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Decided on February 28, 2007
Supreme Court, Essex County

775-04
Brennan & White LLP, Queensbury (Daniel J. Stewart of counsel), for Plaintiffs.
Roemer Wallens & Mineaux, LLP, Albany (Matthew J. Kelly of counsel), for Defendants New
York State Olympic Regional Development Authority and Town of North Elba.
James P. Dawson, J.

The Court is asked to resolve the summary judgment motion of the Defendants New York State Olympic Regional Development Authority and Town of North Elba (hereinafter defendants) in this premises liability action. The action was previously discontinued as against the Defendant Lake Placid Central School District. The action arises out of an accident that occurred on December 29, 2003 at the Sheffield Speedskating Oval in the Village of Lake Placid, Essex County. The Plaintiffs went to the oval with their children to go ice skating around 7 p.m. on that date. The oval itself was cleaned for ice skating, and inside the oval was a closed hockey rink, as well as a bonfire with benches around it. After about 20 minutes of skating, the Plaintiffs attempted to cross the ice inside of the oval to reach the bonfire and benches. The Plaintiff Patricia Macdonald fell, apparently due to the poor ice surface inside of the oval, and broke her ankle.
The Defendants argue on this motion that they had no duty to maintain the ice inside of the oval, claiming that Patricia Macdonald had no basis for assuming that the inside of the oval would be safe to skate on. In particular, the Defendants argue that the inside of the oval was "not open for access" and point to the presence of a two and a half inch drop at the edge of the maintained ice. The Defendants also rely on the Plaintiffs' deposition testimony indicating that Patricia Macdonald stopped before stepping off of the oval and that the Plaintiff Ian Macdonald tested the ice before stepping onto it. The Defendants also argue that, even if they had a duty of care, they satisfied it by placing a pathway of rubber mats and carpets to the bonfire, a pathway which the Plaintiffs did not [*2]use. The Defendants also appear to argue that Patricia Macdonald assumed the risk of injury.
The Plaintiffs oppose the motion, arguing that Patricia Macdonald did not assume the risk of skating on poorly maintained ice inside of the oval given the low levels of lighting, the Defendants' failure to provide any warning, the presence of the bonfire inside of the oval and the drop off at the edge of the oval.As for the duty to warn or protect the Plaintiffs from the ice conditions inside of the oval, the Plaintiffs point to the facts that skaters were expected to travel to the bonfire and did not always use the pathway, as well as the lack of any warnings. The Defendants' reply affidavit was submitted after the return date of the motion and will not be considered.
The Defendants' motion is denied. The Defendants "have a duty to maintain their premises in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others" (Comeau v Wray, 241 AD2d 602, 603 [1997]; see Santalucia v County of Broome, 228 AD2d 895, 896 [1996]). The Defendants additionally have a duty to warn individuals on their premises of potentially dangerous conditions, so long as those conditions are not readily observable (see Blecher v Holiday Health & Fitness Ctr. of NY, 245 AD2d 687, 687 [1997]).
Initially, the Court rejects the Defendants' argument that they owed no duty to the Plaintiffs given the location where the accident occurred. The Defendants refer to a case where a court dismissed a claim brought by a plaintiff who was injured while attempting to ski across a parking lot, holding that the defendant owed no duty to maintain a snow cover on their parking lot for skiers who would attempt to cross it (see Brousseau v Barton Mines Corp., 220 AD2d 950, 951 [1995]). That case would be more persuasive if the inside of the oval was empty and dark or had some other purpose obviously incompatible with ice skating, but such does not resemble the situation in this action. Patricia Macdonald was not crossing an area obviously incompatible with ice skating. Indeed, the Defendants had placed a bonfire and benches on the inside of the oval and intended for skaters to cross the inside of the oval to reach it, albeit on a pathway. A closed hockey rink was also inside of the oval. The Defendants may ultimately show that they satisfied their duty as landowners, but at the very least a question exists as to whether they owed such a duty with respect to the inside of the oval given their placement of the bonfire and hockey rink there.
There are questions of fact as to whether the Defendants breached their duties with regard to the inside of the oval. As for the duty to warn, it was night when the accident occurred and the Defendants did not maintain the inside of the oval for skating. It is true that the facility's general manager stated that the area was adequately lit for night skating, as well as that the Plaintiffs admitted stopping before stepping off of the oval. Having said that, Patricia Macdonald stated that it was darker towards the inside of the oval, that she was not "able to see exactly what" the difference was between the oval surface and that inside of the oval, and that she did not see the drop off between the oval and the inside of the oval due to the lack of light (Kelly affidavit, Exh. D, pp. 53, 63). Ian Macdonald stated that the lighting was "[v]ery poor" and that he could not see either the drop off or the condition of the ice inside of the oval when he stopped (Kelly affidavit, Exh. G, pg. 16). There were no written or oral warnings for skaters not to cross the inside of the oval, nor was the area fenced off, and the facility's general manager admitted that skaters did cross the inside of the oval to get to the bonfire. There are questions of fact as to whether the condition of the ice inside of the oval was readily observable or, if it was not, that the Defendants satisfied their duty to warn of the condition.
The Defendants also have a duty to maintain the premises in a reasonably safe condition. [*3]Here, the inside of the oval was admittedly not kept up for ice skating. Despite that, the Defendants had placed a bonfire and benches inside of the oval. There are questions as to the amount of lighting on the inside of the oval. It is undisputed that the Defendants did not fence off the inside of the oval, nor did they warn skaters not to attempt to cross it except on the pathway. There were no signs pointing out where the pathway was. Indeed, the Plaintiffs both indicated that they did not see the pathway (Kelly affidavit, Exh. D, pg. 49, 57; Exh. G, pg. 15). Questions of fact exist as to whether the Defendants breached their duty of reasonable care.
The Defendants also appear to argue that Patricia Macdonald assumed the risk of injury when she left the oval. There are questions of fact as to whether those risks were "known, apparent or reasonably foreseeable" given the questions as to the visibility of the conditions inside of the oval and the lack of any warnings (Turcotte v Fell, 68 NY2d 432, 439 [1986]). An ice skater who consents to the risks of skating on a maintained ice surface may not be consenting to the risks of skating on an uneven, soft and unmaintained surface, particularly if such conditions are not readily observable. That question, along with several others, awaits resolution at trial by the factfinder.
Ordered that the Defendants' motion for summary judgment is denied. Any relief requested which is not specifically granted herein is denied, and no motion costs are awarded to any party.
The original of this Decision and Order, together with the papers supplied, are returned to the Plaintiffs' attorneys for filing and service with notice of entry. Those papers consist of the following: notice of motion dated November 2, 2006; affidavit of Matthew J. Kelly, sworn to November 2, 2006, with exhibits; affidavit of Daniel J. Stewart, sworn to February 5, 2007, with exhibits.
Decided:February 28, 2007
James P. Dawson, JSC

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