        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

401
CA 11-02022
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


DEBORAH A. THORNTON AND MARK L. THORNTON,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

ERIC RICKNER, DEFENDANT-APPELLANT.


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FARACI LANGE, LLP, ROCHESTER (CAROL A. MCKENNA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT DEBORAH A. THORNTON.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered April 6, 2011 in a personal injury action. The
order denied the motion of defendant for summary judgment dismissing
the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the amended complaint is dismissed.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Deborah A. Thornton (plaintiff) on a ski trail
when she was struck from behind by defendant, a snowboarder. We agree
with defendant that Supreme Court erred in denying his motion for
summary judgment dismissing the amended complaint on the ground that
plaintiff assumed the risks associated with the sport of skiing.
“[B]y engaging in a sport or recreational activity, a participant
consents to those commonly appreciated risks which are inherent in and
arise out of the nature of the sport generally and flow from such
participation” (Morgan v State of New York, 90 NY2d 471, 484). “The
risk of injury caused by another skier [or snowboarder] is an inherent
risk of downhill skiing” (Zielinski v Farace, 291 AD2d 910, 911, lv
denied 98 NY2d 612). Of course, however, a sporting participant “will
not be deemed to have assumed the risks of reckless or intentional
conduct” (Morgan, 90 NY2d at 485).

     Defendant met his initial burden on the motion by establishing
that “he did not engage in any risk-enhancing conduct that was not
inherent in the activity of skiing [or snowboarding], which caused or
contributed to the accident” (DeMasi v Rogers, 34 AD3d 720, 721; see
Clarke v Catamount Ski Area, 87 AD3d 926, 927). Defendant submitted
his deposition testimony in which he testified that he had snowboarded
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                                                         CA 11-02022

on only one prior occasion, a week earlier, and that the trail where
the accident occurred was a beginner’s trail. Defendant further
testified that icy conditions on the trail made it difficult for him
to turn and stop. According to defendant, he was snowboarding between
a low and medium speed when he saw plaintiff, attempted to stop, lost
his balance, and ultimately collided with her. Defendant was heading
in plaintiff’s direction because he was trying to steer clear of a
group of people on the trail. Defendant also submitted the deposition
testimony of a member of the National Ski Patrol who witnessed the
accident. He testified that the trail where the accident occurred is
a “green” trail with easier terrain, that the trail is appropriate for
beginners, and that ski schools often use that trail to teach
beginners. He further testified that he believed the accident was
caused by defendant’s “[l]ack of ability,” and he noted that, “just
before impact, [defendant] was either falling down or trying to fall
down, because it appeared that he wasn’t able to turn.” In opposition
to the motion, plaintiffs failed to raise an issue of fact whether
“defendant’s conduct was intentional or reckless, outside of the risks
skiers normally assume” (DeMasi, 34 AD3d at 721; see Clarke, 87 AD3d
at 927).




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
