Franz Klammer was not involved in this incident, but he makes for great art work for the blog.

An interesting case yesterday out of New York’s Appellate Division, involving a skier that crashed into a snowboarder at the base of the bunny hill, badly injuring the boarder.

Most lawyers wouldn’t take such a case due to the assumption of risk doctrine.  I’ve discussed that before, as it often provides immunity to the one that caused the injury. Assumption of risk, as I described previously regarding an injured softball player, provides that:

a voluntary participant in a sporting or recreational activity  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, plaintiff has consented to them and defendant has performed its duty.

So wouldn’t that apply to a skier that clobbered another?  The defendant in Horowitz v. Chen moved for summary judgment on that basis.

Not so fast, said the appellate court. The defendant, it seems, was moving at 20 to 30 kilometers per hour (yes, that is the way it is written), and the plaintiff was standing in a crowd at the bottom of the beginners’ slope.

While participants in sporting activities may consent to the commonly appreciated risks inherent in a sport, the court said that doesn’t mean that they consent to “conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk.”

The court noted that this occurred in or near a marked safety zone, and that the defendant skier was zipping along in this area despite “his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.”

The court also noted the extent of the injuries (not described in the opinion), writing that “in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.”

Now the important part, for New York practitioners. This case came out of New York’s First Department. (NY has four, for you out-of-towners, the First covers Manhattan and the Bronx.) In rendering its decision, the court cited to two other cases, one in the Third and one in the Fourth.

So this represents a little new ground on the subject area of assumption of risk. If conduct is “so negligent as to create an unreasonably increased risk” then the assumption of risk doctrine can be overcome, at least for the purposes of surviving summary judgment.

And last, just because I feel like it, the legendary 1976 Olympic downhill run of Franz Klammer:

Ridin-Hy promo image from its website

Today we go horseback riding at the Ridin-Hy Resort. So put on your cowboy boots and climb into the saddle at my little stable.

Wait! Is the saddle secure? I know, you’ve only had a grand total of 10 hours of horseback riding experience in your life, but isn’t that enough to know that the saddle may slip and you might fall to the ground?

Isn’t that what assumption or risk is all about! It’s a horse: everyone knows they kick, they toss people, sometimes folks get hurt!

You’re not going to blame me for flopping off the horsie on the beginner ride, are you?

What do you mean you want to sue me because you got hurt? So your saddle slipped. It can happen. You must have been sitting on it wrong! Here’s how our funny judge wrote about you:

As her horse again began to move forward she attempted to straighten the saddle without success and fell. It is not clear from the record in this motion in limine if the saddle came off of the horse but the plaintiff certainly did.

Huh? Whaddya mean, judge, that I can’t show the jury the release she signed!  I know, in New York we can’t get cases like this dismissed by having the participant simply sign a waiver absolving me of negligence, as that would violate the law and be against public policy.

But look, that risk was right here there in our release that you signed! OK, well maybe that particular risk isn’t really spelled out, but shouldn’t we show the release to the jury anyway so that the jury might get the gist of it? The judge summarized my argument well!

“The opposition’s novel theory is that this unenforceable agreement’s language can still be used, perhaps with redactions, to demonstrate the plaintiff’s express awareness that saddles may loosen and riders may fall…”

OK, I see judge.  You’re going to keep this release away from the jury because our injured rider was still a rookie, or at least, the jury gets to determine that:

[A]n assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant’s skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant’s conduct’ ” (Decision: Boland v Riding High Dude Ranch, Inc.)

So maybe next time I’ll put this into the release — that the saddle may slip — so that riders are aware of the problem and can recognize problems before they get hurt?

Perhaps I’ll get that Turkewitz fellow to write me a better release — one that isn’t just poorly designed to dissuade lawsuits and gets chucked as being against public policy — to actually educate participants in the sporting activity they are undertaking. So they are less likely to get injured to begin with.

Like he did here with his trail race, whose release and waiver he once crowd-sourced on his blog.

Because in order to assume a risk, one has to actually have an awareness that the risks exist.