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

450
CA 14-01916
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, VALENTINO, AND WHALEN, JJ.


TONYA TIEDE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FRONTIER SKYDIVERS, INC., ET AL., DEFENDANTS,
AND JOHN HUBER, DEFENDANT-APPELLANT.


BURGIO, KITA, CURVIN & BANKER, BUFFALO (STEVEN P. CURVIN OF COUNSEL),
FOR DEFENDANT-APPELLANT.

FEROLETO LAW, BUFFALO (PAUL B. BECKER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered August 20, 2014. The order, insofar as
appealed from, denied the motion of defendant John Huber for summary
judgment dismissing the second amended complaint and all cross claims
against him.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted
and the second amended complaint and cross claims against defendant
John Huber are dismissed.

     Memorandum: Plaintiff, a passenger on a plane used for skydiving
jumps, commenced this action to recover damages for injuries she
sustained when the plane crashed shortly after takeoff. We previously
determined, inter alia, that Supreme Court properly granted the
motions of five other defendants to the extent that they sought to
dismiss the cause of action for gross negligence against them because
plaintiff had not alleged conduct on the part of those defendants that
“evinces a reckless disregard for the rights of others or smacks of
intentional wrongdoing” (Tiede v Frontier Skydivers, Inc., 105 AD3d
1357, 1359 [internal quotation marks omitted]). As relevant to this
appeal, John Huber (defendant), a skydiving instructor, moved for
summary judgment dismissing the second amended complaint and cross
claims against him. We agree with defendant that the court erred in
denying the motion.

     In addition to being a skydiving instructor, defendant was a
“safety and training advisor” at defendant Frontier Skydivers, Inc.
(Frontier) by appointment of the United States Parachute Association
(USPA). In that capacity, he acted as a liaison between USPA and
Frontier to ensure that there was a training program in accordance
                                 -2-                           450
                                                         CA 14-01916

with USPA curriculum in place at the drop zone, and that instructors
followed it. He also administered tests for skydiving licenses and
was responsible for the completion of accident reports and their
transmission to USPA. A week before the accident, defendant
instructed plaintiff at a one-hour course on skydiving. On the date
of the accident, plaintiff boarded the plane with a jump instructor
other than defendant, and she was seated farthest away from the “jump
door.” The last of three other skydivers to board the plane was a
pro-rated skydiver, and he sat closest to the jump door. As the plane
became airborne, the jump door opened unexpectedly and the pro-rated
skydiver stood up, despite a requirement that he wear a seatbelt, and
he repeatedly attempted to close the jump door. The pilot repeated
commands to sit down and leave the jump door alone. Two of the other
skydivers grabbed onto the pro-rated skydiver and tried to stop him,
but he persisted in attempting to close the jump door to the point
that his upper body was outside the fuselage. The pilot, with one
hand on the yoke, reached over with his other hand and attempted to
pull the pro-rated skydiver back into the plane. While the pilot’s
attention was diverted momentarily, the plane clipped a line of trees
and crashed. The pro-rated skydiver died shortly thereafter, and
plaintiff, the jump instructor, the pilot, and other skydivers
survived.

     At the outset, we agree with defendant that the court erred in
denying his motion to the extent that he sought dismissal of the cause
of action for gross negligence against him, for the reasons set forth
in our prior decision in this action (see id.). Plaintiff has not
alleged conduct against defendant that “evinces a reckless disregard
for the rights of others or smacks of intentional wrongdoing” (id.
[internal quotation marks omitted]).

     We further agree with defendant that the court erred in denying
his motion with respect to the remainder of the second amended
complaint against him. Plaintiff alleged that defendant, inter alia,
breached his duty to provide proper training for the pilot,
instructors, and other skydivers. Contrary to plaintiff’s assertion,
defendant contended in support of his motion that he owed no duty of
care to plaintiff in his position as a safety and training advisor for
the conduct that occurred on the plane. “The existence and scope of a
duty of care is a question of law for the courts entailing the
consideration of relevant policy factors” (Church v Callanan Indus.,
99 NY2d 104, 110-111; see Sanchez v State of New York, 99 NY2d 247,
252). In making such a determination, “the courts look to whether the
relationship of the parties is such as to give rise to a duty of care
. . . , whether the plaintiff was within the zone of foreseeable harm
. . . and whether the accident was within the reasonably foreseeable
risks” (Di Ponzio v Riordan, 89 NY2d 578, 583). “[T]he law draws a
line between remote possibilities and those that are reasonably
foreseeable because ‘[n]o person can be expected to guard against harm
from events which are . . . so unlikely to occur that the risk . . .
would commonly be disregarded’ ” (id.).

     We conclude that defendant established as a matter of law that
the plane crash at issue was not a reasonably foreseeable consequence
                                 -3-                           450
                                                         CA 14-01916

of defendant’s alleged failure to provide adequate training. Although
the risk may now readily be perceived with the benefit of hindsight,
we conclude that the plane crash due to the hatch door opening and the
response of the pro-rated skydiver was not “within the class of
foreseeable hazards” associated with defendant’s alleged failure to
provide proper training (id. at 584). We thus conclude that defendant
had “no cognizable legal duty to protect [plaintiff] against the
injury-producing occurrence” (id. at 586; see generally Lynfatt v
Escobar, 71 AD3d 743, 745, lv denied 15 NY3d 709). Plaintiff’s
submission of an expert’s speculative and conclusory affidavit is
insufficient to establish that defendant had a legal duty to train for
such an incident (see generally Diaz v New York Downtown Hosp., 99
NY2d 542, 544).

     We further conclude that the court erred in denying defendant’s
motion with respect to plaintiff’s claims in her bill of particulars
that defendant failed to give notice or warn of the dangers involved
in skydiving. Defendant met his initial burden regarding those claims
by establishing that he warned plaintiff of the serious risks of
injury or death, as evidenced by her initials and signature on the
release and her signature on a document warning of the hazards of
skydiving and parachuting and all “related activities.” In addition,
plaintiff testified at her deposition that she read those warnings and
viewed a video that included the warning of the dangers of skydiving
and its related activities, including the airplane ride. In
opposition to the motion, plaintiff failed to raise a triable issue of
fact with respect to those claims (see generally Zuckerman v City of
New York, 49 NY2d 557, 562).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
