Background
Stephanie Hurst and her daughter went snow tubing at a New York State park where Hurst had participated in the activity on multiple prior occasions. On her second run — taken together with her daughter — the snow tube veered left and struck a pile of snow at the base of the hill, adjacent to a paved turnaround circle used for vehicular traffic. The snow piles had been created by plowing of that turnaround area. Hurst became airborne upon impact and landed on the pavement, sustaining injuries.
Hurst and her husband filed a claim in the Court of Claims against the State. Following a bifurcated bench trial on liability, the Court of Claims dismissed the claim on two independent grounds: (1) Hurst had assumed the risk under the primary assumption of risk doctrine, and (2) the State was immune under General Obligations Law § 9-103 (GOL § 9-103), which provides immunity to landowners who make their land available for recreational use without charge.
The Court’s Holding
The Fourth Department unanimously affirmed. On primary assumption of risk — the doctrine under which a voluntary participant in a sport or recreational activity consents to risks “inherent in and aris[ing] out of the nature of the sport generally” (Katleski v Cazenovia Golf Club, Inc., 44 NY3d 212, 218 [2025]) — the court held that the Court of Claims’ factual finding was supported by a fair interpretation of the evidence. The court emphasized that a participant need not foresee “the exact manner in which [their] injury occurred, so long as [they are] aware of the potential for injury of the mechanism from which the injury results” (Grady v Chenango Val. Cent. Sch. Dist., 40 NY3d 89, 95 [2023]).
The court rejected claimants’ argument that the snow piles unreasonably enhanced the inherent risk. Under the doctrine, a participant does not assume “risks that are concealed or unreasonably enhanced” (Custodi v Town of Amherst, 20 NY3d 83, 88 [2012]). However, the snow piles were an open and obvious condition that did not rise to the level of an unreasonably enhanced risk. Because the court resolved the case on assumption of risk grounds, it did not separately address the GOL § 9-103 immunity issue.
Key Takeaways
- Primary assumption of risk bars recovery when a recreational participant sustains injury from a risk inherently foreseeable from the activity, even where the precise mechanism of injury was unexpected.
- Snow piles at the base of a tubing hill, created by plowing and plainly visible, qualify as an open and obvious condition that does not unreasonably enhance the inherent risk of snow tubing.
- GOL § 9-103 provides an independent statutory ground for immunity to New York landowners who open their property for recreational use without charge.
Why It Matters
This decision reinforces the breadth of primary assumption of risk as a liability bar in New York recreational injury cases. The doctrine operates as a complete defense rather than a comparative fault mechanism, continuing to protect governmental and private landowners from claims arising from conditions that are either inherent in the activity or open and obvious. For practitioners representing injured recreational users, the critical inquiry is whether the condition was “concealed or unreasonably enhanced,” not merely whether it was dangerous.
For state and municipal counsel, the availability of GOL § 9-103 as a parallel shield remains significant. Litigants and risk managers should ensure that access remains free-of-charge to preserve the statutory immunity.