                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 11, 2014                    518638
________________________________

ANDREA J. HOPE,
                     Respondent,
     v                                       MEMORANDUM AND ORDER

HOLIDAY MOUNTAIN CORPORATION
   et al.,
                    Appellants.
________________________________


Calendar Date:    October 16, 2014

Before:   Lahtinen, J.P., Garry, Egan Jr., Lynch and Devine, JJ.

                              __________


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

      Law Office of Jeffrey S. Altbach, Ferndale (Mark P.
Cambareri of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Schick, J.),
entered December 9, 2013 in Sullivan County, which denied
defendants' motion for summary judgment dismissing the complaint.

      At all times relevant, plaintiff was employed as a
teacher's assistant at the Center for Discovery in Sullivan
County. The Center houses, educates and assists developmentally
challenged individuals, and plaintiff's job duties included
"act[ing] as a one-on-one aide to a student/resident" during
recreational field trips. In August 2008, plaintiff was part of
a group of approximately 12 Center staff members and students who
traveled to Holiday Mountain Ski & Fun Park, a facility owned and
operated by defendants in Sullivan County. The park offered a
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variety of recreational activities, including go-carts, bumper
boats, a rock wall and, as pertinent here, a large slide.

      While at the park, plaintiff was assigned to supervise a
16- or 17-year-old developmentally disabled young woman
(hereinafter the student). After participating in various other
activities, plaintiff and the student went to the park's "Fun
Slide," a large, three-lane slide upon which participants climb
numerous steps to the top thereof and then descend using burlap
bags. When plaintiff and the student reached the bottom of the
slide, plaintiff attempted to help the student get up and safely
exit the area, at which point plaintiff allegedly was struck by a
young boy who had come "flying down the slide" behind them. As a
result of this collision, plaintiff purportedly fell to the
ground and, in so doing, fractured her left wrist.

      Plaintiff thereafter commenced this negligence action
against defendants, alleging that they failed to maintain a safe
distance between patrons using the Fun Slide in order to avoid
collisions at the termination thereof. Following joinder of
issue and discovery, defendants moved for summary judgment
dismissing the complaint, contending that plaintiff's action was
barred by the doctrine of primary assumption of the risk.
Supreme Court denied defendants' motion, and this appeal by
defendants ensued.

      "Under the doctrine of primary assumption of the risk, by
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. If the risks of the activity are fully
comprehended or perfectly obvious, the plaintiff has consented to
them and the defendant has performed its duty. However, a
plaintiff will not be deemed to have assumed the risks of
reckless or intentional conduct, or concealed or unreasonably
increased risks" (Fenty v Seven Meadows Farms, Inc., 108 AD3d
588, 588 [2013] [citations omitted]; see Custodi v Town of
Amherst, 20 NY3d 83, 88 [2012]; Morgan v State of New York, 90
NY2d 471, 484-485 [1997]; Layden v Plante, 101 AD3d 1540, 1540-
1541 [2012]). "Awareness of the risk of engaging in a particular
activity is to be assessed against the background of the skill
                              -3-                518638

and experience of the particular plaintiff" (DiBenedetto v Town
Sports Intl., LLC, 118 AD3d 663, 663-664 [2014] [internal
quotation marks and citation omitted]; see Morgan v State of New
York, 90 NY2d at 486), and application of the doctrine generally
presents a question of fact for a jury to resolve (see Layden v
Plante, 101 AD3d at 1541).

      The crux of defendants' argument on appeal is that
plaintiff, in violation of posted signs warning her to remain in
her own lane when exiting the Fun Slide,1 crossed into another
patron's lane and, in so doing, voluntarily assumed the known and
obvious risk of being struck by someone else descending the
slide; hence, defendants' motion for summary judgment should have
been granted. The flaw in defendants' argument on this point is
that it ignores the factual dispute as to the manner in which
plaintiff's accident occurred and, more to the point, fails to
address the issue of whether the park's staffing and operation of
the Fun Slide on the day in question unreasonably increased the
risk posed to plaintiff. As the record contains numerous
questions of fact that cannot be resolved at this juncture,
defendants' motion for summary judgment dismissing the complaint
was properly denied.2

      With respect to the accident itself, plaintiff testified
that after she and the student ascended the stairs to the top of


    1
        Although the record contains a photograph of a sign
warning Fun Slide patrons, "When Getting Off Slide Stay In Your
Lane," and the park's manager testified that this sign was in
place on the day of plaintiff's accident, plaintiff denied seeing
this or any other warning/safety sign.
    2
        To the extent that Supreme Court questioned whether the
doctrine of primary assumption of the risk could apply where, as
here, the injured plaintiff was acting in the course of her
employment at the time that the accident occurred, we note that
the record is not sufficiently developed to permit consideration
of whether plaintiff was operating under an "inherent compulsion"
(Benitez v New York City Bd. of Educ., 73 NY2d 650, 658-659
[1989]) at the time she was injured.
                              -4-                518638

the slide, they retrieved their respective bags and sat down.
According to plaintiff, as one sits at the top of the slide
looking down, the student sat in the middle of the three
available lanes, while plaintiff sat in the lane to the student's
left and the lane to the far right remained empty. Upon reaching
the end of the slide, plaintiff stood up and moved to the
adjacent middle lane to assist the student, who was sitting at
the bottom of the slide "giggling." In the process of doing so,
plaintiff testified, she was struck by a young boy "who came
flying down the slide . . . [i]n the middle [lane]," i.e., the
same lane in which the student had just descended, causing her to
fall to the ground. The attendant assigned to the Fun Slide on
the day of the accident, however, could not recall with any
degree of certainty which lane(s) plaintiff, the student or the
young boy used in descending the slide and testified that
plaintiff was injured when she tripped over the young boy at the
base of the slide while "coming forward . . . to help her
patient." This conflicting testimony creates a question of fact
as to plaintiff's position on the slide relative to both the
student and the young boy, as well as the manner in which she was
injured, thereby precluding an award of summary judgment (see
generally Ortman v Logsdon, 121 AD3d 1388, 1389-1390 [2014]).

      Moreover, even accepting that the risk of colliding with
another patron is a risk inherent in the use of the Fun Slide
(cf. Mussara v Mega Funworks, Inc., 100 AD3d 185, 192 [2012];
Zachary G. v Young Israel of Woodmere, 95 AD3d 946, 947 [2012],
lv denied 20 NY3d 857 [2013]), the record nonetheless contains a
question of fact as to whether the park's employees unreasonably
heightened the risk of a collision at the base of the slide by
failing to adequately staff or supervise the Fun Slide on the day
in question. The park's manager testified that park rules
required the attendant assigned to the Fun Slide to be stationed
at the bottom of the slide, which is where the attendant was
positioned at the time of plaintiff's accident. The manager
further testified, however, that a second attendant would be
stationed at the top of the slide on days when patron traffic was
heavy or if "disabled children" were in attendance. In this
regard, although the manager stated that attendance at the park
was "dead" on the day of plaintiff's accident, the Fun Slide
attendant testified that traffic on the slide that day was
                              -5-                518638

"moderate [to] heavy." Similarly, while the manager denied
knowing that a group from the Center would be at the park on the
day in question, he acknowledged that groups from the Center and
other organizations serving developmentally challenged clients
were at the park "every day of the week." Additionally, the
manager's testimony demonstrated that he was aware of both the
potential need for a Center staff member to assist a student in
exiting the slide and the possibility of a collision, stating,
"We always let them help their clients, but we make them stand in
front [of the slide] on the green carpet [located at the end of
the slide] . . . because you never know if somebody else is going
to come down behind them."3 Finally, the record contains
conflicting testimony as to whether Fun Slide patrons could
obtain their burlap bags and proceed to the top of the slide
before other participants had completed their run and safely
exited the area at the bottom of the slide4 and, further, whether
the attendant was adequately supervising the Fun Slide patrons
prior to plaintiff's accident (cf. Huneau v Maple Ski Ridge,
Inc., 17 AD3d 848, 849 [2005]; compare Youmans v Maple Ski Ridge,
Inc., 53 AD3d 957, 959-960 [2008]). In light of the foregoing,
defendants' motion for summary judgment dismissing the complaint
was properly denied (see generally Schmidt v Massapequa High


    3
        Indeed, when asked what plaintiff was doing at the base
of the slide at the time of the accident, the Fun Slide attendant
stated, "She kind of was doing my job where we go over and make
sure they get up and we take their sack."
    4
        The park's manager testified, "Well, the rule is that
there [are three] bags, [three] lanes. [The attendant] gives
[the patrons] the bag at the gate, they go to the top. No one
else can go to the top until they come to the bottom, those
[three] people come down to get the bag." Plaintiff, however,
testified that the bags were at the top of the slide, and the
attendant testified that the young boy who allegedly collided
with plaintiff ascended the slide "like a minute" after plaintiff
and her student had done so. Such testimony raises a question of
fact as to whether there was a violation of established
procedures that, in turn, unreasonably increased the risk posed
to plaintiff.
                              -6-                  518638

School, 83 AD3d 1039, 1039-1040 [2011]).

     Lahtinen, J.P., Garry, Lynch and Devine, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
