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QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant's motion for summary judgment in this skiing accident case should not have been granted. Plaintiff was injured in a collision with defendant. The assumption of the risk doctrine did not preclude the suit because a question of fact had been raised about whether defendant acted recklessly:

… [P]laintiffs submitted, inter alia, an affidavit from an emergency room physician who was also an 11-year veteran of the National Ski Patrol. Based on his review of the depositions and other records related to the case, the expert opined that, given the nature and extent of plaintiff's injuries, “there [was] no question [that] the force with which [defendant] impacted [plaintiff's] left side and back was immense” and that plaintiff's injuries were “not consistent with [defendant's] deposition testimony” that he had come to or nearly come to a complete stop. The expert further opined that, “[g]iven that [plaintiff] was skiing slowly at the time of the collision, the severe injuries sustained by [both] men, and their unanimous testimony that the collision was severe, it [was] clear [that defendant] was snowboarding at an extremely high rate of speed at the time of the collision.” The expert thus concluded that defendant had “unreasonably increased the risk of harm” to plaintiff by cutting across the beginner trail “at an extremely high rate of speed . . . knowing that there would be skiers and snowboarders traveling down [the beginner trail]” and that defendant's conduct constituted “an egregious breach of good and accepted snowboarding practices.” * * *

… [T]the record establishes that the collision was exceedingly violent and, inasmuch as we must accept as true plaintiff's testimony that he was the one who was skiing slowly … , there is “at least a question of fact . . . whether . . . defendant's speed in the vicinity and overall conduct was reckless” … . Contrary to defendant's contention, the affidavit of plaintiffs' expert was neither conclusory nor speculative … . Sopkovich v Smith, 2018 NY Slip Op 06342, Fourth Dept 9-28-18

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/SKIING (QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ASSUMPTION OF RISK (SKIING ACCIDENT, QUESTION OF FACT WHETHER DEFENDANT ACTED RECKLESSLY IN THIS SKIING ACCIDENT CASE, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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