97 A.D.2d 46 | N.Y. App. Div. | 1983
OPINION OF THE COURT
In what appears to be a case of first impression in this State, we are called upon today to determine whether a sponsor of an athletic event, absent control, may be held liable in negligence for an injury to a participant. The underlying action is to recover for personal injury and property damage sustained in a skiing accident at West Mountain on January 8, 1980 during a slalom race advertised as the “Miller Ski Club Slalom”. Joined as defendants with West Mountain, the ski slope operator, are Miller Brewing Company (hereinafter Miller) and J-Mar Beer Distributors, Inc. (hereinafter- J-Mar), a Miller beer distributor.
Plaintiff, an experienced recreational skier, participated as a member of the Albany Singles Ski Club team and was injured during her second official run on the course when she lost control and struck the concrete base of a ski tower. In her complaint, plaintiff asserted Miller was negligent in failing to properly arrange the race course and in failing to warn of the dangers inherent in slalom ski racing. In its answer, Miller denied both sponsorship and that it played any part in the operation of the event. After depositions, Special Term granted a motion for summary judgment dismissing the complaint against Miller. Special Term assumed, arguendo, that sponsorship by Miller was established and concluded that sponsorship alone, absent “control over the design of the course, the supervision of the race, or the qualifications of entrants”, was insufficient to impose liability for injuries sustained by a participant. This appeal by plaintiff ensued.
There should be an affirmance. While there may be serious questions involved in this case as to whether Miller, as it contends, was unaware of the subject event and whether J-Mar had authority from Miller to sponsor the event, we accept Special Term’s conclusion that mere spon
In her affidavit in opposition to Miller’s motion for summary judgment, plaintiff stated she first learned of the Miller-sponsored racing series when she read a flyer advertising the event and a letter sent to her club from the sales director of West Mountain, which described the series as open to all skiers regardless of ability. Plaintiff stated this information allayed her apprehension and induced her to enter the race. She further believed Miller would be in control of and supervise the race. Beyond the contention of inducement, plaintiff emphasizes Miller would benefit financially from the promotional aspect of the event. From these twin factors of inducement and financial benefit, plaintiff urges the imposition of a duty on the part of Miller to ensure the safety of the race.
To support her argument, plaintiff relies on a statement from the Court of Claims in Saari v State of New York (203 Misc 859, 866, affd 282 App Div 526) that “one who
As plaintiff readily acknowledges, her theory of negligence is a novel one and effectively entails the creation of a new legal obligation. While a court might impose a duty where none existed before, extreme care must always be exercised (Pulka v Edelman, 40 NY2d 781, 786; DeAngelis v Lutheran Med. Center, 84 AD2d 17, 22, affd 58 NY2d 1053; see Moore v Shah, 90 AD2d 389). An important criterion is whether the realities of everyday experience demonstrate that the party to be made responsible could have prevented the negligent conduct (Pulka v Edelman, supra, p 785). Here, neither Miller nor its agent J-Mar was in a position to supervise West Mountain’s running of the race, since neither party enjoyed the necessary expertise and the operation of the slope was under heavy State regulation (Safety in Skiing Act [Labor Law, § 865 et seq.f, 12 NYCRR part 54). Moreover, the record demonstrates that West Mountain, not Miller, actually designed, supervised and controlled the event. In his deposition before trial, the president and general manager of West Mountain, Michael Brandt, stated there was no direct oral or written communication with Miller concerning the racing series, and that the design of the slope and supervision and control over the race was handled exclusively by West Mountain employees. Nowhere is this refuted in the record. Under these circumstances, it would be unreasonable
Plaintiff argues that Miller was negligent because of its failure to assume control over the event. The duty to control the conduct of others revolves around a special relationship between defendant, the person whose conduct he is required to control, and the person exposed to the harm (Pulka v Edelman, supra, pp 783-784). A realistic assessment of the relations between plaintiff, West Mountain and Miller does not give rise to any such special relationship, since there was no reasonable opportunity on the part of Miller to control the tort-feasor. Here, as stated, Miller was not capable of directing or controlling the racing series. Moreover, as a practical matter, to extend legal liability over a sponsor of an athletic event would prove an undue expansion of the sponsorship relationship, the net result of which would be to discourage further participation. While it cannot seriously be disputed that a sponsor benefits by the promotion of its product, financial gain does not of itself give rise to a legal obligation.
In sum, since Miller neither owned nor controlled the operation of the ski slope, and was not realistically in a position to assume such control, the existence of a duty has not been established (see Ossmer v Bates, 97 AD2d 871). It follows that summary judgment in Miller’s favor was properly granted as a matter of law. The same result is compelled despite the fact that injury to plaintiff may have been foreseeable, since foreseeability alone is not sufficient to establish liability when, as here, there is no showing of any duty owed plaintiff (Moore v Shah, 90 AD2d 389, 390, supra; see Lafferty v Manhasset Med. Center Hosp., 54 NY2d 277, 280).
The order and judgment should be affirmed, without costs.
Mahoney, P. J., Main, Casey and Yesawich, Jr., JJ., concur.
Order and judgment affirmed, without costs.