| Haider v Zadrozny |
| 2009 NY Slip Op 02513 [61 AD3d 1077] |
| April 2, 2009 |
| Appellate Division, Third Department |
| Steffen John Haider, Appellant, v Benedykt J. Zadrozny et al.,Appellants, and Kathy A. Zinssar, Respondent. |
—[*1] Boeggeman, George & Corde, P.C., Albany (Cynthia Dolan of counsel), for Benedykt J.Zadrozny and another, appellants. Pennock, Breedlove & Noll, L.L.P., Clifton Park (Carrie M. Noll of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (Williams, J.), entered December 13,2007 in Saratoga County, which granted defendant Kathy A. Zinssar's motion for summaryjudgment dismissing the complaint and cross claim against her.
While riding at night on a saucer attached by a water ski tow rope to a snowmobile driven bydefendant Benedykt J. Zadrozny Jr. and owned by defendant Benedykt J. Zadrozny Sr.(hereinafter collectively referred to as defendants), plaintiff was struck and injured by asnowmobile driven by defendant Kathy A. Zinssar. Alleging that Zinssar had been negligent indriving her snowmobile too fast, passing too close to defendants' snowmobile, and failing toobserve and avoid plaintiff, plaintiff commenced this action. When Zinssar moved for summaryjudgment dismissing the complaint and defendants' cross claim against her, Supreme Courtgranted the motion. Plaintiff and defendants now appeal.[*2]
Viewing the evidence most favorably to the nonmovingparties (see Secore v Allen, 27AD3d 825, 828-829 [2006]; Greco v Boyce, 262 AD2d 734, 734 [1999]), we findtriable questions of fact as to whether Zinssar could have observed and avoided plaintiff.Although Zinssar was not required to foresee that defendants would violate the law by using arope to tow someone behind their snowmobile (see PRHPL 25.03 [8]), there is evidencein the record that there was sufficient illumination from the moon and snowmobile headlampsfor the drivers to be able to see 200 or more yards ahead. Like the operator of a motor vehicle,Zinssar "was bound to see what by the proper use of her senses she might have seen"(Weigand v United Traction Co., 221 NY 39, 42 [1917]; see Fernet v Morvillo, 30 AD3d670, 672 [2006]). Thus, if the circumstances were such that Zinssar should have observedplaintiff, then the accident would be a reasonably foreseeable risk and she would have had a dutyto avoid striking him, if it were possible to do so (see e.g. Di Ponzio v Riordan, 89 NY2d578, 583 [1997]; Kemper v Arnow,18 AD3d 939, 940-941 [2005], lv denied 5 NY3d 708 [2005]). Accordingly, theconflicting evidence as to the parties' respective speeds, angles of approach, proximity and sightdistances immediately before the accident present questions of fact as to whether Zinssar couldhave seen plaintiff and avoided him.
As for Zinssar's contention that plaintiff's unexpected appearance in her path presented anemergency, "[s]ummary judgment in an emergency case is only proper where there are no factualquestions concerning the reasonableness of the driver's actions under the circumstances orwhether the driver could have done something to avoid the collision" (Quinones v Community Action Commn. toHelp the Economy, Inc., 46 AD3d 1326, 1326 [2007]; see Caristo v Sanzone,96 NY2d 172, 174-175 [2001]; Schlanger v Doe, 53 AD3d 827, 828 [2008]; PJI 2:14). Here, thedisputed factual issues bear on whether Zinssar's conduct contributed to the emergency andwhether she reacted as a reasonable person would under the circumstances (see Aloi v County of Tompkins, 52AD3d 1092, 1094 [2008]).
Finally, while it is true that the doctrine of primary assumption of risk completely barsrecovery to one who is injured during his or her voluntary participation in a sport or recreationalactivity such as riding upon or being towed behind a snowmobile, "participants do not consent toconduct that is reckless, intentional or so negligent as to create an unreasonably increased risk"(Pantalone v Talcott, 52 AD3d1148, 1149 [2008]; see Huneau vMaple Ski Ridge, Inc., 17 AD3d 848, 849 [2005]; Connor v Tee Bar Corp., 302AD2d 729, 730 [2003]). Again, the disputed factual issues bear on whether Zinssar was drivingin a manner that unreasonably increased the risk of injury to plaintiff, and summary judgmentshould have been denied (see Morgan v Ski Roundtop, 290 AD2d 618, 620 [2002];Rios v Town of Colonie, 256 AD2d 900, 901 [1998]).
Peters, J.P., Lathinen, Kane and Stein, JJ., concur. Ordered that the order is reversed, on thelaw, with one bill of costs, and motion denied.