Mintzer v West Mtn.

Supreme Court, Saratoga County

Decided on June 30, 2026

Index No. EF2024542

Richard A. Kupferman, J.

On March 1, 2023, the plaintiff sustained injuries while skiing at West Mountain. The plaintiff was an experienced skier. Prior to the incident, he was skiing down the mountain on an intermediate (blue square) trail called "Mach." He alleges that he skied past a rock outcropping and down the left side of Mach. He then proceeded to turn right to take another trail called "Go Go" to return to the base of the mountain. The plaintiff alleges that he experienced a "drop off" prior to reaching Go Go, causing him to become "airborne." Following the incident, the plaintiff provided a signed statement (contained in the defendants' incident report), in which he asserted that there was "flat light" and that he "did not see [the] drop off" (NYSCEF, Document No. 79).

In his complaint, the plaintiff alleges that the ski facility negligently maintained the intermediate trail and failed to warn of a concealed "drop-off" of approximately 4 to 6 feet in height. The plaintiff also alleges that the defendants' employees provided inadequate and negligent first aid. Following the completion of discovery, the defendants now seek summary [*2]judgment dismissing the complaint.

The "Drop Off"

The general legal rules applicable to this case are well settled. "A person who participates in downhill skiing assumes the usual risks inherent in that activity (i.e., those that are known, apparent or reasonably foreseeable)" and "a ski area operator [will therefore be] relieved from liability for risks inherent in the sport of downhill skiing when the participant is aware of, appreciates and voluntarily assumes those risks" (DeMulder v Hunter Mtn. Ski Bowl, Inc., 233 AD3d 1147, 1147 [3d Dept 2024] [internal quotation marks and citations omitted]). A skier's awareness of the risks "must be assessed against the background of [his or her] skill and experience" (id. at 1148). While knowledge plays a role, inherency is the sine qua non and, to this end, the State Legislature has enacted the Safety in Skiing Code and determined that downhill skiing contains numerous inherent risks which may result in serious personal injury, including from, among other things, "variations in terrain [and] weather conditions" (id., quoting General Obligations Law § 18-101).

In support of the motion, the defendants have provided the deposition testimony from the two ski patrollers who assisted the plaintiff after he fell (along with an affirmation from one of them). They testified that the alleged "drop off" was readily observable. One of them (Zachary) testified that it was only about a foot and a half. The other one (Nathan) testified that the "drop off" was probably two or three feet high and that he snowboarded right over it on his way to the plaintiff. The ski patrollers further explained that the "drop off" was essentially the change in terrain the plaintiff encountered as he proceeded to ski off the groomed portion of the Mach trail and into an ungroomed, off trail area, in between Mach and Go Go. One of the ski patrollers (Nathan) further testified that he marked the area generally with bamboo to alert skiers about the change in terrain, spreading the bamboo to avoid interfering with skiing. This area, which one of the ski patrollers (Nathan) referred to as a "no man's land," is depicted in a diagram prepared by this ski patroller in November 2023, several months after the incident, which has also been submitted in support of the motion.

Further, the testimony of the ski patrollers indicates that they did not consider this area or the change in elevation to be a hazardous area or the result of a grooming mistake, as the plaintiff alleges. Rather, they explained that the area was intentionally left ungroomed for skiers to enjoy the natural terrain. In fact, one of the ski patrollers (Nathan) asserts in his affirmation that the trails were left that day in the same condition after the plaintiff fell, and no other injuries occurred in that location that day. The defendants further contend that the plaintiff and his skiing companions have grossly exaggerated the condition of the area where the plaintiff fell. They have submitted photographs of the area, which were taken by the plaintiff's skiing companion (William).

The defendants also rely on the deposition testimony from the plaintiff, his skiing companions, and the ski patrollers regarding the location of the "drop off." This testimony places the "drop off" and "cliff" referenced in the complaint (and by the plaintiff and his skiing companions) in the area depicted on the right-hand side of the photographs, where the snow appears ungroomed and choppy. Based on this deposition testimony and the other evidence presented, the "drop off" was not the large snow-covered mound or cliff-like looking object depicted on the left-hand side of the photographs (below the tower), where vegetation is present.

In addition, the defendants dispute that the "drop off" was concealed. They rely on the [*3]deposition testimony of their ski patrollers, who testified that they had no problem seeing the change in terrain and that the change in terrain from groomed to ungroomed snow was visible. The defendants further contend that even if the plaintiff did not see the "drop off," this was caused by the weather (overcast), which caused "flat light," rather than any negligence on their part. They contend that this weather condition (rather than anything they did) made it more difficult for the plaintiff to see changes in the terrain and ultimately resulted in him becoming "airborne." In fact, the plaintiff signed a statement admitting this in the incident report. Moreover, the defendants contend that the plaintiff knew about the weather and the risks of skiing with flat light prior to the incident, and that he proceeded to assume those risks on the day of the incident. Moreover, the defendants have provided additional evidence that other factors may have also hindered the plaintiff's ability to see the change in the terrain, unrelated to any skiing conditions, including the plaintiff's age at the time of the incident (67 years old) and his eyesight.^FN1

The defendants have further provided a rather detailed and lengthy affidavit from a safety expert, who reviewed various litigation materials (including deposition transcripts) and inspected the area where the plaintiff was injured. The defendants' expert concludes that the plaintiff's fall was "caused by his failure to successfully navigate (ski over) a 'variation in terrain' and his own failure to maintain a proper lookout while skiing" (NYSCEF, Document No. 83, at par. 12). He further opines that the ski facility was "reasonable in all aspects of their operations" and "did not expose the Plaintiff to unusual, unnecessary and/or unreasonable risks, hazards or dangers or do anything to increase the risk to the Plaintiff" (NYSCEF Document No. 83, at par. 58).

Based on the evidence presented in support of the motion, the defendants have met their initial burden on the motion of demonstrating, prima facie, that the doctrine of primary assumption of the risk bars the plaintiff's claim (see id. at 1147; Ruepp v West Experience, Inc., 272 AD2d 673 [3d Dept 2000]; Schorpp v Oak Mtn., LLC, 143 AD3d 1136 [3d Dept 2016]; Giordano v Shanty Hollow Corp., 209 AD2d 760 [3d Dept 1994]; Calabro v Plattekill Mt. Ski Ctr., 197 AD2d 558 [2d Dept 1993]; see also Festa v Apex Capital, LLC, 171 AD3d 1016 [2d Dept 2019]). "Therefore, the burden shifted to [the plaintiff] to demonstrate facts from which it could be concluded that defendants concealed or unreasonably enhanced the danger, or created conditions which were unique or above those inherent in the activity" (DeMulder, 233 AD3d at 1148 [internal quotation marks, brackets, and citation omitted]).

In opposition, the plaintiff asserts that he was skiing at a moderate pace and under control at the time. He did not see any bamboo or other markings to alert him about the change in the elevation or warn him about the "drop off." He asserts that the "drop off" was in the middle of the trail; that it was sudden; and that it was approximately four to six feet high. He further asserts that the "drop off" was not visible to him due to "the slope of the mountain, the flat light [*4]and the way the trail had been groomed." He further asserts that he had received treatment for his eye condition and that his eye condition did not affect his vision while skiing. He further contends that he "was wearing goggles with lenses to reduce glare and enhance [his] ability to visualize the ski slope ahead" (although he fails to disclose specific details about the lenses themselves such as their color and material) (Plaintiff's Affirmation [2-13-26], at paragraph 30).

The plaintiff further asserts that the areas before and after the "drop off" were groomed, and that the "drop off" was caused by the accumulation of man-made snow, natural snow, and prior grooming. He further asserts that he had skied West Mountain approximately a dozen times prior to the incident (the last time in or around 2020 or 2021) and that he never saw or encountered this "drop-off" on his prior visits (although his skiing companion Bruce has conceded that there was a "knoll" in that same area while skiing there with the plaintiff in the past).

The plaintiff has further submitted affirmations from his two skiing companions (long-time friends) who were with him on the day of the incident. They too assert that there was no bamboo or other markers to alert skiers about the "drop off." They further agree that the "drop off" was unusual for an intermediate trail and that it was the result of accumulated man-made snow, natural snow, and prior grooming. One of the companions (Bruce) describes the "drop off" as being "a 90-degree angle drop-off" that was approximately six feet high. The other companion (William) describes the "drop off" as being five to six feet high.

The plaintiff further asserts that he told the responding ski patrollers that this was a dangerous drop-off that should have had a warning. The plaintiff asserts that the ski patrollers agreed with him that the "drop off" required a warning to enable skiers to avoid it. Specifically, the plaintiff asserts that one of the ski patrollers said "[i]t looks like a grooming mistake" and that the other one said "[a]t the very least it should have been marked." One of the plaintiff's skiing companions (Bruce) further asserts that he heard one of the ski patrollers say "I can't believe this has not been roped off. This should've been roped off."

The plaintiff has also submitted an affirmation from his own ski safety consultant. Based largely on the descriptions of the "drop off" from the plaintiff and his skiing companions, the plaintiff's expert concludes that the "drop off" was "an extremely hazardous condition that was not marked with the necessary warning devices to warn an intermediate level skier of its existence" (NYSCEF Document No. 90, at par. 18). The plaintiff's expert further opines that the "drop off" was "the type of hazard ski patrol members should have noted while inspecting the trail each day" and that it "should have been marked with devices to warn an approaching skier" (NYSCEF Document No. 90, at par. 19). The plaintiff's expert further opines that he has never encountered such a similar, unmarked drop-off on any of the intermediate trails that he has skied.

Based upon the Court's review of the opposition papers, the Court finds that some of the alleged disputed issues raised by the plaintiff are not genuine. In particular, the photographs do not support the plaintiff's characterization of the "drop off" as a "cliff." The Court finds this characterization misleading and completely contradicted by the photographs (even when they are viewed in the light most favorable to the plaintiff, as the non-moving party). The photographs also do not support the plaintiff's position that he encountered a 90-degree vertical drop measuring six feet in height, as alleged in the affirmation from the plaintiff's skiing companion (Bruce). It is also not entirely clear what angles and end points the plaintiff, and his other companion (William), have used to determine the height of the drop off.

The plaintiff has also not provided any proof regarding the grooming performed to [*5]support his position that the "drop off" was caused by a grooming mistake. At best, the plaintiff simply alleges that one of the ski patrollers admitted to him that the condition looked like a grooming mistake (whatever that means). In fact, not even the plaintiff's own expert has been able to clearly explain the basis for concluding that the "drop off" was caused by a grooming mistake. As far as the Court can ascertain, the plaintiff's position (and that of his expert) appears to be that the groomer either missed a spot when it last groomed the area (which the plaintiff's proof does not adequately address), or that a mystery groomer may have somehow removed a large amount of snow from this ungroomed area (which is highly speculative and unsupported by the record).

The Court also questions the conclusion of the plaintiff's expert that only expert skiers could have negotiated this particular "drop off." The photographs of the "drop off" undermine this statement and, in any event, there is no evidence that the plaintiff (who skied for decades) could not have negotiated this "drop off" if he had seen it. Nor does the Court agree with the expert's conclusion that the "drop off" was a "man-made obstruction" as that term is used in General Obligations Law § 18-103(4).

Under General Obligations Law § 18-103(4), ski area operators are required to "conspicuously mark the location of such man-made obstructions as, but not limited to, snow-making equipment, electrical outlets, timing equipment, stanchions, pipes, or storage areas that are within the borders of the designated slope or trail, when the top of such obstruction is less than six feet above snow level." In this Court's view, this provision does not apply because the plaintiff is alleging that his injuries were caused by skiing off a "cliff" rather than by skiing into an obstruction. Moreover, this "drop off" does not fall within the meaning of a "man-made obstruction" because it is completely different than any of the obstructions specifically mentioned in the statute (e.g., snow-making equipment) and was not located "above snow level" as required by the plain terms of the statute.^FN2

That said, the plaintiff's opposition raises genuine factual disputes, including (1) whether the area near the "drop off" was marked, as alleged by the defendants; (2) whether the "drop off" was located on the Mach trail, in a "no man's land," or in a cross over regularly used by intermediate skiers; (3) whether the "drop off" was one foot, six feet, or some other height; (4) whether the "drop off" was visible; and (5) whether the ski patrollers admitted that the area constituted a hazard. These factual disputes, including the dispute over the height of the "drop off," its location, and whether it was marked, preclude this Court from determining, as a matter of law, that the doctrine of primary assumption of the risk bars the claim. Among other things, the photographs depict the area as choppy and ungroomed. The plaintiff, his companions, and his expert have all opined that these conditions were extremely unusual for an intermediate trial. In addition, while the defendants rightfully assert that the photographs do not depict a 90-degree drop off spanning six feet down, the plaintiff and his other companion have not described the "drop off" as a 90-degree vertical drop (although they have characterized it as a "cliff"), nor do [*6]the opinions of the plaintiff's expert appear to be dependent on this allegation about a 90-degree vertical drop. Rather, the plaintiff has asserted that the "drop off" was "sudden," "unmarked," and between four to six feet, and the plaintiff's expert has relied on the plaintiff's description to conclude that this unmarked "drop off," whether four feet or six feet, created a safety hazard.

Given that one of the defendants' ski patrollers estimated the height as up to three feet and the photographs make it difficult to estimate the exact height of the "drop off," the Court finds that the "drop off" could have been four feet, as alleged by the plaintiff. Moreover, the defendants' expert has not rendered an opinion about whether or not he would characterize the "drop off" as a hazard if it had been at least four feet in height, unmarked, and located on the Mach trail (or on a crossover regularly used by intermediate skiers), as alleged by the plaintiff. Rather, the defendants' expert does not specifically address the height of the "drop off," and his opinion further relies on facts in dispute, specifically the testimony of the ski patrollers that the "drop off" was visible and located off the Mach trail in a "no man's land."

Accordingly, the Court finds that triable issues of fact exist on the application of the doctrine of primary assumption of risk and whether it bars the plaintiff's claim (see e.g. Sharrow v NY State Olympic Reg'l Dev. Auth., 307 AD2d 605 [3d Dept 2003]; Sytner v State, 223 AD2d 140 [3d Dept 1996];Paulus v Holimont, Inc., 100 F Supp 3d 292 [WDNY 2015]; Younger v Hunter Mountain Ski Bowl, 1994 US Dist LEXIS 14719, 1994 WL 568527 [NDNY 1994]).

First Aid

The plaintiff also alleges that the defendants provided inadequate and negligent first aid. In support of their summary judgment motion, the defendants have provided deposition testimony and an affirmation which refutes this claim. In particular, the defendants' employees have explained that they were experienced and trained in providing first aid. They have further described the first aid that they provided to the plaintiff and explained that it complied with their training and the standard of care.

In opposition, the plaintiff has failed to present any competent proof to find that the employees provided inadequate or negligent first aid. Rather, the plaintiff improperly speculates that inadequate first aid was provided because he experienced pain when the employees removed his ski boot. In addition, the plaintiff's expert opines that the removal of the boot "deprived [the plaintiff] of the boot that would be useful as a splint to keep his ankle safe from further injury" while ignoring the fact that the defendants' employee made the plaintiff a splint and that EMS soon thereafter transported him to the hospital. The plaintiff's expert also neglects to explain how this man-made splint was inadequate under first aid standards.

The plaintiff's expert further mischaracterizes the prior deposition testimony of the plaintiff and the defendant's employee about the removal of the boot. Specifically, the plaintiff's expert asserts that the plaintiff and the employee (Joseph) previously testified that the plaintiff's boot was "pulled off." This term "pulled off" was not used in their prior deposition testimony, and it does not appear in the complaint or the bill of particulars. In any event, even assuming the boot was "pulled off" (as the plaintiff now alleges in his affirmation), there is no evidence that the boot was forcefully yanked off in some negligent manner, as the plaintiff and his expert seem to assume based on the plaintiff's use of this term "pulled off."

The plaintiff's expert also fails to provide any basis for his conclusory opinion that the removal of the boot "was not in keeping with generally accepted first aid procedures at ski areas" (NYSCEF Document No. 90, at par. 22). It is unclear whether the plaintiff's expert is alleging that the ski boot should not have been removed at all (which would have prevented an [*7]assessment of the injury); whether the ski boot was taken off too forcefully (which is not supported by the record); or whether a different method should have been used to remove the boot (whatever that may be). In any event, the alleged accepted standards of care have not been explained, nor has the plaintiff's expert properly explained how the first aid provided deviated from accepted standards.

In addition, the plaintiff's expert provides no opinion or evidentiary basis to support the plaintiff's position that the removal of his boot injured his ankle. While the expert does opine in a conclusory manner that the removal of the boot (and/or alleged use of a man-made splint) "may have caused additional injury to the broken ankle by the force necessary to pull the ski boot off" (NYSCEF Document No. 90, at par. 22 [emphasis added]), this opinion is riddled with unsupported assumptions and, in any event, falls far short of causally connecting the removal of the boot with the alleged "additional injury" to the ankle (whatever that may be) with the requisite degree of medical certainty required to establish such. The plaintiff's expert also lacks the medical qualifications to render any such opinion.

Accordingly, the Court dismisses the negligence claim based on the provision of first aid.

It is therefore,

ORDERED that the defendants' motion (Motion No. 3) is DENIED as to the negligence claim based on the alleged skiing hazard (i.e., concealed drop off) and GRANTED as to the negligence claim based on the provision of first aid; and it is further

ORDERED, that the plaintiff (through counsel) is directed to provide the defendants' counsel, by July 15, 2026, with any and all medical records in his possession (or the possession of his counsel), which have not already been provided, relating to the condition of the plaintiff's eyesight and/or eye disability, along with any additional medical authorizations necessary to obtain such records (including any updated authorizations, if necessary); and it is further

ORDERED, that the parties are required to exchange their expert disclosures (including any expert disclosures regarding ski safety, photograph interpretation, and eye conditions) by September 30, 2026, with any responsive disclosures by October 30, 2026; and it is further

ORDERED, that that a court settlement conference will be held on October 6, 2026, at 2:00 p.m., IN PERSON at the courthouse, with the plaintiff present and the defendants' adjuster available by telephone. Prior to the conference, by September 30, 2026, the parties' counsel should provide the Court with a position statement and copies of their expert disclosures, if any. Counsel should also be prepared to select trial dates if the parties are unable to resolve this matter.

This shall constitute the Decision & Order of the Court. No costs are awarded. The Court is uploading the original into NYSCEF for filing and entry. The Court directs the parties to serve notice of entry in accordance with the Local Protocols for Electronic Filing for Saratoga County.

So-Ordered.

Dated: June 30, 2026

at Ballston Spa, New York

HON. RICHARD A. KUPFERMAN

Justice Supreme Court

Enter.

Papers Considered:

NYSCEF Document Nos. 64-95