Bennett v. Kissing Bridge Corp.

Appeal from an order of the Supreme Court, Erie County (Peter J. Notaro, J.), entered November 14, 2003. The order denied defendant’s motion for summary judgment dismissing the complaint in a personal injury action. It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs, the motion is granted and the complaint is dismissed. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Michael S. Bennett (plaintiff) when he was downhill skiing on defendant’s premises. Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint (see Painter v Peek’N Peak Recreation, 2 AD3d 1289 [2003]). In support of its motion, defendant submitted plaintiffs deposition testimony, wherein plaintiff testified that he initially fell when he skied through slush and “hit a dry spot” in the middle of the Lower Shuttle trail; “slid on the ice” and fell; and slid under a wooden fence to the bottom of a ravine, where he hit a tree and fractured his right leg. Defendant also submitted the deposition testimony of its president, who testified that the purpose of the fence was to serve as a “special warning” to skiers, as well as the deposition testimony of its executive vice-president, who testified that the purpose of the fence was to “delineate the edge of [the] gully.” Thus, defendant met its initial burden by submitting evidence establishing as a matter of law that plaintiff’s accident was caused by “variations in terrain . . . [and] ice” (General Obligations Law § 18-101 [1]), i.e., that the accident was caused when plaintiff “slid on ice,” fell and hit a tree, all of which are inherent risks in the sport of downhill skiing. In opposition to defendant’s motion, plaintiffs failed to raise an issue of fact sufficient to defeat the motion (see generally [991] Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The dissent relies on an “expert” affidavit submitted by plaintiffs in opposition to defendant’s motion. We conclude that there is no basis in the record for the alleged expert’s assertion that the purpose of the fence was to serve as a “barrier.” Rather, the testimony of defendant’s employees establishes that the fence was erected in order to serve as a warning to skiers. Thus, plaintiffs failed to submit evidence sufficient to raise an issue of fact whether defendant “created a dangerous condition over and above the usual dangers inherent in the sport of [downhill skiing]” (Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]; see Liccione v Gearing, 252 AD2d 956 [1998], lv denied 92 NY2d 818 [1999]). All concur except Gorski and Pine, JJ., who dissent and vote to affirm in the following memorandum.