The Third Department, reversing Supreme Court, determined there was a question of fact whether the operators of a tubing hill unreasonably increased the risk of injury. The issues included whether there was adequate supervision, whether there was adequate protection at the bottom of the hill (hay to slow the tubes), and whether mother and son should have been allowed to tube together (thereby increasing speed):
… [I]t was plaintiff’s burden to demonstrate “facts from which it could be concluded that defendant . . . unreasonably enhanced the danger . . . or created conditions which were unique or above those inherent in [the] activity …”. A supervisor for defendants testified that on busy days, two people were assigned to work at the base of the tubing hill to spread and “fluff” the hay as needed based on conditions. At the time of the accident, however, there was only one attendant working in this area. Further, the supervisor decided to limit the tandem riders to a parent and a child based on conditions and confirmed that weight affected the speed of the tubes, i.e., the greater the weight, the greater the speed. Plaintiff testified that just before the accident, the attendant at the top of the tubing hill assured her that it was safe for her to ride in tandem with her adult-sized son, who was nearly six feet tall and weighed approximately 250 pounds. Plaintiff’s son testified that “there wasn’t a whole lot of hay” spread at the bottom of the course. A nonparty witness testified that the tubing park was very busy and that, before the accident, he observed that the hay had diminished to the point where tubers were dragging their feet to stop their tubes. Notably, defendant’s base attendant testified that once the tandem riders were limited to one adult and one child, no other groups went past the hay, while plaintiff and her son “blew through everything.” She recalled being surprised to see two adult-sized people coming down in tandem because “it was supposed to be an adult and a child.” Connolly v Willard Mtn., Inc., 2016 NY Slip Op 06937, 3rd Dept 10-20-16
NEGLIGENCE (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)/ASSUMPTION OF THE RISK (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)/TUBING (QUESTION OF FACT WHETHER OPERATORS OF A TUBING HILL UNREASONABLY INCREASED THE DANGERS INHERENT IN TUBING)