In Sopkovich v. Smith, Plaintiff commenced this action seeking damages for injuries sustained when he and defendant, a snowboarder, collided on a ski trail. Defendant moved for summary judgment under the theory of assumption of the risk and that defendant did not engage in any “reckless, intentional, or other risk-enhancing conduct not inherent in the activity.” The lower court dismissed this case and the plaintiff appealed.
The Appellate Division, Fourth Department reviewed the facts and ruled the lower court erred in its granting of summary judgment. Although there is an inherent danger in skiing and snowboarding, the other prong of the test was that the defendant was not reckless or engaged in conduct not inherent in the activity. Both plaintiff and defendant were veteran skiers/snowboarders.
Plaintiff testified that he was “slow[ly]” skiing down a beginner trail when defendant merged onto that trail from an intermediate trail and impacted plaintiff from the left.” By contrast, defendant, an “advanced” snowboarder who was familiar with the trails, testified that he had already safely merged onto the beginner trail at an “average” or “normal” speed, was further down the beginner trail than plaintiff and was “very close to a complete stop” at the time of the collision, having observed plaintiff “going fast” “down the hill in a straight line.”
Plaintiff submitted an affidavit from an emergency room physician who was also an 11–year veteran of the National Ski Patrol. Based on his review of the depositions and other records related to the case, the expert opined that, given the nature and extent of plaintiff’s injuries, “there [was] no question [that] the force with which [defendant] impacted [plaintiff’s] left side and back was immense” and that plaintiff’s injuries were “not consistent with [defendant’s] deposition testimony” that he had come to or nearly come to a complete stop. The expert thus concluded that defendant had “unreasonably increased the risk of harm” to plaintiff.
The Appellate Division concluded that plaintiffs raised triable issues of fact whether defendant engaged in reckless conduct. As the record established that the collision was exceedingly violent there is “at least a question of fact … whether … defendant’s speed in the vicinity and overall conduct was reckless.” As such, the expert testimony contradicted the defendant, thus creating a question of fact. A fine maneuver by the plaintiff and a reminder that summary judgment will rarely be upheld if there is credible expert testimony sufficient to take the case before a jury.
Thanks to Paul Vitale for his contribution to this post.