                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 20, 2016                   522741
________________________________

ELIZABETH CONNOLLY,
                      Appellant,
     v                                      MEMORANDUM AND ORDER

WILLARD MOUNTAIN, INC., et al.,
                    Respondents.
________________________________


Calendar Date:   September 15, 2016

Before:   Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.

                             __________


      Anderson, Moschetti & Taffany, PLLC, Latham (Ingrid Effman
of counsel), for appellant.

      Roemer Wallens Gold & Mineaux LLP, Albany (Matthew J. Kelly
of counsel), for respondents.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Melkonian, J.),
entered December 21, 2015 in Albany County, which granted
defendants' motion for summary judgment dismissing the complaint.

      On February 20, 2013, plaintiff was snow tubing with her
then 12-year-old son at Willard Mountain, a recreational facility
owned and operated by defendants. The tubing course was
approximately 1,200 feet long, including a 400-foot "run-out"
area partially covered with hay that was intended to slow the
riders. At the end of the run-out area, there was a net that
separated the course from a drop off. Between the hay covered
area and the net was an approximately two-foot tall berm or mound
of snow. Plaintiff and her son were tubing in tandem, that is,
they rode the course while holding onto the handles of each
                              -2-                522741

other's tubes. After riding in this manner a number of times,
the two generated enough speed during a final run to ride through
the run-out area, over the berm and into the net. Plaintiff
commenced this negligence action to recover for the injuries she
sustained during this last run. Following joinder of issue,
defendants moved for summary judgment, arguing that plaintiff
assumed the risks associated with snow tubing. Supreme Court
granted the motion and plaintiff now appeals.

      It is settled that a person who voluntarily participates in
a recreational activity such as snow tubing, "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
[1997]; see Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 958,
[2008]; Huneau v Maple Ski Ridge, Inc., 17 AD3d 848, 849 [2005];
Tremblay v West Experience, 296 AD2d 780, 780 [2002]; Daigle v
West Mtn., 289 AD2d 838, 839 [2001]). Such a person, however,
will not assume the risks of reckless or intentional conduct, nor
will a claim be barred where the "conditions caused by the
defendants' negligence are unique and created a dangerous
condition over and above the usual dangers that are inherent" in
the activity (Morgan v State of New York, 90 NY2d at 485
[internal quotation marks and citation omitted]; see Youmans v
Maple Ski Ridge, Inc., 53 AD3d at 958-959). When determining
whether the doctrine applies, we assess the participant's
knowledge of the dangerous condition and consequent risk "against
the background of [his or her] skill and experience" (Morgan v
State of New York, 90 NY2d at 486; see Hope v Holiday Mtn. Corp.,
123 AD3d 1274, 1275 [2014]).

      Here, defendants submitted the deposition testimony of the
owner and certain employees who were working at the tubing hill
on the day of plaintiff's accident. The owner testified that the
net was installed to stop tubers who failed to slow and stop as
expected in the run-out area. Further, he testified that,
although the hay was supposed to prevent tubers from hitting the
net, he believed that it happened daily. The supervisor at the
tubing hill testified that, at the beginning of the day, two
employees rode tubes down the hill to determine where the hay
should be distributed based on where their tubes stopped. The
                              -3-                522741

attendant assigned to work at the base of the run testified that,
throughout the day, she distributed hay across the run-out area
to slow riders down and "fluffed" it as needed. The supervisor
testified that once it appeared that the tubes were descending
too quickly based on changing conditions, she directed that the
tandem rides be limited to one adult and one child. There is no
dispute that plaintiff had been snow tubing at Willard Mountain a
number of times before February 20, 2014. Moreover, on that day,
plaintiff and her son reached the berm on several earlier runs
but continued to ride tandem. In our view, this evidence was
sufficient to meet defendants' burden of demonstrating that
plaintiff assumed the risk of hitting the net and that the risk
was inherent in the activity (see Youmans v Maple Ski Ridge,
Inc., 53 AD3d at 959; Tremblay v West Experience, 296 AD2d at
781).

      Upon such a showing, it 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 (Youmans v Maple Ski Ridge, Inc., 53 AD3d at 959; see
Hope v Holiday Mtn. Corp., 123 AD3d at 1275-1276; Daigle v West
Mtn., 289 AD2d at 839-840). 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
                              -4-                  522741

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."

      When we consider this evidence in the light most favorable
to plaintiff, as we must (see Huneau v Maple Ski Ridge, Inc., 17
AD3d at 849; Daigle v West Mtn., 289 AD2d at 840), we find that
summary judgment was not appropriate. In our view, whether the
base attendant adequately maintained the hay in the run-out area
and whether it was appropriate under the circumstances to allow
plaintiff to ride tandem with her son present factual questions
with regard to whether defendants unreasonably increased the risk
that plaintiff would be injured (see Hope v Holiday Mtn.
Corp.,123 AD3d at 1277; Huneau v Maple Ski Ridge, Inc., 17 AD3d
at 849; Daigle v West Mtn., 289 AD2d at 840).

     Peters, P.J., Egan Jr., Rose and Aarons, JJ., concur.



      ORDERED that the order is reversed, on the law, with costs,
and motion denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
