The Fourth Department determined plaintiff had raised a question of fact whether he assumed the risk of a skiing injury. Plaintiff fell and slid headfirst into an unpadded portion of a pole on a snowmaking machine. The court rejected defendant’ argument that the General Obligations Law, not the common law controlled:
Although there was padding on the upper portion of the pole, plaintiff collided with the lower, unpadded portion of the pole. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff assumed the risks associated with the sport of skiing. We agree with plaintiff that Supreme Court properly denied the motion. We note at the outset that General Obligations Law § 18-107 provides that, “[u]nless otherwise specifically provided in this article, the duties of skiers, passengers, and ski operators shall be governed by common law” and, contrary to defendant’s contention, the precise circumstances of plaintiff’s accident are not covered by article 18 of the General Obligations Law. Thus, the common law applies where, as here, plaintiff is alleging the negligent placement and inadequate padding of defendant’s snowmaking machines, a condition not “specifically addressed by the statute” … .
It is well settled under the common law that “[v]oluntary participants in the sport of downhill skiing assume the inherent risks of personal injury caused by, among other things, terrain, weather conditions, ice, trees and man-made objects that are incidental to the provision or maintenance of a ski facility” … . Here, although defendant met its initial burden by establishing that the accident was caused by the inherent risks in the sport of downhill skiing, plaintiff raised a triable issue of fact by submitting the affidavit of his expert … . Plaintiff’s expert asserted therein that the snowmaking machine was on the ski trail and was insufficiently padded, thus raising an issue of fact whether defendant “failed to maintain its property in a reasonably safe condition” … . Dailey v Labrador Dev. Corp., 2016 NY Slip Op 01072, 4th Dept 2-11-16
INSURANCE LAW (QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP SUPPORTED AN INSURANCE MALPRACTICE ACTION)/MALPRACTICE, INSURANCE (QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP SUPPORTING AN INSURANCE MALPRACTICE ACTION EXISTED)