Defendant moves for an Order granting it summary judgment pursuant to CPLR §3212. In deciding the motions for summary judgment, the following papers were considered by the Court: (1) Notice of Motion, Affirmation and Affidavit in Support, Exhibits A to O, (2) Affirmation in Opposition, Exhibits A to D, (3) Affirmation in Reply.

Plaintiffs commenced this action to recover damages for injuries sustained by Kathleen Berdecia, while snow tubing at a facility owned and operated by defendant. Plaintiffs maintain that when Kathleen Berdecia went down the hill for the second time on February 15, 2004, she was pushed by an attendant, the tube immediately spun, she was "spinning like a top" when her left foot hit the ice wall/bern and fractured her left ankle.

Defendant maintains that the litigation records it produced reveals no evidence that the defendant committed "any negligent act that caused the alleged injuries in this matter" and that the same record makes clear that "Plaintiff Kathleen Berdecia assumed the risk of the injuries she incurred". Plaintiff would convince this Court that the determinative issue is whether the act of pushing or spinning patrons, without their permission, resulted in a dangerous condition above the usual dangers inherent in snow tubing and that questions of fact regarding this issue preclude summary judgment.

Under established "primary assumption of the risk" principles, a person who engages in a sport 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" [Morgan v. State of New York, 90 NY2d 471, 484, 662 NYS2d 421, 685 NE2d 202 (1997)] but does not assume risks that result in a "dangerous condition over and above the usual dangers inherent in the activity". Rios v. Town of Colonie, 256 AD2d 900, 900, 682 NYS2d 272 [3rd Dept., 1998]. Simply, the "voluntary participant is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport; the landowner need protect the plaintiff only [*2]from unassumed, concealed, or unreasonably increased risks, thus to make conditions as safe as they appear to be." Manoly v. City of New York, 29 AD3d 649, 649, 816 NYS2d 499, 500 (2nd Dept., 2006).

Proponents of a motion for summary judgment must demonstrate entitlement to judgment as a matter of law through the tender of evidentiary proof in admissible form. Kosson v. Algaze, 84 NY2d 1019, 646 NE2d 1101, 622 NYS2d 674 (1995). Once the movant sets forth evidentiary facts establishing a prima facie entitlement to summary judgment, the opponent has the affirmative burden to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact" to "lay bare its proof". Zuckerman v. New York City Transit Authority, 49 NY2d 557, 404 NE2d 718, 427 NYS2d 595 (1980).

This Court holds that Defendant, as the proponent of the within summary judgment motion has met its burden, but that Plaintiff has failed to produce evidence that requires a trial herein.

The Submitted Record

The Plaintiff does not submit an affidavit or a person with actual knowledge, and instead relies on testimony given by Plaintiff Kathleen Berdecio at her 50-h hearing and her examination before trial. Thus, the Court reviewed both of the 100 page transcripts memorializing Plaintiff's 50-h hearing examination before trial ^[FN1].

At his examination before trial, Defendant's crew manager testified that the attendants were instructed not to push or spin a rider's tube, unless requested to do so by the rider. At her examination before trial, Plaintiff Kathleen Berdecia testified that on the date of the incident complained of, no one asked her if she wanted "a push" (Berdecia November 10, 2005 EBT Transcript at p. 31) or a "spin" (Berdecia November 10, 2005 EBT Transcript at p. 29) . She further testified that she did not ask to be spun, and that she did not have any communication with the attendant on either of her "runs" (Berdecia November 10, 2005 EBT Transcript at p. 29)^[FN2]. Nonetheless, she also testified that the date of the incident complained of had been her second time snow tubing at the Defendant's facility having gone previously in January 2004 (Berdecia October 8, 2004 50-h transcript at p. 12) at which time she went down the hill twice and had been pushed (Berdecia November 10, 2005 EBT Transcript at p. 31) and further that she had been pushed the first time she went down the run on February 15, 2004 (Berdecia November 10, 2005 EBT Transcript at p. 26) all the foregoing without incident. The Plaintiff also testified [*3]that in some cases a push was necessary to get the patron over "a little bit of a hump...[i]t's kind of hard to get over that when you are sitting in your tube" (Berdecia October 8, 2004 50-h transcript at p. 29). Also of note, at her 50-h examination ^[FN3], Kathleen Berdecia testified that she "felt like" she "was spun" (Berdecia October 8, 2004 50-h transcript at p. 38), but a year later at her examination before trial in November, 2005, she testified that she was unsure whether the attendant "spun the tube itself or if he pushed" her (Berdecia November 10, 2005 EBT Transcript at p. 28).

Defendant's present no evidence that its employees did not push or spin the Plaintiff. Instead they rely on the foregoing statements to conclude that Plaintiff's "sole theory of negligence" that she was "improperly spun' by the Count attendant" was "speculative" as she was assuming she was spun. Defendant further contends that the record is replete with admissions by Kathleen Berdecia that the rider could not control the tube once it started down the hill. Indeed, Defendant's crew manager submitted an affidavit wherein he states that in his "experience, it is common for tubes to spin as soon as they and the patron go down the hill, regardless of whether the attendant even touched the tube."

Even when viewing this evidence in the light most favorable to the non-movant, as this Court is obligated to do, [see, Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept., 1990)], this Court holds that summary judgment is appropriate herein.

Legal Discussion

As set forth above, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks that are inherent in and arise out of the activity and flow from such participation and pursuant to the doctrine of assumption of risk, such a participant may not seek compensation for injuries suffered as a result of some risk or danger usually associated with the sport or activity. See, Auwarter v. Malverne Union Free School District, 274 AD2d 528, 715 NYS2d 852 (2d Dep't 2000); Lisok v. Club Exit, Inc., 15 AD3d 630, 790 NYS2d 223 (2d Dep't 2005); Sajkowski v. Young Men's Christian Association of Greater New York, 269 AD2d 105, 702 NYS2d 66 (1st Dep't 2000); Napoli v. Mount Alvernia, Inc., 239 AD2d 325, 657 NYS2d 197 (2d Dep't 1997); Totino v. Nassau County Council of Boy Scouts of America, 213 AD2d 710, 625 NYS2d 51 (2d Dep't 1995). Thus, if and when a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, there can be no liability if he or she is injured as a result of those risks. Turcotte v. Fell, 68 NY2d 432, 502 NE2d 964, 510 NYS2d 49 (1986); Sands v. Bonnie View On Lake George, Inc., 230 AD2d 902, 646 NYS2d 855 (2d Dep't 1996).

It is not necessary that Plaintiff foresee the exact manner in which her injury would occur. Cook v. Komorowski, 300 AD2d 1040, 752 NYS2d 475 (4th Dep't), app. denied, 303 AD2d 1040, 755 NYS2d 691 (2003). Furthermore, it is not a plaintiff's own subjective view of the risks assumed by voluntarily participating in a sport, but rather the objective risks of the sport. Thus, "the risks assumed are those injury-causing events that are known, apparent or reasonably foreseeable consequences of participation", i.e. the inherent risks, for example, hitting a snow barrier while snow tubing. Tremblay v. West Experience Inc., 296 AD2d 780, 781, 745 NYS2d [*4]311, 312 (3rd Dept., 2002). See also, Capello v. Village of Suffern, 232 AD2d 599, 648 NYS2d 699 (2nd Dept.,1996); Swan v. Town of Grand Island, 234 AD2d 934, 652 NYS2d 166 (4th Dept.,1996).

Plaintiff Kathleen Berdecia had partaken in snow tubing at this very facility on a prior occasion. On her first visit, she successfully went down the hill, or completed two runs, without incident. On her second visit to this facility she successfully completed one run and was injured on her second run. It is quite important to note that on each of her three prior "successful" runs, Plaintiff admits she was pushed ^[FN4], without request, down the run. Nonetheless, she still voluntarily presented herself for that fourth run.

Based on these uncontested facts, the Plaintiff was aware of and appreciated the risks of this snow tube run, given her skill, background and experience [Egger v. St. Dominic High School, 238 AD2d 542, 542-543, 657 NYS2d 85, 86 (2nd Dept.,1997), leave to appeal denied by, Egger v. St. Dominic High School, 90 NY2d 809, 686 NE2d 1365, 664 NYS2d 270 (1997); Steward v. Town of Clarkstown, 224 AD2d 405, 638 NYS2d 125 (2nd Dept., 1996); Myers v. Friends of Shenendehowa Crew, Inc., 819 NYS2d 143, 145 (3rd Dept., 2006)]. "Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks". Painter v. Peek'n Peak Recreation, Inc., 2 AD3d 1289, 1289, 769 NYS2d 678, 679 (4th Dept., 2003), citing, Morgan v. State of New York, 90 NY2d 471, 484, 662 NYS2d 421, 685 NE2d 202(1997).

In the case at bar, based on Plaintiff's awareness of: the cold, icy conditions prevailing at the time of the accident; that she could not control her tube once it got moving; the fact that she had been pushed down the hill, without any request to be pushed, on each of her prior three runs; and the presence of a snow barrier obviously constructed for the purpose of preventing participants from traveling outside the lane of the run, this Court's concludes that the risk of impacting the snow barrier was a reasonably foreseeable consequence of Plaintiff's participation in the sport and that she was aware or should have been aware of the danger posed by the snow barrier.

Based on the foregoing, Defendant's request to dismiss Ralph Berdecia derivative claim must also be granted. [*5]

On account of the foregoing, Defendant's motion for summary judgment is GRANTED.

The foregoing constitutes the Decision and Order of this Court.

E N T E R

_________________________________HON. LAWRENCE I. HOROWITZ

SUPREME COURT JUSTICE

Dated: October 27, 2006

Goshen, New York