After spending some time watching the bobsled runs, Mary and her friends decided to take a ride. They paid the fee and signed forms, which none of them read, assuming any risk of injury resulting from any cause other than the negligence of the operator. Then they donned helmets and boarded the sleds.
On the way down the run and in the middle of the last curve Mary’s sled hit “a cut or gash in the wall” variously estimated to have been anywhere from 3 to 6 feet long, 8 inches to 2 feet wide and 3 to 6 inches deep. As a result of the severe jolt on impact, Mary was injured.
Mary sued the operator claiming that it was negligent in the manner in which its employees had maintained the run. The trial court granted judgment* to Mary, summarily, pointing out that there really existed no factual disputes concerning the condition of the run and other relevant factors.
The Court concluded from the affidavits and other documents presented to it that the area operator had clearly known of the condition of the bobsled run, as some of its employees had traversed it prior to Mary’s fateful journey, and that they had discovered the gash at the time.
Moreover, said the Court, the dangerous condition of the run had been discovered by these employees while there still existed ample time in which to close the run so that Mary’s injuries would have been avoided.
The area operator argued that Mary had assumed the risks inherent in bobsledding and therefore could not complain of injuries resulting from the sport. But the Court concluded that, as a matter of law, an unsafe condition on a bobsled run, of which Mary had absolutely no knowledge, could not be considered one of the risks inherent in the sport.
Moreover, the waiver signed by Mary noted only that she assumed liability for injuries resulting from these inherent dangers or from any cause “except such as might arise from the negligence of the (operator), its agents, servants or employees.” Since the Court had already concluded that the operator had been negligent, this waiver could be of no avail.
On appeal by the area operator, the trial court’s determination was reversed. First said the Appeals Court, it cannot be said as a matter of law that the gash in the ice constituted negligence on the part of the operator. To determine this question expert opinion as to the proper maintenance and condition of a run is necessary, and none was offered here.
Second, the Court concluded that whether or not Mary assumed the risk of injury, such as she sustained, was a question which also had to go back for trial. The court further implied that the determination of this question also required expert testimony, as to exactly what the risks inherent in bobsledding are.
*Kaiser v. State, 55 M.2d 576, 286 N.Y.S.2d 874 (Ct. Cl. 1967), rev. 30 A.D.2d 482, 294 N.Y.S.2d 410 (3d Dept. 1968), app. dis. 23 N.Y.2d 866 (1969).
