In the Fall 1970 issue we discussed the New York case of a novice skier who rented all of his equipment from a ski area operator and was injured when he fell and his boots failed to separate from his skis. The skier, as the plaintiff, was successful at the trial but lost on the appeal by the area operator. A recent decision by the highest court of New York, however, has reinstated the skier’s action.
In that column we noted that the plaintiff had gone to the defendant’s area for his first skiing experience, that he rented all of his equipment from the defendant and that he “was fastened into his rented boots and they, in turn,” were fastened “to his rented skis.”
In his suit against the area operator, the skier claimed that he had been supplied with defective equipment. His “expert” witness, however, according to the first appeals court, had “no apparent acquaintance, vicarious or otherwise, with the type of equipment in question.” The area’s manager, on the other hand, “was familiar with and had purchased the equipment” and in his opinion “no defect could have caused the accident.”
Though the first appellate court held that the testimony of the skier’s expert was not sufficient to create an inference of negligence on the part of the operator, the decision was subsequently reversed by New York’s high court, which held that the skier’s expert, even though he failed to “develop the technical foundation for his opinion” had given evidence sufficient to establish the plaintiff’s case.
The skier’s expert was an engineer and an experienced skier; he was, according to testimony, “often involved in investigating and reconstructing ski accidents” and “was currently writing a book on the safe design and use of recreational equipment, including ski bindings.” At the trial he testified only that a man of the plaintiff’s height and weight who fell in the manner in which the plaintiff claimed to have fallen, would transmit a force “in excess of 325 foot pounds.” This tied in with other testimony “that if the toe release is functioning it should release at 75 or 100 foot pounds.”
That 325 foot pounds were created upon a toe release which should release at 75 or 100 pounds sufficiently demonstrated, the high court stated, that “the failure of the binding to release the foot and the resulting injuries may be attributed to a defect in the apparatus.” The court also noted that the plaintiff’s “expert need not give technical reasons or bases for his opinion on direct examination,” and that this was up to the defendant to do on cross-examination, which the area operator apparently chose not to do. The case was consequently sent back for further proceedings.
Columnist Stephen Fine is a partner in the New York law firm Lubell, Lubell, Fine & Schaap.
