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Nicolas Festa, Etc. v. Apex Capital (2d Dep’t)

May 3, 2019 • Posted By • Risk Managment

          In Festa v. Apex Capital, LLC (2d Dep’t April 17, 2019), the infant plaintiff in the underlying action was snowboarding at a ski area owned and operated by the defendant when he noticed a “snow whale,” a mound of artificial snow on the trail, used to create piles for snowboarders to use to jump off.  The infant plaintiff, a self-proclaimed experienced snowboarder, decided to use the “snow whale” to “go up and try to get air,” but when he went over the top of the “snow whale,” he fell into a five-foot crevasse on the other side, causing alleged personal injuries. 

            In the underlying action, the defendant moved for summary judgment, arguing that plaintiff “assumed the risk” by virtue of his actions on the day in question.   The motion for summary judgment was denied, and defendant appealed to the Second Department.

            On appeal, and in reliance on long-standing precedent regarding “assumption of the risk” as pertaining to sports and recreational activities, the Second Department reversed the trial court order denying summary judgment.  Plaintiff testified during his deposition that he was aware he could fall and injure himself during these snowboarding acts, and defendant presented testimony that placement of artificial snow via “piles” or “mounds” was and is an inherent part of snowboarding in the United States.  In finding that the defendant “did not do anything that unreasonably increased the risk [to plaintiff],” the appellate court found that defendant made a prima facie showing of entitlement to judgment by demonstrating that the infant plaintiff (who had snowboarded down trails at the subject premises three days in a row and several times on the day in question) assumed the risk of injury by falling into the crevasse.  Further, plaintiff did not raise a triable issue of fact in the underlying action, as the crevasse was not created by (or known to) defendant or caused by anything other than a natural occurrence of weather and terrain.   Accordingly, Judge Alan D. Scheinkman held that summary judgment should have been entered in favor of the defendant.

           By virtue of this decision, the Second Department provided additional clarity as to a property owner’s obligations to maintain a safe environment for its invitees and other individuals who participate in sports activities on their premises.  Provided the owner does not “unreasonably increase the risk” of injury, plaintiffs may have a hard time pursuing actions for premises liability unless a concealed, “open and obvious” hazard is present.