The defendant, Herricks Union Free School District, (hereinafter referred to as "Herricks"), moves for an order pursuant to CPLR §3212 for summary judgment and dismissal of plaintiffs' complaint. Herricks submits a Memorandum of Law in support of the motion. The plaintiffs submit opposition. The defendant submits a reply affirmation.

The plaintiff, Alison Monti, initiated this action for personal injuries sustained on February 27, 2004, during a school field trip to Hunter Ski Mountain in Hunter, New York. The plaintiff, a high school senior, fell while skiing down the beginner trail, Mossy Brook, marked on the Hunter trial map with a green circle as an "easier" trail. The plaintiffs claim that the defendant, Herricks, did not adequately supervise the plaintiff, Alison Monti, while she was skiing at the time that she fell. The plaintiffs have discontinued this action as and against the Hunter Mountain defendants. [*2]

It is well-settled that "by engaging in a sport or 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). The doctrine of assumption of the risk is a form of measurement of a defendant's duty to a voluntary participant. (Lapinski v. Hunter Mountain Ski Bowl, Inc., 306 AD2d 320). The voluntary participant is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport. (Id.) Where the risks of a sporting activity are fully comprehended and obvious, plaintiff has consented to them and the defendant has performed its duty. (Bailey v. Town of Oyster Bay, 227 AD2d 427). It has been held that the assumption of risk doctrine applies to skiing. (Pitkewicz v. Boy Scouts of America, 261 AD2d 462; Bruno v. Hunter Mountain Ski Bowl, Inc., 248 AD2d 660; Osorio v. Deer Run Associates, 231 AD2d 504).

The Court of Appeals has stated that important legal distinctions are drawn between compulsory physical educational courses and voluntary participation in interscholastic athletic activity, as well as between professional and amateur status. (Benitez v. New York City Board of Education, 73 NY2d 650). "Players who voluntarily join in extracurricular interscholastic sports assume the risks to which their roles expose them but not risks which are unreasonably increased or concealed". (Id.) The Board of Education, its employees, agents and organized athletic councils must exercise "ordinary reasonable care" to protect student athletes voluntarily involved in extra curricular sports from unassumed, concealed or unreasonably increased risks. (Id.)

The theory of inherent compulsion provides that the defense of assumption of the risk is not a shield from liability, even when the injured party acted despite open and evident risks, when the element of voluntariness is overcome by the compulsion of a superior. (Id.) The two factors generally present to invoke the compulsory theory are "a direction by a superior to do the act" and "an economic compulsion or other circumstance which equally impels" compliance with the direction. (Id.)

The plaintiffs submit that the ski trip was a compulsory sports activity, and therefore, the standard of care is not the "exercise of reasonable care," but rather, the standard of care of a parent, citing Hoose v. S.S. Drum, 281 NY 54. However, upon the record herein, the following matters are undisputed. The Outdoor Education Class was an elective half year course that ran from September, 2003, through December, 2003. The plaintiff testified that she was not required to take the Outdoor Education Class. Plaintiff's class was scheduled to go on a ski trip in January, 2004. The trip was canceled. The plaintiff was invited to go on the trip in February with another class. Attendance at the February trip was voluntary. The plaintiff's course had already ended and plaintiff had already received her grade for the class. There was no penalty for the plaintiff if she did not attend. Plaintiff opted to go on the February trip with her mother's permission.

While the school ski trip was organized as part of plaintiff's Outdoor Education Course, the course was elective, and under the circumstances herein, plaintiff's participation in the February ski trip was voluntary. The general factors that invoke the doctrine of inherent compulsion, to wit, a direction by a superior to do the act and an economic compulsion, are not present. [*3]

Therefore, the applicable standard of care is whether Herricks exercised ordinary and reasonable care. The standard of care applicable to organizers of sporting or recreational events is to "exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed, or unreasonably increased risks." (Vecchione v. Middle Country Central School, 300 AD2d 471, citing Benitez v. New York Board of Education, 73 NY2d 650).

Notwithstanding the fact that plaintiff voluntary participated in the ski trip, and admitted that she was aware of the risks associated with the sport of skiing, the defendant, Herricks, has demonstrated that the defendant exercised ordinary and reasonable care in that the defendant provided adequate and competent supervision for the ski trip. Four adults with ski experience were present on the trip. The plaintiff took a required ski lesson and admitted that she caught on to what she was being taught during the lesson. The plaintiff had successfully negotiated the ski lesson, in which she skied down several trails with the instructor, and later skied down several trails with her friends before the fall.

Plaintiffs' counsel argues that since plaintiff was a beginner skier, in the exercise of reasonable care, the defendant, in order to protect plaintiff from the risk of injury associated with the sport of skiing, should have mandated that chaperones be stationed along the beginner trail that plaintiff was skiing down to guide plaintiff while she was skiing, by providing on-site practical suggestions and guidelines while the plaintiff navigated the trails. Plaintiffs' counsel suggests that had a chaperone with skis on been present on the beginner trail, where a majority of Herricks students were skiing, perhaps plaintiff would have received some pointers and tips while she was skiing, so that the sudden and unexpected loss of control never would have taken place.

The plaintiff's aforesaid argument is unavailing. Plaintiffs' counsels' suggestion that stationed chaperones could have prevented the plaintiff from falling while plaintiff was skiing down the beginner trail is speculative at best. A showing of some negligent act or inaction referenced to the applicable duty of care owed to plaintiff by the defendant, which may be said to constitute a "substantial cause" of the events which produced the injury is necessary. (Morgan v. State of New York, 90 NY2d 471; Cissone v. Bedford Central School District, 21 AD3d 437).

In light of the foregoing, the defendant's motion for summary judgment is granted, and therefore, the plaintiff's action, as and against Herricks, is dismissed.

E N T E R :

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J.S.C.

Dated: February 16, 2007 [*4]

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