“Safety in Skiing” Code at N.Y. Gen. Oblig. §§ 18-101 et seq. New York sets certain statutory duties for skiers, passengers, and operators, with additional duties pertaining to the possibility that skiing may be “hazardous regardless of all feasible safety measures.” Id. at § 18-106. The possibility of negligence per se is coupled with traditional common law negligence, the status quo of which is expressly maintained, absent a contrary and specific legislative directive. Id. at § 18-107. Operators have statutory duties to provide warnings and notice, including notice that refunds for unused lift tickets are available should a skier determine that they can not safely participate after exercising their duty to become informed of potential skiing hazards. Id. at §§ 18-103, 18-105, 18-106. Operators must also inspect run conditions twice a day and pad lift towers. Skiers must maintain general “control” and ski within their abilities, having first familiarized themselves with the course. Operators of ski lifts at ski areas are excluded from the definition of “common carrier” under N.Y. Transp. Law § 2, and cannot contract out of their own negligence liability, per N.Y. Gen. Oblig. § 5-326. Volunteer ski patrol members are granted immunity, except for “gross negligence.” N.Y. Unconsol. Laws § 7310.
Tone v. Song Mountain Ski Center, 113 A.D.3d 1126, Supreme Court, Appellate Division(2014)
The plaintiff suffered a fractured hip at Song Mountain on February 25, 2007 while attempting to exit a chair lift. The defendant ski resort moved for dismissal on the grounds that all of the evidence shows that the ski lift was properly designed and operated and that the plaintiff assumed the risk of her injury. During her deposition, the plaintiff was shown the “Incident Report Form” completed at the time, which she signed. The form indicates that plaintiff said that she let her son get off first because their skis were crossed and that “I waited too late, and when I jumped approximately 6 feet, landed on my left hip.” The trial court granted the motion.
Plaintiff appealed and court of appeals held that a fact issue existed as to whether ski resort was negligent in operation of the chairlift.
Moore v. Hoffman, 114 A.D.3d 1265, Supreme Court, Appellate Division (2014)
Plaintiffs’ daughter was a novice skier and testified that, at the time of the collision, she was skiing down an easy trail. As she entered the slow skiing area near the end of the trail, she heard defendant yell “whoa” three times just before he struck her from behind. There was testimony that he was skiing very fast and did not slow, stop, or turn to try to avoid plaintiffs’ daughter.
Defendant moved for summary judgment and the trial court denied the motion. The court of appeals affirmed, holding that that there was “a triable issue of fact whether defendant’s conduct rose to the level of recklessness and thus was over and above the risk assumed by plaintiffs’ daughter, a novice skier who was injured while skiing slowly on an easy trail in a slow skiing area. Indeed, we note that defendant struck plaintiffs’ daughter with such force that the daughter’s arm was “shattered” and defendant’s kidney was lacerated,” and thus there was “at least a question of fact as to whether the defendant’s speed in the vicinity and overall conduct was reckless.”
Thornton v. Rickner, 94 A.D.3d 1504, 943 N.Y.S.2d 348 Supreme Court of New York, (2012)
Deborah A. Thornton was struck from behind by defendant, a snowboarder while, skiing on a ski trail. Thornton sued Rickner for personal injuries and filed for summary judgment dismissing the amended complaint on the ground that plaintiff assumed the risks associated with the sport of skiing. Trial court denied the motion and defendant appealed. Court of Appeals found that defendant met his initial burden on the motion by establishing that ” he did not engage in any risk-enhancing conduct that was not inherent in the activity of skiing [or snowboarding], which caused or contributed to the accident.” Defendant submitted his deposition testimony in which he testified that he had snowboarded on only one prior occasion, a week earlier, and that the trail where the accident occurred was a beginner’s trail. Defendant further testified that icy conditions on the trail made it difficult for him to turn and stop. According to defendant, he was snowboarding between a low and medium speed when he saw plaintiff. The court of appeals reversed, the motion was granted and the amended complaint dismissed.
Kegler v. State, Olympic Regional Development Authority, Court of Claims of New York, N.Y. Slip Op. 52444(U) (2012)
Kegler was injured while unloading from the Summit Quad chairlift at Whiteface Mountain, a ski resort owned and operated by the state. A bifurcated trial on the issue of liability was held on April 25 and 27, 2012.
The Court determined that neither claimant’s voluntary participation in the sport of skiing nor his knowledge of the risks associated with riding a chairlift while wearing clothing which may become entangled in the mechanisms of the lift chair (Kegler had a jacket tied around his waist) relieved the defendants of their duty to operate and maintain the lift in a reasonably safe manner. Kegler did not assume the risk of injury arising from the defendants’ alleged failure to properly operate or maintain the lift since such conditions are above and beyond the usual dangers which inhere in the sport of downhill skiing. The failure to stop or slow a chairlift when a ski resort owner or operator has notice of danger and an opportunity to avoid it constitutes a breach of its duty to secure the safety of its chairlift passengers ( Miller v. Holiday Val., Inc., 85 AD3d 1706  ).
But the Court continued, finding that though the doctrine of primary assumption of risk does not absolve defendants of liability for improper maintenance or operation of an aerial lift, the Court nevertheless concluded that claimant failed to establish defendants’ negligence by a preponderance of the credible evidence. Kegler failed to show negligent operation by the lift attendant and his claim was dismissed.
Sonnenberg v. State, 2012 N.Y. Slip Op. 52307(U) (2012)
Sonnenberg was snowtubing at Mills–Norrie State Park in Dutchess County. She was injured when her tube hit a mound of snow; she was ejected and landed on her back and neck. Claimant contends that the State, as owner and operator of the park, was on notice that the mounds of snow on the hill were hazardous and that defendant had breached its duty to clear these hazards. Defendant maintains that the condition of the snow-covered hill was open and obvious and that the mounds of snow were an inherent danger in the activity pursued by claimant. The trial of this claim was bifurcated on the issue of liability.
The court found that defendant was not liable pursuant to the immunity afforded under General Obligations Law § 9–103, and further that the credible evidence supported a finding that Sonnenberg had assumed the risk of injury. The claim was dismissed.
Miller v. Holiday Valley, 85 A.D.3d 1706, 925 N.Y.S.2d 785 Supreme Court, Appellate Division, (2011)
Plaintiff was riding a chairlift with her 14-year-old son at a resort operated by defendant Win-Sum Ski Corp. 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.
The court of appeals found that the trial court properly denied the motion. 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 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.
Clarke v. Catamount Ski Area, 87 A.D.3d 926, Supreme Court, Appellate Division (2011)
Plaintiff James Clarke and defendant Zack Lang collided while skiing at an area operated by defendant Catamount Development Corp. The trial court granted defendant Catamount Development Corporation’s motion for summary judgment dismissing the complaint.
Plaintiff appealed and the court of appeals found that the accident was the result of inherent risks in downhill skiing. Defendant made prima facie showings of entitlement to judgment as a matter of law based on the doctrine of assumption of risk; plaintiff admitted awareness of the inherent risks of downhill skiing and defendants submitted proof that they did not enhance such risks. Plaintiff failed to show any issue of fact, dismissal affirmed.
Sabia v. Niagara Mohawk Power Corp., 87 A.D.3d 1291, Supreme Court, Appellate Division (2011)
Snowmobiler was on a trail maintained by defendant Northern Erie Sno–Seekers, Inc. (Sno–Seekers) on property owned by defendant Niagara Mohawk Power Corporation, doing business as National Grid (NiMo). After leaving a restaurant where he had consumed several alcoholic beverages, decedent, followed by a friend on another snowmobile, drove directly into a metal gate near a portion of the trail he had passed earlier that evening. By his friend’s estimate, decedent was traveling at a speed of approximately 45 miles per hour when he hit the gate. Decedent was rendered unconscious immediately and died within one hour after the accident.
Estate of snowmobile driver who was killed brought wrongful death action against owner of property on which gate was located, and against company that maintained the snowmobile trail. The trial court granted summary judgment in favor of property owner, and denied motion for summary judgment filed by company that maintained trail.
General Obligations Law § 9–103 “grants a special immunity to owners, lessees or occupants from the usual duty to keep places safe” when those using the property are engaged in specified recreational activities. It was undisputed that decedent was engaged in a covered activity, i.e., snowmobiling, and that the property had been used extensively for snowmobiling for years and was suitable for that purpose. But the trial court determined that the statute was inapplicable because Sno–Seekers was guilty of “ affirmative” acts of negligence, thereby rendering the statute inapplicable pursuant to section 9–103(2)(a).
The trail maintenance company appealed. The court of appeals found that Sno–Seekers was not guilty of willful or malicious conduct so as to trigger the statutory exception under General Obligations Law § 9–103(2)(a), and granted the motion of defendant Northern Erie Sno–Seekers, Inc. for summary judgment dismissing the complaint against it.
Thomann v. Niagara Mohawk Power Corp., 90 A.D.3d 1583935, Supreme Court, Appellate Division (2011)
Thomann struck a guy wire attached to a utility pole while snowmobiling on a bike path in defendant Town of Amherst. Niagara Mohawk Power Corporation, doing business as National Grid (Niagara Mohawk), owned the guy wire and that, at the time of the accident, the guy wire was missing its yellow safety shield. Niagara Mohawk moved for summary judgment dismissing the complaint, the trial court granted the motion and Thomann appealed.
The court of appeals found that the bike path on which snowmobiler was traveling when he struck guy wire was proper subject for immunity under recreational use statute, as path was the type of property which was not only physically conducive to snowmobiling but was also a type which would be appropriate for public use in pursuing snowmobiling as recreation. That path was held open to public did not preclude utility from asserting immunity, since utility was not a municipality and path itself was undeveloped and unsupervised. Utility, as owner of guy wire attached to utility pole, had authorized presence on premises where snowmobiler struck guy wire, and thus was “occupant,” under recreational use statute, and owed no duty to keep premises safe for snowmobile operation. Court of appeals affirmed dismissal.
Bedder v. Windham Mountain Partners, 33 Misc.3d 1210(A), 939 N.Y.S.2d 739 (A) Supreme Court of New York, (2010)
On February 19, 2007, at around 3:30 p.m., plaintiff was snowboarding on the Whiskey Jack trail at Windham Mountain, a new ski trail that was built the previous summer. As he proceeded down the trail at about 25 mph, a young boy cut in front of him. Plaintiff swerved to avoid the boy and his snowboard purportedly struck an object that he believed to be a tree stump. As a result, he was propelled five or six feet into the air. He landed on a log just off the trail and his body continued to tumble about fifteen feet down the hill towards the woods.
Defendants argue that they are entitled to summary judgment dismissing the complaint because encountering a “stump” on the trail was an inherent risk of snowboarding that plaintiff voluntarily assumed. In the alternative, Windham requests dismissal of the complaint as against it on the basis that it was an out-of-possession landlord that owed no duty of care to plaintiff.
Plaintiff contends that summary judgment should be denied as he did not assume the risk of hidden defects that were allowed to become hazards. He argues that the Whiskey Jack trail was negligently created because it allowed vertical obstacles to remain on the trail. He also contends that defendants continuously covered the trail with snow which concealed stumps and created a trap for everyone using the facility. He does not address Windham’s alternate argument for dismissal.
Plaintiff’s argument that he did not assume the risk because defendants created a trap-like condition by negligently constructing and maintaining the trail fails to raise a triable issue of fact ( see Alvarez, 68 N.Y.2d at 324; Farone, 51 A.D.3d at 602). Plaintiff does not dispute that the object that he claims his snowboard struck, i.e. the ” stump,” is statutorily enumerated as an inherent risk associated with downhill skiing and snowboarding. Defendant’s motion for summary judgment granted.
Martin v. State, 64 A.D.3d 62, 878 N.Y.S.2d 823Supreme Court of New York, Appellate Division (2009)
In February 2005, Brian Martin, a 17-year-old self-described expert skier with 13 years of experience, lost his balance and fell on his second attempt to slide across a rail in the Lower Valley Terrain Park at Whiteface Mountain, which is operated by defendant New York State Olympic Regional Development Authority. As a result of the fall, Martin struck a vertical support post and sustained injuries to his lower left leg. Claimants, individually and as Martin’s parents, commenced this action alleging that defendants negligently failed to safely construct and maintain the rail on which Martin was injured. Following joinder of issue, defendants moved for summary judgment, asserting that the doctrine of primary assumption of risk bars the claim. The Court of Claims granted defendants’ motion and dismissed the claim, prompting this appeal.
We affirm. Claimants argue that the doctrine of primary assumption of risk is inapplicable here because the rail at issue was defective and unreasonably dangerous-and, thus, presented an increased risk beyond that inherent in the sport.
De Angelis v. Protopopescu, 06-00744, Supreme Court of New York, Appellate Division (2007)
Mark De Angelis collided with Mircea Protopopescu while skiing. De Angelis alleged that Protopopescu skied recklessly causing their collision. Plaintiff conceded that because he was an expert skier, he assumed the risks inherent in skiing, including the risk of colliding with another skier. However, plaintiff contends “that he did not assume the risk of injury resulting from reckless or intentional conduct and that the jury could rationally find reckless conduct on the part of defendant based upon the evidence presented.” Following Morgan, the court stated that “participants in a sport will not be deemed to have assumed the risks of reckless or intentional conduct.” Id. (citing Morgan v. State of New York, 90 N.Y.2d 471, 485 (N.Y. App. Div. 1997). Nevertheless, the court granted a directed verdict for Protopopescu stating that the collision evidence does not fall within the rubric of reckless or intentional conduct. The court defined reckless or intentional conduct as the “conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to [the] outcome.” Id. (citing Szczerbiak v. Pilat, 90 N.Y.2d 553, 557 (N.Y. App. Div. 1997).
In New York, expert skiers may assume the inherent risk of colliding with another skier while skiing.
Sontag v. Holiday Valley, 38 A.D.3d 1350, 832 N.Y.S.2d 705, Supreme Court of New York, Appellate Division (2007)
At approximately 6pm in the evening, Henry Sontag fell while skiing at Holiday Valley in Cattaraugus County, New York. Sontag fell after swerving to avoid two skiers. Sontag’s direction change caused him to hit two “bumps”, i.e. moguls, on the trail, causing his crash and subsequent injuries. During deposition, Sontag testified that he did not see the bumps because the trail was almost “pitch black” because several of lights in the area were not illuminated.
Sontag asserted that Holiday Valley could have provided more lighting to make skiing conditions safer. Holiday Valley filed a Motion for Summary Judgment arguing that Sontag was an experienced skier who had skied at Holiday Valley more than 100 times over a 30 year period and was “sufficiently aware of the inherent risks in downhill skiing, including the risk of injury caused by moguls or bumps in the terrain regardless of whether they could be seen.” The court granted Summary Judgment stating that “while more light at the bottom of the trail might have made the conditions safer for plaintiff, “the mere fact that a defendant could feasibly have provided safer conditions’ is beside the point, where, as here, the risk is open and obvious to the participant, taking into consideration his level of experience and expertise, and is an intrinsic part of the sport.” Id. (citing Simoneau v. State of New York, 248 A.D.2d 865, 866-67 (N.Y. App. Div. 1998)).
To recover in New York, plaintiffs must prove that the risk was not open and obvious to the participant, taking into consideration participant’s level of experience and expertise. Further, plaintiff must prove a hazardous condition was not an intrinsic part of the sport. “Where the risks of a sporting activity are fully comprehended and obvious, plaintiff has consented to them and the defendant has performed its duty.” Bailey v. Town of Oyster Bay, 642 N.Y.S.2d 903, 904 (N.Y. App. Div. 1998).
Demasi v. Rogers, 34 A.D.3d 720, 826 N.Y.S.2d 106, Supreme Court of New York (2006)
Kevin Demasi collided with Scott Rogers while skiing. Demasi alleged that Rogers engaged in intentional and reckless conduct that was outside of the conduct that skiers assume when skiing. See Morgan v. State of New York, 90 N.Y.2d 471, 485 (N.Y. App. Div. 1997) (holding that “participants in a sport will not be deemed to have assumed the risks of reckless or intentional conduct”). Rogers filed a Motion for Summary Judgment asserting that he did not engage in any risk-enhancing conduct that was not inherent in the activity of skiing. See Szczerbiak v. Pilat, 90 N.Y.2d 553, 557 (N.Y. App. Div. 1997) (defining “reckless or intentional conduct” as the “conscious or intentional doing of an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow, and done with conscious indifference to [the] outcome”); See Zielinski v. Farance, 291 A.D. 910, 911 (N.Y. App. Div 2002) (holding that risk of injury caused by another skier is an inherent risk of downhill skiing). The court held that summary judgment was not proper because “the distance that the plaintiff was thrown as a result of the impact, and the nature and extent of injuries incurred, raise at least a question of fact as to whether the defendant’s speed in the vicinity and overall conduct was reckless.” In New York, evidence of reckless conduct while skiing may raise a question of fact.
Singh v. Catamount Dev. Corp., 15425 (2003)
Nikolai Singh skied out of bounds colliding with a partially submerged cable at Catamount Mountain in Columbia County, New York. Singh was fourteen years old when he crashed, subsequently fracturing his shoulder and femur. Singh’s injuries resulted in three leg surgeries, two shoulder surgeries, and extensive rehabilitation. Despite his severe injuries, Singh returned to the sport of skiing approximately ten months after his accident. Although Singh, an active 14 year old, returned to skiing, Singh’s orthopedic expert testified that he would “experience partial permanent disabilities of the left shoulder and left leg/hip area should he continue to engage in an active lifestyle and demanding sports such as skiing.” Singh v. Catamount Dev. Corp., 21 A.D.3d 824, 826 (N.Y. App. Div. 2005).
The Jury returned a verdict for $18,000 for pain and suffering, but did not award Singh damages for future pain and suffering. The court held that the Jury’s award for past and future pain and suffering “deviated materially from what is reasonable compensation.”
Martin v. Fiutko, 7 Misc.3d 1003(A), 801 N.Y.S.2d 236 (A) (2005)
Brandon Martin was struck from behind by Jessie Fiutko while snowboarding. According to Martin, he was struck while standing with a group of friends at the intersection of two trails, waiting for a crowd to disperse below. Martin alleged that Fiutko, skiing from above, caused the collision by skiing fast and out of control. Martin v. Fiutko, 27 A.D.3d 1130, 1131 (N.Y. App. Div. 2006). Further, Martin asserted that Fiutko failed to maintain a proper lookout while skiing because the large group was plainly visible.
Martin sought damages for his injuries asserting that Fiutko acted recklessly. Fiutko filed a Motion for Summary Judgment claiming that skier collisions are an inherent risk of skiing under New York’s General Obligations § 18-101. Gen. Oblig. § 18-101. Following Morgan v. State of New York, the court denied summary judgment stating that Fiutko’s conduct raised a triable issue of fact as to whether he acted recklessly. Morgan v. State of New York, 90 N.Y. 2d 471, 484 (N.Y. App. Div. 1997) (holding that participants in sport “will not be deemed to have assumed the risks of reckless or intentional conduct”).
In New York, reckless conduct while skiing raises a triable issue of fact.
Gern v. Basta, 6 N.Y.3d 715 New York Court of Appeals (2006)
Patricia Gern collided with Christina Basta while skiing. Basta, traveling at a moderate speed, attempted to pass Gern at a distance of approximately six feet. Gern, the downhill skier, and unaware of the approaching Basta, turned directly into Basta’s path causing the skiers to collided. Gern sought damages for the injuries that she sustained in the accident. Basta filed a Motion for Summary Judgment alleging that she did not ski in a “reckless, intentional, or other risk-enhancing conduct not inherent in the activity of downhill skiing.” Gern v. Basta, 26 A.D.3d 807, 808 (N.Y. App. Div. 2006) (citing Kaufman v. Hunter Mtn. Ski Bowl, 240 A.D.2d 371, 372 (N.Y. App. Div. 1997)). Following Morgan, the court granted summary judgment, stating that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” Morgan v. State of New York, 90 N.Y.2d 471, 484 (N.Y. App. Div. 1997). The court stated that defendant was not skiing recklessly because she attempted to pass at a safe distance, adding that collisions are an inherent risk of downhill skiing. Zielinski v. Farace, 291 A.D.2d 910, 911 (N.Y. App. Div. 1997).
In New York, passing a skier within six feet is not reckless conduct.
Prior to 2006
A 14-year old skied out of bounds and caught his ski on a concealed cable on defendant’s mountain. His injuries included multiple fractures, weeks of traction, and months of pain. A jury award of pain and suffering that included only $18,000 for past and nothing for future pain and suffering, was set aside. The court concluded, in part, that the jury award materially deviated from reasonable compensation. Singh v. Catamount Development Corp., 801 N.Y.S. 2d 290 (N.Y. App. Div. 2005). As shown, New York courts are relatively receptive of ski injury claims, often conducting a thorough, traditional duty and standard of care analysis. However, in an unpublished opinion, Conery v. Snow Time, Inc., 2004 WL 2347212 (N.Y. Sup.), the court granted summary judgment to defendant. The plaintiff had alleged that the large wood shard on which he had been impaled was not a “natural” condition but resulted from incomplete trail expansion; the court responded that even were the shard the result of an incomplete cleanup, such was incidental to ski area maintenance, and thus an inherent risk assumed by the adult plaintiff, an experienced skier. This case encourages contrast with Basilone v. Burch Hill Operations, Inc., 605 N.Y.S. 2d 423 (Sup. Ct. App. Div. 1993). There, 15-year-old skier Dana Basilone struck a split rail fence, and her mother argued that Burch Hill should have padded it. Defendant moved for summary judgment stating there was no duty to pad poles or fences off skiable terrain, away from slopes or trails. In concluding that a triable issue of the post’s location on or off a trail, the court impliedly suggests that were the post found to have been on a skiable trail, then an argument could be made that defendant should have padded it. “On the record before us, we cannot conclude as a matter of law that the infant, an inexperienced skier, assumed the risk related to this type of man-made obstacle located within the confines of the ski trail.” Id. at 424 [emphasis added]. See also De Lacy v. Catamount Development Corp., 755 N.Y.S.2d 484 (N.Y. App. Div. 2003) (denial of summary judgment affirmed, as genuine issue of material fact with respect to whether 7-year-old was aware of, appreciated, and voluntarily assumed inherent risks of skiing, including falling from lift). This correlation by the courts between an individual skier’s own experience and comprehension of possible risks, and the level of risk actually assumed, led to the dismissal of a complaint brought by a skier injured from contact with a “submerged ice divot.” Painter v. Peek’n Peak Recreation, Inc., 769 N.Y.S.2d 678 (N.Y. App. Div. 2004). The court concluded that Painter, a skier with 60 years of experience, had assumed the particular risk of collision with the divot. Id. The risk of injury by another skier has been declared an inherent risk of downhill skiing; however, the risk actually assumed by the plaintiff is measured based on the background and experience of the plaintiff. Lamprecht v. Rhinehardt, 778 N.Y.S.2d 310 (N.Y.App. Div. 2004). See also Zielinski v. Farace, 737 N.Y.S.2d 199 (N.Y. App. Div. 2002). However, New York trial courts have questioned whether another’s negligence is in fact an inherent risk, and whether proof of reckless conduct is required to survive summary disposition of a claim. See discussion of this emerging conflict in Martin v. Fiutko, 2005 WL 742368 (N.Y. Sup.). At Hunter Mountain there is an expert trail named Eisenhower Drive. An intermediate skier inadvertently found himself on Eisenhower, having intended to take a less difficult trail. He encountered a small drop off, a patch of ice, and then a tree, the impact of which rendered him paraplegic. In attempting to avoid an assumption of inherent risk defense, plaintiff alleged that the owner’s signage and warnings were inadequate, and that he would not have been on the trail in the first place if properly warned. The court determined that even were plaintiff’s argument proved, which it was not, such a failure could not be considered a proximate cause of plaintiff’s injury. Lapinski v. Hunter Mountain Ski Bowl, Inc., 760 N.Y.S.2d 549 (N.Y. App. Div. 2003). Eisenhower Drive was the setting of an earlier federal case that was allowed to proceed to the jury on whether trail conditions themselves created a reasonable or unreasonable risk of harm for plaintiff, who fractured both legs on encountering a manmade berm. Younger v. Hunter Mountain Ski Bowl, Inc., 1995 WL 170269 (N.D.N.Y. 1995).