and proximate cause.

This diversity action originally filed in the Southern District and then moved to the Northern District was initiated by the plaintiff, a Connecticut resident who crashed into an unguarded and unmarked snowmaking machine while skiing in 2019. The plaintiff at the time was 18-years-old and suffered “multiple pelvic fractures, right sacral alar/acetabular/ischium fracture, right inferior pubic rami fracture, and left pubic bone fracture.” According to the plaintiff she had been skiing in control the entire time, moving at a moderate speed, and had never realized that the snowmaker was on the trail before crashing into it. However, plaintiff’s father testified that plaintiff lost her footing due to ice, which then led to plaintiff crashing into the snowmaker while being carried by her forward motion. Furthermore, plaintiff’s father also stated that the snowmaker was off to the side of the trail rather than on the trail. Other skiers who witnessed the incident testified in accordance with plaintiff’s father stating that the snowmaker was on the ungroomed terrain rather than the trail and located at least six feet away from the actual trail marked with a warning sign.

In seeking summary judgment, the defendants argued that due to the assumption of risk doctrine, the plaintiff’s claims are without merit. While the defendants have a duty to maintain a ski slope in a reasonably safe condition, the plaintiff will be barred from asserting claims if found to be an experienced skier or was out of control in moving down the slope.

Although a skier will be deemed to have assumed the risk when the risks are not unique and caused by the defendants’ negligence, the court held that the assumption of risk argument failed because material questions of fact still exist as to whether the snowmaker was on the trail and whether there was adequate warning. These questions of fact are pivotal in determining whether the slope was maintained in a reasonably safe condition. Also, despite precedent indicating that summary judgment should be granted when the skier is experienced, the court found that plaintiff’s experience in skiing and whether she was moving in control down the slope still raised questions of material fact, so the inferences must be given to the plaintiff. Plaintiff claimed to be an experienced skier but had not skied in several years.

This case shows how difficult summary judgment can be to obtain when different versions of the facts exist.

Thanks to Allen Dejewski for his contribution to this article.  Should you have any questions, contact <a href="mcare@wcmlaw.com">Matthew Care</a>.

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