Defendant snow-tubing adventure park (represented by TICL member Gary Cusano) met its burden of proving plaintiff’s primary assumption of risk but plaintiff (represented by TICL member Jim Kelly) raised a question of fact.

While snow tubing at defendant adventure park, plaintiff was injured when her snow tube, which was linked to the snow tubes of her two daughters, slipped up and over the outer barrier of her snow tubing lane and collided with a padded metal pole some 30 to 70 feet away.

At the conclusion of discovery, defendant moved for summary judgment on the basis of plaintiff’s primary assumption of risk.  The Third Department held that although defendant met its burden of proof on its motion, plaintiff raised questions of act, so defendant’s motion was properly denied.

The Third Department cited the black-letter law that under the doctrine of primary assumption of the risk, a voluntary participant in a recreational activity such as snow tubing consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation, but the participant does assume the risks of reckless or intentional conduct or concealed or unreasonably increased risks.  Awareness of the risk of engaging in a particular activity is to be assessed against the background of the skill and experience of the particular plaintiff, and application of the doctrine generally presents a question of fact for a jury to resolve.

Defendant met its burden of proof on its motion for summary judgment that plaintiff assumed the inherent risk that her snow tube would go over the top of the snow berm and collide with one of the nearby padded polls.  Defendant’s evidence consisted of photographs of the snow tubing hill and the deposition testimony of Windham’s project manager, of plaintiff, and of one of plaintiff’s companions on the day in question, and more specifically:

  • The project manager testified that
    • On any given day, there could be between six and ten snow tubing lanes open at defendant adventure park and the lanes were separated by manufactured snow berms, which could range in height from one and one half feet to two and one half feet.
    • The height of the berms could decrease over the course of a day as a result of melting or tubes wearing them down and that, although tubers generally should not be able to go over the top of the berms, he had occasionally seen that happen.
    • At the time of plaintiff’s injury, there was no policy prohibiting lane attendants from spinning patrons prior to their descent.
    • The number of tubes, if any, that could be linked together was determined by lane safety attendants at the bottom of the hill based on their observations and assessments of the weather and resulting lane conditions.
  • The photographs and the testimony of the project manager and plaintiff’s companion demonstrated the existence of several padded poles, which were situated between 30 and 70 feet away from plaintiff’s lane and were readily observable from both the hill and the lift line to the top of the hill.
  • Plaintiff testified that
    • She had some experience with snow tubing before her accident, having snow-tubed three years earlier and completed several prior runs that day without incident.
    • Regarding the injury-producing run, which occurred around 3:00 p.m., plaintiff and her daughters had decided to ride tandem and that, when asked if they wanted to be spun, she had said yes.

Plaintiff therefore assumed the inherent risk that her snow tube would spin out of control, go over the top of the snow berm and collide with one of the nearby padded poles, so the burden shifted to plaintiff to demonstrate that defendant concealed or unreasonably enhanced the danger or created conditions which were unique or above those inherent in the activity

Plaintiff succeeded in doing so by the deposition testimony of her companion and the project manager, which raised questions of fact that the weather and the condition of the lanes and snow berms on the day in question were such that spinning and in-tandem tubing were contraindicated and should not have been allowed:

  • Plaintiff’s companion testified that she walked from plaintiff’s lane to the pole with which plaintiff had collided and found the terrain to be “icy” and “hard.”
  • The project manager testified that
    • Based on his examination of the glare and shadows in the photographs taken on the day of the accident.
    • The lanes and snow berms appeared “icy” and that the lanes were “probably getting a bit frozen over” and “fast.”
    • When the lanes “iced up” and became too fast, the lane safety attendants at the bottom of the hill were supposed to either cut down the number of tubers that were permitted to ride together or prohibit tandem riding altogether.
    • He had previously observed snow tubers leave their lanes as a result of being spun.

Plaintiff therefore raised a factual issue as to whether the risk of injury was unreasonably increased by the actions of the lane attendants by allowing plaintiff and her daughters to ride tandem and spinning their tubes prior to their descent under the particular weather and terrain conditions at the time of plaintiff’s injury.   The order was therefore affirmed with costs.

Thompson v Windham Mtn. Partners, LLC, 2018 NY Slip Op 03415 (3d Dep’t May 10, 2018).

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