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Supreme Court, New York,

Deborah LECONEY, Plaintiff, v. TASTE OF COUNTRY PRODUCTIONS, LLC, Townsquare Productions, Inc., Townsquare Live Events, LLC, Hunter Mountain Festivals, Ltd., Hunter Mountain Holding Corp., Hunter Mountain Resort LLC, Hunter Mountain LLC, Hunter Inn Mountain Corp., Hunter Mountain Base Lodge, Inc., Quadline, Inc., Charles Slutzky, David Slutzky, Paul Slutzky, Gary Slutzky, Carol Slutzky-Tenerowicz, and Gary H. Chetkof, Individually and d/b/a Taste of Country 2015, Defendant.


Decided: August 10, 2018

Julie A. Nociolo, Esq., Counsel for Plaintiff, E. Stewart Jones Hacker Murphy, LLP, 28 Second Street, Troy, New York 12180 Matthew J. Kelly, Esq., Counsel for Defendants, movant, Romer Wallens Gold & Mineaux, LLP, 13 Columbia Circle, Albany, New York 12203

Plaintiff brought this premises liability action seeking to recover for personal injuries she allegedly sustained on June 12, 2015 at the Taste of Country Music Festival held on the grounds of Hunter Mountain. The concert was held on one of the ski slopes and was set up in almost a stadium seating-like arrangement, wherein the stage was at the flattest section of the ski slope and concertgoers would stand or sit on the inclined portion of the slope. Between the steeper incline and the flat ground of the stage was an area mostly flat with a slight incline, wherein there were vendor tents, stations, and mechanical structures/tents. There was also standing room for some concertgoers to be closer to the stage on the flat ground.

Plaintiff arrived early and waited for the gates to open between 1 PM and 1:30 PM. Upon passing through the gates, she testified that the topography was both level and unlevel, and was comprised of dirt, grass, stone, and straw. She testified that she was wearing flip-flops/sandals because she did not realize the concert was held at a mountain or on a ski slope. She testified to having trouble walking on the ground because it was slippery, unlevel, and divots were present.

After walking approximately five to eight minutes from the gate into the concert area, she was near a vendor tent situated in an area that “was a little sloped there.” Plaintiff was in front of and walking to turn past the vendor tent. The ground surface was a “[s]traw, uneven, incline.” She stepped with her left foot which slipped on “[t]he terrain[,]” more specifically “the straw. And it just wasn't even ground. It was lumpy-like.” She testified her left foot slid to her side and her right leg wound up behind her which caused her to fall backwards onto her right foot resulting in an alleged injury.

Now, Defendants move for summary judgment on the grounds that they satisfied their duty of maintaining a reasonably safe premises for the music festival, and the conditions which caused Plaintiff's injuries were open and obvious. Plaintiff opposes the application, and Defendants submit a reply.

To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. (See Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; accord Hollis v. Charlew Const. Co., Inc., 302 AD2d 700 [3d Dept 2003]; Balnys v. Town of New Baltimore, 160 AD2d 1136, 1136 [3d Dept 1990] [noting the movant must come “forward with competent proof refusing the allegations of the complaint as amplified by the bill of particulars.”].) In a premises liability matter, “[t]o establish a prima facie entitlement to summary judgment, defendant was required to show that it maintained its property ‘in a reasonably safe condition and that [it] neither created nor had actual or constructive notice of the allegedly dangerous condition’ ” (Lucatelli v. Crescent Assoc., 132 AD3d 1225, 1225 [3d Dept 2015], quoting Decker v. Schildt, 100 AD3d 1339, 1340 [3d Dept 2012]; see also Basso v. Miller, 40 NY2d 233 [1976] ).

Here, initially, Defendants alleges that the conditions on the subject property were open and obvious. However, “[t]he fact that a dangerous condition is open and obvious does not relieve a landowner of all duty to maintain his or her premises in a reasonably safe condition” (Barley v. Robert J. Wilkins, Inc., 122 AD3d 1116, 1118 [3d Dept 2014]; Coleman v. Crumb Rubber Manf., 92 AD3d 1128, 1131 [3d Dept 2012]; see MacDonald v. City of Schenectady, 308 AD2d 125, 127 [3d Dept 2003] [“the open and obvious nature of an allegedly dangerous condition does not, standing alone, necessarily obviate a landowner's duty to maintain his or her property in a reasonable safe condition.”]; see also Anton v. Correctional Med. Servs., Inc., 74 AD3d 1682, 1682 [3d Dept 2010] [“While an open and obvious defect will negate the duty to warn of a potentially dangerous condition, it will not necessarily obviate a defendant's duty to maintain the property in a reasonable safe condition.”] ).

Nor does the fact that Plaintiff was wearing flip-flops/sandals shield Defendants from liability as such is a measure of comparative fault (damages) to be assessed by a trier of fact (Beglin v. Hartwick College, 67 AD3d 1172, 1173 [3d Dept 2009]; Monge v. Home Depot, Inc., 307 AD2d 501, 502 [3d Dept 2003]; see also Alami v. Volkswagen of America, Inc., 97 NY2d 281, 286 [2002] ), as the Court cannot say that Plaintiff's footwear was a superseding intervening cause of the subject accident. (See Litts v. Best Kingston Gen. Rental, 7 AD3d 949, 952 [3d Dept 2004] [noting that conduct of the plaintiff was relevant to the issue of comparative negligence as it did not, as a matter of law, constitute a superseding intervening act sufficient to absolve defendant of all liability]; see also Derdiarian v. Felix Contracting Corp., 51 NY2d 308, 316 [1980].)

Turning to the merits of the application, the Court finds that Defendants did not satisfy their moving burden of establishing the premises were kept in a reasonably safe condition. They offer no individual or testimony that the premises were kept in a reasonably safe condition or that they did not create the allegedly dangerous condition. The deposition of Scott Thomas Nichols provides that, while he would personally inspect the premises during a walkthrough prior to a show, he did not have a specific recollection of performing an inspection before this concert but noted he always did so. He said that comments to the grounds/maintenance team for these walkthroughs were “verbal” and that he did not recall if he made any comments on the day of the subject incident. He admitted that straw, woodchips, or gravel could be used “to help improve the grounds[,]” and noted the reason was “[t]raditionally, it's safety.” He does not recall whether he observed straw or hay down on the ground for the subject concert. When he was shown the photograph marking where Plaintiff fell and asked whether he recalled the conditions of the mountain in that area, he testified “[t]hat specific exact area, you know, without seeing it and standing there, looking at it, I do not recall that specifically.” He stated that the decision to place straw or hay down would be that of the mountain manager, who was Bruce Transue.

Mr. Transue submits a moving affidavit in support, wherein he avers that he is familiar with the subject concert in 2015. He avers that the area of the concert is a “natural amphitheater” which is not paved nor level. He avers “[a]s part of the preparation for the festival, we would put hay down.” He claims that he would inspect the area daily during the festival to “ensure that garbage is collected and that the area was reasonably safe.” He concludes his affidavit by averring that after a rainstorm the ground covering is not removed, it is used to prevent the proliferation of mud, and that the ground is a ski slope in the winter and not “perfectly flat ground.”

However, what he does not say in his short affidavit is that he recalled inspecting the subject premises and finding it to be in reasonably safe condition on the day of the subject incident. Nor does Ms. Nichols' testimony. Not only does this not establish Defendants' moving burden, Mr. Transue's affidavit admits to possibly creating a dangerous condition. (See Chamberlain v. Church of the Hole Family & Immaculate Heart Cent. Schools, 160 AD3d 1399 [4th Dept 2018] [affirming denial of the defendant's summary judgment motion in a slip and fall matter where the “[d]efendants' own submissions raised triable issues of fact whether they created the allegedly dangerous conditions and whether those conditions were a proximate cause of plaintiff's fall.”] ).)

Much of the moving papers and Mr. Transue's affidavit make reference that the area is a ski slope and topographically is rugged. While the Court acknowledges the geographic outdoor terrain and the intentional choice to pick a unique venue like Hunter Mountain to hold this special event, which may be pertinent in other and similar matters, here Plaintiff's testimony is that she “slipped” on the straw that was wet. Even though she also noted the ground was “lumpy,” it is clear that her left foot slid on the wet straw as opposed to tripping over the terrain or falling into a divot. This is even corroborated on the incident report generated by Defendants' staff, attached as Exhibit B to Defendants' reply papers, which noted the “Site Conditions” were “wet” and “other: straw.” This straw was not naturally grown on the mountain as Defendants representatives testified they would purchase it from a local farmer. The straw was placed to “improve the grounds” for “safety” reasons. There were at least two other alternatives that Mr. Nichols acknowledged that could have been used, but Defendants chose straw instead which allegedly caused a slick surface.

Moreover, the Court finds Defendants reliance on Cometti v. Hunter Mountain Festivals Ltd. (241 AD2d 96 [3d Dept 1997] ) is misplaced. In Cometti, the plaintiff was hiking down an advanced ski trail on Hunter Mountain—named “Hellgate”—to get to a mountain bike race. The Appellate Division, Third Department, found that the plaintiff was actively engaged in the activity of hiking, which immunizes the defendants from liability pursuant to General Obligations Law § 9-103. Here, Plaintiff had walked from the gate to an area near a vender tent on uneven but relatively flat (not sloped) ground for approximately five to eight minutes before falling. She was near vendor tents and moving towards the stage which was in a rather flat area. It cannot be said, certainly not as a matter of law, that she was engaged in the leisurely activity of hiking. Particularly since Defendants make much to do about Plaintiff's choice of footwear, which is also not indicative of someone intending to enjoy a mountainous hike.

Therefore, it cannot be said that Defendants have established they maintained the premises in a reasonably safe condition and that they did not create the allegedly dangerous condition (See Lucatelli, 132 AD3d at 1225.) The burden does not shift to Plaintiff to raise a question of fact or credibility, which there appears to be as to the propriety of which medium (straw, gravel, or woodchips) should or could have been used to abate the proliferation of mud and not cause the alleged resultant dangerous or slippery condition.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Defendants' motion is DENIED, and all other relief requested therein is denied in its entirety.

This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.


Papers Considered:

Notice of motion, dated April 3, 2018; affidavit of Matthew J. Kelly, Esq., with annexed exhibits, dated April 3, 2018; memorandum of law, dated April 3, 2018; affidavit of Bruce Transue, dated March 24, 2018;

Attorney's affirmation, of Julie A. Nociolo, Esq., dated June 6, 2018; memorandum of law, dated June 6, 2018; and

Reply affidavit, of Matthew J. Kelly, Esq., with annexed exhibits, dated June 12, 2018.

Lisa M. Fisher, J.

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