Brian Correll, Claimant, v. AND NEW YORK STATE OLYMPIC REGIONAL DEVELOPMENT AUTHORITY (2026)

In this negligence action, claimant Brian Correll seeks damages for injuries he suffered when he fell from the Topridge Triple chairlift (hereinafter the "Topridge" lift) at Gore Mountain Ski Resort, a venue owned and operated by the State of New York and the New York State Olympic Regional Development Authority (ORDA).¹ The claim alleges that when claimant attempted to sit on the chairlift, he fell into the chair's frame because the seat was missing and then fell from the chair while trying to dislodge himself as it gained altitude. Claimant asserts, among other things, that defendant's employees negligently operated the lift by failing to ensure that the seat was properly in place. After considering the testimonial and documentary evidence received, the parties' arguments at trial and in their post-trial submissions,² as well as the applicable law, the Court concludes that defendant is liable to claimant, but finds that claimant also bears some responsibility for the accident.

Trial Evidence

The material facts of this claim are largely undisputed, and the Court finds that all the witnesses who testified at trial were generally credible. Claimant, and three other witnesses were called to testify: Sandrine Gosselin, claimant's friend and fellow skier who witnessed the accident; Michael McClure, the ski patrol director at Gore Mountain; and Justin Campbell, a Gore Mountain employee who was working as a lift attendant at the time of the accident. In addition, upon stipulation of the parties, the Court received claimant's Exhibits 1 through 4 and defendant's Exhibit A into evidence. Exhibits 2 and 3 are video clips depicting the operation of the chairlift and the surrounding area; they do not contain any footage from the date of the accident.

The accident occurred on March 20, 2023. Claimant was 68 years old at that time. Claimant testified that, by the time of trial, he had been skiing for about 10 or 11 years, and he took up skiing more seriously about 1 or 2 years before the accident. By March of 2023, claimant was skiing "a few times per week" with a group of friends which included Gosselin (Trial Transcript [T.] 19). Claimant described himself as an "accomplished" (id.) and "intermediate" skier (T.38); however, he noted he was not as skilled as Gosselin and others in his group. He stated that he generally skied intermediate slopes and could ski single black diamond expert slopes, but not double black diamonds. Claimant was familiar with Gore Mountain at the time of the accident and had skied there intermittently for "a few years" before the accident (T.23). Indeed, he acknowledged that he had skied at Gore Mountain more than once in the two weeks before the accident (see also Exh 1). He also stated that he had used the Topridge lift on previous trips to Gore Mountain but had never had any problems using it.

Claimant traveled to Gore Mountain with Gosselin in the late morning on the day of the accident. The weather conditions were sunny and beautiful, and claimant did not recall any significant wind. After putting on his ski gear—which included a helmet, goggles, and skull cap—claimant rode a gondola up the mountain to begin skiing. Claimant and Gosselin completed a few runs down the mountain before ultimately heading to the Topridge lift in the early afternoon. Claimant stated there was not much of a line, if any, at the lift. The accident occurred during claimant's first attempt to use the Topridge lift that day.

Assisted by one of the video exhibits (see Exh 2), claimant explained the process for loading onto the Topridge lift, stating that the video accurately depicts the layout of the lift as it was on the date of the incident. First, skiers stand in line behind an orange marker labeled "wait here." When it is a skier's turn to get on the lift, an attendant directs that individual to ski forward and stop at a second orange marker labeled "load here." Claimant testified that it is important for skiers to pay attention when skiing to the second marker so that they do not go down the ramp and past the loading zone. Once the skier reaches the "load here" marker, the skier must wait to receive the chair. The chairs are about six feet wide and can snugly fit up to three skiers. Each chair comes down the mountain on the right side of the lift and, when a chair reaches the loading area, it swings around on a wheel device (called the "bull wheel") and goes behind the skiers waiting to load. According to claimant, an attendant then slows down the chair and "tucks" it against the back of the skier's legs, which signals that it is time to sit down (T.25). Claimant testified that the chair can really hit the back of a skier's legs hard, depending on whether the attendant slows it down enough. Once the skier is seated, a metal bar attached to the chair is lifted over the skier's head and rested in front of the skier for security. The chair then begins to rise and travels away from the loading area and up the left side of the lift.

On the day of the incident, claimant testified that when he and Gosselin reached the lift, there were two attendants present—one in or near the small building adjacent to the lift, and the other standing in front of them "up near the line where you would ultimately get [into] the chair" (T.32). Claimant stated that the second attendant was in the same or similar position as the attendant shown in the video. Claimant and Gosselin skied forward to the "load here" marker. Gosselin was to claimant's right, but he "wasn't paying much attention to her" (T.26). Claimant explained that he was focused on stopping in the correct place and preparing himself to get onto a chair because they come around quickly. Once claimant stopped at the loading area and got situated, he felt he was in a "good position to receive the chair" (id.). He intended to sit all the way to the left side of the chair, while Gosselin would sit to the right. Claimant explained that he typically would "steady" the chair by grabbing the metal bar on the left side of the chair with his left hand before he sat down (T.27). Thus, when claimant stopped at loading area, he was already thinking about grabbing the bar. When the chair arrived, claimant grabbed the bar, felt the attendant slow down the chair and "tuck[ ] it against" his legs, and then sat back (id.). He did not hear either the attendant or Gosselin say anything before he sat down.

Claimant did not know what happened but felt as though the chair had collapsed. His body became wedged in the chair's frame and his "skis were up in the air" (T.27). As the chair began to rise, claimant decided that he needed to get out before the chair gained too much height because he knew that it would pass over a large crevasse shortly after leaving the loading area. Claimant pulled himself up onto the outside edge of the frame and prepared to jump. Before he could do so, an attendant stopped the lift and claimant was thrown from the chair and rolled down a ramp that was past the loading area. Claimant did not know exactly how high off the ground he was when he fell, but estimated it was four to ten feet.

After claimant removed his skis and returned to the top of the lift ramp, the attendant told claimant that "the seat was up" on claimant's chair (T.29). Claimant testified that he did not know that the seat was missing before he sat down. He believed the seats were "fixed" into a down position and he did not know they could be flipped up (id.).Claimant testified that he had never "contemplated the possibility" that a chair could come down the mountain with the seat up (T.23). According to claimant, there were no warning signs alerting skiers to the possibility that a chair could arrive without the seat in the proper position.

On examination by defendant, claimant acknowledged that skiing involves a risk of injury and that it is important for skiers to pay attention to their surroundings. He also testified that he did not look behind him before sitting down in the chair. Claimant explained that he was looking at the bar on the far left side of the chair rather than down toward the seat. He stated that he was "looking backwards for the chair, but not at the chair" (T.42). Claimant further testified that he did not look at the chairs that were coming down the mountain on the right side of the lift while he was waiting to load.

Gosselin testified that she became friends with claimant about three years before the accident and that their relationship was platonic. Gosselin was a highly experienced skier. According to Gosselin, claimant was "not an expert" skier but "could keep up with expert[s]" (T.50). At the time of trial, Gosselin had been skiing at Gore Mountain for 20 years. She had a season pass to Gore Mountain and estimated that she visited it 30 or 40 times in a season. Like claimant, Gosselin had used the Topridge lift on other occasions before the day of the accident.

With respect to the incident, Gosselin testified consistent with claimant's testimony that she was on the right and claimant was to her left while the two of them waited in the loading area. As their chair approached, Gosselin "turned around and . . . saw that the chair had no seat" because "[t]he seat was up" (T.52). Gosselin first noticed the seat was missing just before the chair turned around the bull wheel to go behind her and claimant. She explained that she had a "quick . . . reflex" to move to the right and get out of the way of the chair (T.58). Gosselin then started "screaming" to the attendant that "[t]here's no seat, there's no seat" (T.52). At the same time, skiers who were behind Gosselin and claimant also began to yell, "be careful, be careful, the chair is going to hit you" (id.). But according to Gosselin, claimant did not hear any of this commotion and so attempted to sit in the empty frame.

Gosselin testified that the lift attendant who was there assisting skiers into the chairs "just stood there" and "didn't do anything," even though Gosselin was screaming that the seat was missing (T.52). She explained that the attendant was standing near the area where skiers load onto the lift, by a control box, in a position similar to that of the attendant depicted in the video played at trial. Finally, another attendant came out from the nearby booth and pushed a button on the box which abruptly caused the lift to stop. At that point, Gosselin saw claimant fall forward and roll to the side. Gosselin estimated that claimant fell 4 to 6 feet from the frame of the chair to the ground, noting that the distance was likely not as much as 10 feet. Like claimant, Gosselin testified that there were no signs posted around the lift to warn about the possibility of a missing seat.

McClure, the Gore Mountain ski patrol director since October 2017, has worked at Gore Mountain since 1996. His duties as ski patrol director include risk management, incident investigations, and ensuring the safety of patrons using the lifts and the slopes. However, he testified that Gore Mountain has a separate lift maintenance department of which he was not a member. As part of his job, McClure rides the Topridge lift about five or six times per week, and testified that the video played at trial accurately depicted the lift and surrounding area exactly as it was in 2023.

McClure testified that, at the time of the accident, the seats on the Topridge lift had a hinge toward the back of the frame which allowed them to flip up. This function allowed the seats to be placed upright after the close of business if a storm was forecasted so that they would not collect snow overnight. McClure agreed it was the job of Gore Mountain staff to make sure that all the seats were placed down before the mountain opened to the public, and this is something he expected staff to do in the morning after cleaning the seats. In addition, McClure testified that the seats could be flipped up during the day by a gust of wind, which happened "from time to time" (T.65). Like the other witnesses, McClure testified there were no warning signs to alert skiers of the possibility that could happen. McClure stated that it would be dangerous if a skier attempted to sit in a chair with no seat because there is a risk the skier could fall or get stuck in the frame of the chair. McClure further acknowledged that the chairs on the Topridge lift pass over a "huge crevasse" as they ascend the mountain, about 10 seconds after departing the loading area (T.68). This crevasse could also be seen on the video played at trial. McClure testified that the distance from the seat of a lift chair to the bottom of the crevasse was about 70 to 72 feet.

McClure testified that the seats were not equipped with a locking mechanism that would keep them in a down position during the day. Thus, at the time of claimant's accident, the lift attendants were trained to ensure that seats were placed down before skiers were loaded onto a chair. As McClure explained, the Topridge lift had at least two attendants assigned to work the bottom of the lift, one standing at the bull wheel and another in the "lift shack" located to the right of the lift (T.67). Both attendants, according to McClure, were responsible for ensuring that the seats were down before reaching a Gore Mountain patron. Indeed, McClure agreed that the "system" implemented to protect skiers against the risk of injury caused by a flipped seat was "to have the attendants be vigilant and make sure that if [a chair was not in the down position] that they saw it and put the seat down" (T.71). Put another way, "if the lift attendant saw" a flipped-up seat, the attendant "would correct that dangerous condition" (T.69). McClure testified that if an attendant failed to see that a seat was flipped up and failed to put it down, that attendant would not be doing the job properly.

McClure testified regarding the "Daily Start-up Record" and "Chairlift Daily Log" for the Topridge lift, which were completed by Gore Mountain staff for the day of the incident ( Exh A). The start-up record describes the weather conditions as clear with wind speeds of 5 to 20 miles per hour, which was not particularly windy for the mountain, according to McClure. In addition, the chairlift log shows the names of staff responsible for overseeing the Topridge lift on the date of the incident. Justin Campbell and Tim Hayes were listed as the base attendants who would have been responsible for making sure that seats were placed down. The log states that there were no lift malfunctions, passenger accidents, or injuries on the date of claimant's fall. McClure testified that no lift incident report or accident investigation was completed because claimant reported he was "okay" after the accident (T.79).

McClure testified that, in connection with this litigation, he was asked to search for records of incidents similar to claimant's accident. He identified one report from January 2019 describing an incident where a skier was loaded onto a chair on the Topridge lift which had an upright seat (see Exh 4). The report noted that, after the skier was loaded, the chair traveled several feet off the loading ramp before it was stopped. However, the skier "did not feel comfortable jumping," so the ski patrol informed the attendant on duty to restart the lift and the patrol would meet the stuck skier at the top of the lift (id.). The report further indicates that the "[c]ustomer safely reached [the] top" (id.). With respect to the cause of the incident, the supervisor's comments state, "[a]ttendant at bottom of lift was inexperienced and in training when incident occurred. Winds flipped seats up [sporadically] and the new attendant did not notice seat up until it was too late" (id.). The report was completed by the same supervisor who was working on the day of claimant's accident. McClure testified that he has "seen an improvement" in the ability of staff to ensure seats are kept down while the lift is running since the January 2019 incident (T.81).

On examination by defendant, McClure testified that he had been skiing for decades and, in his experience, it was important for skiers to be aware of their surroundings because skiing is an "inherently dangerous sport" (T.82). McClure further explained that skiers who are waiting to get onto the Topridge lift at the "load here" zone are not only able to see the chairs approaching on their right side coming down the mountain, but the "chair that [they are] going to load is coming right by" and passing them as they wait (T.83). In addition, McClure stated that when he uses the chairlift, he "always" looks behind him at the chair in which he is going to sit (id.), as "most everybody" would do as a matter of course, in his experience (id.). McClure testified that there is nothing preventing skiers from flipping a seat down themselves if it arrives in an upright position.

On further examination by claimant, McClure stated that the lift attendant at the bull wheel has access to a control panel with stop, slow, and emergency shutdown buttons. He acknowledged that these buttons could be used by the lift attendant to prevent a chair with an upright seat from reaching a skier, but explained that the stop button does not work immediately and the chair travels several feet before stopping. In addition, McClure agreed that individuals getting ready to use the lift should be focused on stopping at the "load here" marker, but noted that they should be focused on "other things" as well (T.89). He further stated that there would have been "nothing obscuring [claimant's] view of the downbound chair," which he would have been "loading within a matter of a few seconds"—even if he had been positioned to the left of another skier loading onto the same chair (T.88). Finally, when pressed by counsel as to whether visitors to Gore Mountain should really be expecting that their chairlift would not have a seat in it, McClure testified "[y]es . . . you have to be aware of your surroundings" (T.90).

Justin Campbell, one of the lift attendants assigned to the Topridge lift on the day of claimant's accident, was the last to testify. Campbell testified that he did not have any recollection of the day of the accident, but he knew he was working at the Topridge lift that day because he had seen his name on the paperwork. He testified that there were two lift attendants on duty the day the accident occurred, and he was the attendant stationed at the bull wheel helping to load skiers onto the lift.

As McClure had explained, Campbell likewise testified that all the seats on the Topridge lift would be checked and put down in the morning. But they would nevertheless flip up "very often" on windy days (T.93). Campbell was well aware of this problem before the date of the accident and stated that, on such days, the majority of chairs would be flipped up. According to Campbell, the issue with the seats was "on the radar" for all attendants working at the Topridge lift, including the attendant helping skiers load onto the chairs and the attendant in the booth next to the lift (T.94). Campbell agreed that it was the job of the attendant to look out for seats that were flipped up and to ensure that they were placed down before reaching customers. He explained that his personal process for dealing with the issue was to keep his "head on a swivel" and constantly look uphill for upright seats and, if he saw one, he would press the "slow" button on the control panel to make sure he had enough time to put the seat down before it reached the skier (T.94-95). In other words, the "procedure" used by lift attendants was to be "vigilant" in looking out for upright seats and to use the control panel to slow or stop the lift before it reached a skier (T.99). This was something Campbell dealt with "constantly" throughout his workday (T.96).

Campbell stated he was aware that it could be dangerous if a patron sat in the chair while the seat was flipped up. He testified that he personally never saw a patron get loaded into an empty chair frame, but he had been told by other Gore Mountain employees that it had happened before. On one occasion, Campbell saw a skier presented with a seatless chair but the patron stepped off to the side instead of attempting to sit down. Campbell denied that he observed the incident involving claimant and testified he was likely going to the bathroom in the woods when it happened.

Like each of the other witnesses, Campbell testified that there were no signs warning skiers about the possibility of flipped-up seats on the lift, but there were signs advising skiers to "to wait for an attendant" before coming forward and attempting to load (T.97-98). In addition, Campbell confirmed that there is usually only a short line to get on the Topridge lift and usually people can "ski right up" and "get right on" (T.99).

Finally, Campbell testified that the Topridge lift was "notorious" among Gore Mountain employees for having light seats that do not lock in place (T.102). He noted that other lifts at Gore Mountain have clips on the seats that stop them from flipping up while the lift is operating. According to Campbell, the Topridge lift was "outdated," "should be replaced," and was in fact slated for replacement in 2025 (T.103).

Analysis

Initially, claimant contends that defendant was negligent because it implemented an inadequate solution for the known problem of seats flipping up on the Topridge lift. Claimant argues that, instead of relying on lift attendants to monitor the seats, defendant should have installed clips on the seats to keep them locked down or used heavier seats which would not be flipped up by the wind so easily. Claimant's argument regarding the inadequacy of defendant's system for keeping the seats down appears to be, in essence, a claim that the lift chairs were negligently designed or maintained. However, claimant did not establish by a preponderance of the evidence—or even allege—that the failure to install clips or some other mechanism to keep the seats down constituted a deviation from the general industry customs or standards with respect to the design, construction, or maintenance of ski chairlifts (see Simoneau v State of New York, 248 AD2d 865, 866 [3d Dept 1998]; see also Verro v New York Racing Assn., 142 AD2d 396, 400-401 [3d Dept 1989]; cf. Cole v New York Racing Assn., 24 AD2d 993, 994 [2d Dept 1965], affd 17 NY2d 761 [1966]; see generally Katleski v Cazenovia Golf Club, Inc., 44 NY3d 212, 220-221 [2025]; 12 NYCRR Part 32).

Claimant's main argument is that, even assuming defendant had an adequate system for keeping the seats down, its employees were negligent in carrying out their responsibilities under that system on the day of the accident. To that end, claimant asserts that it was uncontradicted that the lift attendants on duty failed to observe that claimant's seat was up, stop or slow the lift, and put the seat down before it was presented to claimant. Defendant counters that claimant cannot recover under these circumstances because claimant was a voluntary participant in an inherently dangerous sport who assumed the risk of injury. Further, defendant argues that claimant failed to make reasonable use of his senses to observe the missing seat on the chair, which defendant asserts constituted an open and obvious condition. Defendant thus contends that claimant should be found comparatively negligent if the Court does not dismiss the claim in its entirety. For the following reasons, the Court finds that defendant is liable for the negligent operation of the lift and, further, that claimant was comparatively negligent.

The Doctrine of Primary Assumption of the Risk Does Not Bar This Claim and Claimant Has Established Defendant's Negligence By a Preponderance of the Evidence

To establish negligence in defendant's operation of the Topridge lift, claimant must prove that defendant breached a duty of care owed to him and that such breach proximately caused him to suffer an injury (see Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]; Turcotte v Fell, 68 NY2d 432, 437 [1986]; Turan v Union Modular Homes, LLC, 234 AD3d 1063, 1065 [3d Dept 2025]). The owner or operator of a ski resort has a duty to exercise reasonable care in the operation of a ski chairlift in order to ensure the safety of lift passengers (see Kegler v State of New York, 38 Misc 3d 1224[A], *11 [Ct Cl 2012], citing Miller v Holiday Val., Inc., 85 AD3d 1706 [4th Dept 2011]). But, when analyzing whether a duty of care was breached by a proprietor of a recreational venue to an individual who participates in sports or other recreational activities at such venue, the Court must consider " 'the risks [the individual] assumed when [that individual] elected to participate in the event and how those assumed risks qualified [the] defendant['s] duty to [that individual]' " (Morgan v State of New York, 90 NY2d 471, 485 [1997], quoting Turcotte, 68 NY2d at 432). Indeed, "a [claimant] who freely accepts a known risk 'commensurately negates any duty on the part of the defendant to safeguard [the claimant] from the risk' " (Custodi v Town of Amherst, 20 NY3d 83, 87 [2012], quoting Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395 [2010]). This limitation on the defendant's duty is known as the doctrine of primary assumption of the risk. And although this doctrine does not " 'sit comfortably' within the landscape of comparative fault" established by the Legislature (Grady v Chenango Val. Cent. Sch. Dist., 40 NY3d 89, 94 [2023], quoting Trupia, 14 NY3d at 395; see CPLR 1411), its application is justified in "the narrow context of athletic and recreative activities" as "necessary to promote free and vigorous participation" in such activities (Katleski, 44 NY3d at 218 [internal quotation marks omitted]; but see Grady, 40 NY3d at 100-118 [Rivera, J., dissenting] [urging wholesale abandonment of the doctrine]).

Thus, under the doctrine of primary assumption of the risk, " '[a] person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation' " (Katleski, 44 NY3d at 218, quoting Anand v Kapoor, 15 NY3d 946, 947-948 [2010]). The doctrine bars recovery where "a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks" (Grady, 40 NY3d at 95 [internal quotation marks omitted]; see Custodi, 20 NY3d at 88). Indeed, "[i]f the risks of the activity are fully comprehended or perfectly obvious, [the claimant] has consented to them and [the] defendant has performed its duty" (Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012] [internal quotation marks omitted]). A participant's awareness of the risks associated with a sport is " 'assessed against the background of the skill and experience of the particular [participant]' " (Morgan v State of New York, 90 NY2d 471, 486 [1997], quoting Maddox v City of New York, 66 NY2d 270, 278 [1985]). And although participants in sports or recreational activities consent to risks which are inherent in the sport, such participants are "not . . . deemed to have assumed 'risks that are concealed or unreasonably enhanced' " (Grady, 40 NY3d at 95, quoting Custodi, 20 NY3d at 88; see A.G. v Vail Resorts Mgt Co., 226 AD3d 1249, 1250 [3d Dept 2024] [citing Grady]; see also Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]). Put another way, "in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport' " (Morgan v State of New York, 90 NY2d at 485, quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]). The rule imposing liability for unreasonably enhanced risks "serves as an 'important counterweight to an undue interposition of the assumption of [the] risk doctrine' " (Katleski, 44 NY3d at 219, quoting Morgan v State of New York, 90 NY2d at 485).

As relevant here, it is well established that a participant in the sport of downhill skiing assumes the risks inherent in that activity (see DeMulder v Hunter Mtn. Ski Bowl, Inc., 233 AD3d 1147, 1148 [3d Dept 2024]; Giordano v Shanty Hollow Corp., 209 AD2d 760, 761 [3d Dept 1994], lv denied 85 NY2d 802 [1995]; Schorpp v Oak Mtn., LLC, 143 AD3d 1136, 1137 [3d Dept 2016]; see also Bennett v Kissing Bridge Corp., 17 AD3d 990, 991 [4th Dept 2005], affd for reasons stated below 5 NY3d 812 [2005]; Festa v Apex Capital, LLC, 171 AD3d 1016, 1017 [2d Dept 2019]; see generally General Obligations Law § 18-101 [recognizing specific risks inherent in downhill skiing]). However, assumption of the risk does not always foreclose claims involving injuries caused by the use of a ski chairlift. For example, in Morgan v Ski Roundtop (290 AD2d 618, 620 [3d Dept 2002]), the plaintiff skied into a wall after exiting the chairlift because she was attempting to avoid colliding with another skier who had fallen in front of her. She alleged, among other things, that the defendants were negligent because the lift operator should have stopped the lift before claimant exited so that the fallen skier could get off the unloading ramp while claimant remained seated. Initially, the Morgan Court acknowledged that "there is undoubtedly some risk of injury inherent in entering, riding[,] and exiting from a chairlift at a ski resort" (id.). However, the Third Department further explained that the risk of using a chairlift "is not of such magnitude as to eliminate all duty of care and thereby insulate the owner [of a ski resort] from claims of negligent supervision and training of the lift operator or negligent maintenance and operation of the lift itself since such negligence may unduly enhance the level of risk assumed" (id., citing Morgan v State of New York, 90 NY2d at 485). Thus, the Third Department affirmed the denial of summary judgment, concluding that the defendants could be held liable if their employee was "negligent in exercising his discretion to not stop the lift" where the defendants' policy may have required such action by the employee (Morgan v Ski Roundtop, 290 AD2d at 620; see also Tone v Song Mtn. Ski Ctr., 113 AD3d 1126, 1127 [4th Dept 2014]; Miller v Holiday Val., Inc., 85 AD3d at 1707).

Here, the trial testimony established that Gore Mountain staff were aware of an ongoing issue with the seats on the Topridge lift being upright during its hours of operation, which could be caused either by the wind flipping them up during the day or by staff failing to put them down in the morning before the mountain opened to the public. McClure acknowledged that an upright seat constituted a "dangerous condition" because a skier could become trapped in the frame of the chair and then fall (T.69). Falling from the Topridge lift in this way could easily lead to serious injury because, as McClure noted, the chairs pass over an approximately 70-foot-deep crevasse only 10 seconds after departing the loading area. Thus, McClure explained that it was the job of the lift attendants to "correct" this dangerous condition by vigilantly monitoring the chairs as they approached the loading area and ensuring that the seats were properly placed down before they reached skiers (id.). This procedure was used by defendant in lieu of installing clips, locks, or another mechanism to keep the seats secure during the day. Campbell, the lift attendant stationed at the bull wheel on the date of claimant's accident, likewise acknowledged the dangerousness of the seat issue as well as the attendants' responsibilities. He testified that lift attendants can use buttons to stop or slow the lift if they see an upright seat, noting that he dealt with this issue constantly during his workday. Importantly, as McClure testified, if a skier was presented with an upright seat, then the lift attendants failed to do their jobs correctly. There is no dispute that claimant was, in fact, presented with a seat in the upright position, and that no warning signs existed to apprise him or other skiers of this possibility. Therefore, regardless of whether the fault lies with Campbell—who claimed to have been using the bathroom at the time of the incident—or the other lift attendant on duty who did not testify at trial, one or more of defendant's employees necessarily failed in their duties to monitor the lift and put the seat down. Indeed, as claimant correctly observes, defendant does not even argue that its employees properly executed their duties in that regard or otherwise exercised reasonable care in operating the lift.

Like in Morgan v Ski Roundtop, the evidence in this case demonstrates that defendant implemented a procedure requiring its employees to monitor a ski chairlift and take certain actions with respect to the operation of the lift to prevent injury to riders. Defendant's employees here failed to adhere to their training and do what was required of them under that procedure. Thus, claimant has proven by a preponderance of the credible evidence that defendant negligently operated the Topridge lift and thereby created an enhanced risk "over and above the usual dangers that are inherent" in skiing (Morgan v State of New York, 90 NY2d at 485 [internal quotation marks omitted]; see Morgan v Ski Roundtop, 290 AD2d at 620; Tone, 113 AD3d at 1128; Nasrani v State of New York, UID No. 2023-038-107 [Ct Cl, June 8, 2023] [DeBow, J.]).

The Court further finds that defendant's negligence was a proximate cause of the accident. To establish the element of proximate cause, a claimant must show that the defendant's negligence was "a substantial cause of the events which produced the injury" (Hain, 28 NY3d at 528-529 [internal quotation marks omitted]; see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Cavosie v Hussain, 215 AD3d 1080, 1085 [3d Dept 2023]). Here, defendant's negligence was a substantial cause of the accident because claimant could have safely loaded onto the lift if defendant's employees had properly performed their duties (see Miller, 85 AD3d at 1708).

Defendant's arguments that this claim is barred under the doctrine of primary assumption of the risk are unpersuasive. To be sure, defendant correctly points out that claimant is an experienced skier. This fact generally weighs in favor of the application of primary assumption of the risk because experienced or highly skilled athletes are assumed to have greater knowledge of the inherent risks associated with a sport. However, as the Court of Appeals has explained, "knowledge plays a role but inherency is the sine qua non" of the doctrine (Morgan v State of New York, 90 NY2d at 484). In other words, if an injury is caused by a risk that is not inherent in the sport, then primary assumption of the risk is not a bar to recovery even if the participant is experienced or skilled (see e.g. Grady, 40 NY3d at 98-100; Tone, 113 AD3d at 1128). Notably, no evidence was proffered at trial in this case to establish that the particular risk which caused claimant's accident was inherent in the sport of skiing. Indeed, claimant testified without contradiction that he had never previously encountered—or even considered the possibility that one could encounter—an upright seat on a chairlift, and defendant did not otherwise offer any evidence to establish that this is a common risk of using a ski chairlift. Rather, Campbell's testimony indicated that other lifts at Gore have clips on the front of the seats to keep them from flipping up, and that the Topridge lift was outdated and needed to be replaced due to this issue. Thus, primary assumption of the risk is not a complete bar to recovery here notwithstanding that claimant was an experienced skier.

Defendant also emphasizes that the upright seat was an "open and obvious" condition (Def's Post-Trial Br, at 6), and cites Sontag v Holiday Val., Inc. (38 AD3d 1350, 1351 [4th Dept 2007]), seemingly for the proposition that the open and obvious character of the risk is a reason to dismiss the claim. Defendant misconstrues Sontag's holding. The Fourth Department in that case held that primary assumption of the risk applies where "the risk is open and obvious to the participant, taking into consideration his or her level of experience and expertise, and is an intrinsic part of the sport" (id. at 1351 [emphasis added] [internal quotation marks omitted]). Thus, Sontag should not be read to eschew the doctrine's core requirement of inherency. And as discussed above, claimant's accident in this case was caused by an unreasonably enhanced risk which is not inherent in the sport. To the extent the upright seat was an open and obvious condition which claimant should have observed, such fact is relevant only with respect to claimant's comparative fault as discussed below (see Osterhoudt v Acme Mkts., Inc., 214 AD3d 1181, 1181 [3d Dept 2023]).

Defendant further argues in its supplemental brief that primary assumption of the risk applies because claimant's seat may have been flipped up by the wind, and the risk of injury caused by "weather conditions" is inherent in the sport of skiing (Def's Suppl Brf at 3, citing General Obligations Law § 18-101 [1]). This argument is also unpersuasive. The evidence at trial did not establish the specific reason why claimant's seat was flipped up and, notably, McClure testified that the conditions were not significantly windy on the day of the accident. Moreover, it is not relevant whether the seat was flipped up by the wind or something else because defendant's procedure required its employees to monitor the seats and ensure that they were in the proper position regardless of what may have caused them to flip up. The fact that an inherent risk like weather conditions may have been one cause of the accident does not foreclose liability where another proximate cause was the enhanced risk created by the negligent operation of the lift (see Kegler, 38 Misc 3d 1224[A], *11 [claim not barred by assumption of the risk where claimant alleged negligent operation of a ski chairlift even if accident was caused in part by the known risk of wearing loose clothing on the lift], citing General Obligations Law § 18-104 [9]).

Defendant Established By a Preponderance of the Evidence That Claimant Was Comparatively Negligent

Having determined that defendant is liable to claimant, the Court must next consider the issue of comparative fault.³ Generally, where the claimant's injuries are partially caused by the claimant's own negligence or culpable conduct, the total damages otherwise recoverable are proportionally reduced in accordance with the claimant's responsibility for causing the accident (see CPLR 1411). The apportionment of fault is an issue of fact for the Court to resolve (see Mannello v Town of Ulster, Post 1748, Am. Legion, 272 AD2d 804, 804-805 [3d Dept 2000]; Loja v Lavelle, 132 AD3d 637, 640 [2d Dept 2015]).

Defendant demonstrated by a preponderance of the evidence that claimant was comparatively negligent because he failed "to see what by [the] proper use of his senses he might have seen" (Johnston v State of New York, 127 AD2d 980, 981 [4th Dept 1987] [lv denied 69 NY2d 611 (1987)], citing Weigand v United Traction Co., 221 NY 39, 42 [1917]; see Le Claire v Pratt, 270 AD2d 612, 613 [3d Dept 2000]), and that his actions were also a proximate cause in bringing about the accident. Contrary to the contentions in claimant's post-trial brief, it was not reasonable for claimant to fail to observe that his seat was not lowered down into position. Although claimant testified he was focused on other tasks—for example, skiing up to the loading area and grabbing the bar on the left side of the chair—it was nevertheless incumbent upon him to have full awareness of his surroundings and to look behind him before sitting down. Indeed, McClure—himself an experienced skier—testified that he always looks behind him before sitting down to use a chairlift, as do all other skiers. And significantly, claimant's skiing companion, Gosselin, had no problem doing the same and seeing the seatless chair as it approached the turn at the bull wheel and immediately stepping out of the way. Even if Gosselin was in a slightly better position to see the chair because she was standing on the right closer to the bull wheel, McClure testified that claimant's view from the left side of the chair would not have been obstructed and he could have seen what Gosselin saw. As McClure testified, the chairs pass right by the individuals waiting to load as the chairs come down the right side of the lift; yet claimant testified he failed to see them. Further, as multiple witnesses testified, there were no crowds on the day of the accident and, thus, there would not have been any people blocking claimant's view of the chairs coming down the lift. Indeed, claimant himself acknowledged that it was not crowded when he and Gosselin reached the lift, stating that there was not much of a line—if any—at that time. Finally, claimant offered no explanation—let alone a satisfactory one—for failing to notice that Gosselin and other skiers around him were screaming at him to try and alert him about the improperly positioned seat.

Claimant was also negligent by climbing onto the edge of the chair's frame, which caused him to be thrown from the lift when the attendant stopped it. Although it is understandable that claimant panicked and wanted to disembark quickly before the chair passed over the crevasse, claimant should have anticipated that an attendant would stop the lift once it became clear that the seat had not been put down properly. Instead of being thrown from his perch at the edge of the seat frame, claimant could have received assistance from an attendant to get down safely or, like the individual described in the report of the 2019 incident (see Exh 4), claimant alternatively could have chosen to ride the lift to the top and be rescued there.

Still, the Court finds that defendant bears greater responsibility for the accident than claimant. Although claimant failed to see something he should have seen, he would not have had any specific reason to expect that he might be presented with a flipped-up seat, particularly where no warning signs had been posted about such a risk. Defendant's employees, on the other hand, were fully aware of the ongoing problem with the seats and failed to observe and correct the issue with the admittedly dangerous condition of claimant's seat even though they were trained to do so. Moreover, as claimant testified, the lift attendants were not just passively monitoring the chairs as skiers loaded onto them; rather, they were acting affirmatively by guiding the chairs and placing them against the back of skiers' legs. Defendant's employees were the first line of defense on this safety issue and, had they done their jobs, claimant would not have been exposed to a dangerous condition at all. Accordingly, liability is apportioned seventy-five percent (75%) to defendant and twenty-five percent (25%) to claimant.

The parties are encouraged to work together in good faith to resolve the matter of damages. If the parties are unable to settle the matter on their own, following any additional discovery necessary on the extent of claimant's damages, the parties shall participate in a Court-facilitated alternative dispute resolution process (see 22 NYCRR Part 160). In the event a settlement is not ultimately reached, a trial on the issue of damages will be held as soon as practicable.

Any motions or applications not previously ruled upon are denied.

Let interlocutory judgment be entered accordingly.

March 31, 2026

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

FOOTNOTES

1.   Public Authorities Law § 2622 confers jurisdiction on the Court of Claims to hear suits against "the authority"— meaning ORDA—with respect to claims for damages "arising out of the operation . . . of the Gore [M]ountain ski center." However, the Appellate Division has held that ORDA is a State agency, not an independent public benefit corporation with an existence separate and apart from the State (see Craig v State of New York, 261 AD2d 683, 684 [3d Dept 1999], lv denied 94 NY2d 752 [1999]). Judges of the Court of Claims have disagreed on whether the State or ORDA is the proper named defendant in cases like this one (compare Rosen v State of New York, UID No. 2003-028-570 [Ct Cl, Oct. 2, 2003] [Sise, P.J.] [noting that ORDA "need not . . . be named separately from the State as a defendant"], with Steiner v New York State Olympic Regional Dev. Auth., UID No. 2003-015-580 [Ct Cl, Aug. 12, 2003] [Collins, J.] [amending caption to delete the State as a defendant and noting that ORDA is the only proper defendant]). The issue perhaps has little practical significance, since any judgment will come from the same appropriation of State funds regardless of whether ORDA or the State is named as the defendant (see Public Authorities Law § 2622 [4]; Court of Claims Act § 20). Thus, the caption in this case will remain as designated by the parties, and the State and ORDA will be referred to collectively as "defendant" for purposes of this decision (see e.g. Nasrani v State of New York, UID No. 2023-038-107 [Ct Cl, June 8, 2023] [DeBow, J.]).

2.   After receiving the parties' initial post-trial briefs, the Court requested and received supplemental briefing from the parties.

3.   Comparative fault was properly raised as a defense in the Answer (see Answer, ¶ 6).

Zainab A. Chaudhry, J.