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PLAINTIFF, A NOVICE SKIER, WAS INJURED DURING A LESSON; THERE WAS A QUESTION OF FACT WHETHER THE INSTRUCTOR UNREASONABLY INCREASED THE RISK BY HAVING PLAINTIFF SKI DOWN AN INTERMEDIATE HILL WITHOUT ADEQUATE TRAINING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff-skier’s (Bodden’s) negligence complaint should not have been dismissed on the ground she assumed the risks inherent in skiing. Plaintiff was a novice and was taking a lesson at the time she was injured. The instructor had plaintiff go down the “bunny hill” a few times and then took plaintiff to an intermediate hill. Plaintiff lost control, was unable to stop and struck a fence:

A factual dispute remains as to whether Bodden [plaintiff] expressed reservations to the instructor about whether she was ready to progress to Benson’s Glade and whether the instructor encouraged her in a manner that was overzealous under the circumstances. It is also unclear whether the instructor taught Bodden, before going on the trail, how to safely fall if she could not remain in the pizza wedge formation, and whether she yelled out to Bodden to do so after she lost control. Although Bodden conceded that she knew the risks associated with skiing and had successfully completed several runs down the bunny hill, she had limited opportunity to practice the technique that she had been taught for slowing down and stopping under real life circumstances, as the bunny hill was primarily flat and, according to Bodden, “skiers stop[ped] on their own there.” Not to be overlooked is the fact that Bodden was a novice skier and was taken on a trail designated as intermediate on the trail map. We recognize that defendants proffered an affidavit from the instructor explaining that, although Benson’s Glade is formally designated an intermediate trail, it is more akin to a beginner’s trail. Notably, however, the instructor revealed that she was aware of an area of Benson’s Glade that had a “sharper turn” and had “witnessed multiple people coming straight down and ending up in the trees” near that area. Such testimony creates a question of fact as to whether Benson’s Glade was appropriate for a novice skier such as Bodden. Viewing the evidence in the light most favorable to plaintiffs, we conclude that triable issues of fact exist as to whether the instructor unreasonably increased the risk of injury and whether Bodden voluntarily assumed such risk … . Bodden v Holiday Mtn. Fun Park Inc., 2021 NY Slip Op 07330, Third Dept 12-23-21

 

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FAMILY COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, AMEND A DISMISSAL ORDER... PLAINTIFF’S COMPLAINT AGAINST THE DEFAULTING DEFENDANT-ATTORNEY SUFFICIENTLY...