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

138
CA 13-01104
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.


MARK MOORE AND STACY MOORE, INDIVIDUALLY AND AS
PARENTS AND NATURAL GUARDIANS OF SYDNEY MOORE,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

RICHARD E. HOFFMAN, DEFENDANT-APPELLANT.


LAW OFFICES OF KAREN L. LAWRENCE, PITTSFORD (BARNEY BILELLO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (RICHARD A. GRIMM, III, OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered February 26, 2013 in a personal injury action.
The order denied the motion of defendant for summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by their daughter while skiing. According to
plaintiffs, their daughter’s arm was fractured by defendant’s
“carelessness and negligence” in colliding with their daughter from
behind. We conclude that Supreme Court properly denied defendant’s
motion for summary judgment dismissing the complaint because there are
issues of fact whether the doctrine of assumption of the risk applies
and whether defendant’s carelessness in colliding with plaintiffs’
daughter was reckless conduct.

     The daughter testified at her deposition that she was a novice
skier and that, at the time of the collision, she was skiing down an
easy trail. As she entered the slow skiing area near the end of the
trail, she heard defendant yell “whoa” three times just before he
struck her from behind. The friend with whom plaintiffs’ daughter was
skiing asserted in an affidavit submitted by plaintiffs in opposition
to the motion that she observed the daughter slowly enter the slow
skiing area and then observed defendant, who was skiing “very fast,”
“r[u]n her over from nearly directly behind,” “[w]ithout slowing,
stopping or otherwise turning to avoid” her.

     It is well established that, “by engaging in a sport or
                                 -2-                           138
                                                         CA 13-01104

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). “While awareness or appreciation of
such risks must be ‘assessed against the background of the skill and
experience of the particular plaintiff’ . . . , ‘[t]he risk of injury
caused by another skier is an inherent risk of downhill skiing’ ”
(DeMasi v Rogers, 34 AD3d 720, 721). Nevertheless, “a sporting
participant ‘will not be deemed to have assumed the risks of reckless
or intentional conduct’ ” (Thornton v Rickner, 94 AD3d 1504, 1504,
quoting Morgan, 90 NY2d at 485). “ ‘Generally, the issue of
assumption of [the] risk is a question of fact for the jury’ ” (Hyde v
North Collins Cent. Sch. Dist., 83 AD3d 1557, 1558; see Clauss v Bush,
79 AD3d 1397, 1398).

     Here, even assuming, arguendo, that defendant met his initial
burden on the motion by “establishing that he did not engage in any
‘reckless, intentional or other risk-enhancing conduct not inherent in
the activity’ of downhill skiing that caused or contributed to the
accident” (Zielinski v Farace, 291 AD2d 910, 911, lv denied 98 NY2d
612), we conclude that there is a triable issue of fact whether
defendant’s conduct rose to the level of recklessness and thus was
over and above the risk assumed by plaintiffs’ daughter, a novice
skier who was injured while skiing slowly on an easy trail in a slow
skiing area. Indeed, we note that defendant struck plaintiffs’
daughter with such force that the daughter’s arm was “shattered” and
defendant’s kidney was lacerated, and thus there is “at least a
question of fact as to whether the defendant’s speed in the vicinity
and overall conduct was reckless” (DeMasi, 34 AD3d 721-722).




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
