Instructor Takes Novice Skier Down the Bunny Trail:

This was originally published on the SGR Blog.

Was Training Sufficient to Trigger Skier’s Assumption of Risk?

New York State has a statutory “Safety Skiing Code” that allocates training duties and safety obligations between the skier and the facility operator. And, as a recent case illustrates, when an accident ineluctably occurs on a ski slope after a training lesson, the Court must weigh the fact-specific circumstances against those statutorily apportioned duties and obligations.

On January 1, 2014, Daniella Bodden, then 16 years old, was injured while skiing at Holiday Mountain Fun Park, a facility in Sullivan County owned and operated by Holiday Mountain Fun Park Inc. Bodden, a first-time skier, rented equipment from the facility and received a private one-hour lesson from a ski instructor. The lesson took place on a slope referred to as the “bunny hill.” After the instructor showed Bodden the pizza wedge technique for turning and stopping, she and the instructor went down the bunny hill together five or six times. By that point, the instructor felt that Bodden was ready to progress to one of the designated trails known as Benson’s Glade. Although Bodden expressed some concern, the instructor assured both Bodden and her mother, Lola Bernard, that Bodden was ready and that the instructor would be with Bodden the entire time. Coming down Benson’s Glade, Bodden gained too much speed and “lost control,” eventually crashing into an orange safety fence at the base of the trail, injuring herself.

As a result, Bodden and her mother, derivatively, commenced a negligence action against Holiday Mtn. and others, alleging, among other things, that Bodden’s injuries were caused by their negligence in failing to gauge her skill level and in improperly advancing her to an intermediate ski trail far beyond her skill and ability. Holiday Mtn. and the instructor raised several affirmative defenses, including that the action was barred by the doctrine of primary assumption of risk.

Following discovery, Holiday Mtn. and the instructor moved for summary judgment dismissing the complaint. The Bodden’s opposed the motion, arguing, among other things, that questions of fact existed as to whether the actions of Bodden’s instructor increased the risk of injury and whether Bodden fully appreciated and assumed the risk. Emphasizing that the Bodden’s failed to produce any evidence that Bodden was unable to perform the necessary wedge technique for slowing down and stopping or that the trail utilized was unsuitable for novice lessons, Supreme Court granted the motion and dismissed the complaint. Finding that the risk of this type of injury could not be described as anything other than inherent to the sport of skiing and should have been comprehended even by a novice.  The Bodden’s appealed.

Under the assumption of risk doctrine, a ski area operator is relieved from liability for risks inherent in the sport of downhill skiing when the participant is aware of, appreciates, and voluntarily assumes those risks. Whether a skier is aware of and appreciates a particular risk must be assessed against the background of the skill and experience of the participant.

Under New York’s Safety in Skiing Code, the Legislature determined that downhill skiing contained inherent risks that might result in personal injury. In light of such recognition, both skiers and ski area operators have certain defined duties. Pertinent here, skiers have a duty “[n]ot to ski beyond their limits or ability to overcome variations in slope, trail configuration, and surface or subsurface conditions.” A skier must also “remain in constant control of speed and course at all times while skiing to avoid contact with plainly visible or marked obstacles and with other skiers and passengers.” Ski operators, in turn, are charged with having “personnel appropriately trained in the instruction of skiers … in methods of risk reduction while using ski slopes … and … with respect to the risks inherent in the sport”.

In support of the motion for summary judgment, Holiday Mtn. submitted, among other things, Bodden’s deposition testimony. She acknowledged that the instructor began the lesson on the bunny hill, where she taught Bodden the wedge technique for stopping and slowing down and answered all of her questions. Although Bodden did not fall while on the bunny hill, she “felt that [she] didn’t know how to stop completely because the end of the bunny hill [was] kind of flat, so [skiers] stop on [their] own” there. She described feeling only “somewhat confident” at that time.  After going down the bunny hill five or six times, Bodden testified that the instructor expressed her belief that Bodden was ready to try Benson’s Glade trail. Bodden asked the instructor whether she was “sure” of that assessment, to which the instructor allegedly responded, “Yes, I’ll be with you the whole entire time. Don’t worry.” In response, Bodden said, “Okay.”

Bodden maintained that, while on the chair lift, she informed the instructor that she did not feel confident going down a big hill and, after exiting the chair lift and proceeding to the top of Benson’s Glade, stated that she was nervous. According to Bodden, the instructor responded that she “shouldn’t be worried” and she was “going to be with [Bodden] the entire time.”

Although Bodden attempted to do the pizza wedge technique on Benson’s Glade, she lost control about halfway down the trail. Bodden testified that she yelled out to the instructor asking for help because she could not slow down, but the instructor did not tell her to sit down to stop her momentum. Upon reaching the end of the trail, Bodden made a left turn onto a flat runout area and hit a fence located on the left of the runout near one of the chair lifts. The fence served as a warning to skiers that the lift path was on the other side and prevented skiers from entering that area. Bodden acknowledged during her deposition that she knew the risks of falling and injuring herself before beginning the ski lesson.

The instructor’s deposition testimony differed in certain crucial respects. She testified that, because she was aware that Bodden was a novice skier, she began by teaching Bodden the basics, “telling her that the pizza was going to be her best friend and it would be the thing that helped her slow down and stop.” She also taught Bodden how to turn and told Bodden that she “would be with her the entire time.” Although the instructor could not recall how many times Bodden went down the bunny hill before advancing to the other ski trail, she testified that the bunny hill “took up most of the lesson” — approximately 45 minutes — and that Bodden did not exhibit any instability or problems navigating the hill. Near the end of the lesson, the instructor told Bodden that she was doing very well and that she felt Bodden was ready to go down a “beginner hill.” According to the instructor, Bodden told her she felt comfortable with that plan. The instructor further testified that, upon reaching the top of Benson’s Glade, she told Bodden to stay in a pizza wedge formation and informed her that “if she felt the need to stop, that [they] could stop.” The instructor confirmed that Bodden was initially in control as they proceeded together down Benson’s Glade, but Bodden’s ski tips “started coming … apart” towards the middle of the trail, causing her to gain speed and pass in front of the instructor. The instructor was adamant that she “told [Bodden] multiple times to widen her pizza” and also instructed her to “try and fall over.” The instructor testified that she tried to grab Bodden’s jacket towards the end of Benson’s Glade near a “sharper turn” where she had “witnessed multiple people coming straight down and ending up in the trees” but was unsuccessful. The Court found it telling that the instructor, a very experienced skier, acknowledged that Bodden was “going at such a speed” that she was unable to catch up to her.

Holiday Mtn. also submitted an affidavit from the instructor, who stated that, although Benson’s Glade is “marked as a `more difficult’ blue square on the trail map,” it was, in reality, “more in line with the difficulty level that a skier would typically expect of a green trail.” In that regard, she explained that, because the ski area has “fewer trails and less skiable terrain … than many other ski areas in New York,” the difficulty levels of its trails were inflated. According to the instructor, “[a]part from the [bunny] hill … Benson’s Glade was the easiest open trail at Holiday Mountain [and] [was] often used for lessons with novice skiers.” There was, however, an easier green circle trail that was closed.

On the record before the Court, Holiday Mtn. did not meet the prima facie burden to establish the absence of a triable issue of fact on the doctrine of primary assumption of risk. A factual dispute remained as to whether Bodden 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 was 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 by the Court was the fact that Bodden was a novice skier and was taken on a trail designated as intermediate on the trail map.  And the instructor explained that, although Benson’s Glade was formally designated an intermediate trail, it was more akin to a beginner’s trail. And the instructor 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 created 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 the Bodden’s, the Court concluded that triable issues of fact existed as to whether the instructor unreasonably increased the risk of injury and whether Bodden voluntarily assumed such risk.

Postscript: The Court agreed with the Bodden’s that the provisions of the equipment rental form under which Bodden purportedly agreed to “assum[e] all risks of death or injury to any part of [her] body while using th[e] equipment” and to release Holiday Mtn. and the instructor of liability, to the extent permitted by law, for any injuries resulting from their negligence, did not preclude recovery under the circumstances presented.

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