West Mountain wins round in lawsuit over snowboarder injury

A state appeals court has dismissed a lawsuit brought by the family of a boy who was trapped in a crevice at West Mountain ski area and injured after a snowboarding accident in 2015.

The family of Suffolk County resident Nicholas Festa sued Apex Capital LLC, the mountain’s ownership group, over an incident at the Queensbury ski area that left the 12-year-old Festa with a head injury and other injuries.

At issue was whether the ski area’s operators at the time did enough to warn skiers about or correct a 5-1/2-foot-deep “crevice” in snow in which Festa landed and became trapped after going off a snow pile jump known as a “whale” while snowboarding.

Festa was billed as an experienced snowboarder, having spent three days in a row at the mountain prior to his injury, and West Mountain personnel had put warning signs and poles in that area because of changing conditions. The crevice that opened up was blamed on runoff from changing temperatures, a spring beneath the snow and melting snow from the pile from which Festa sailed.

The court pointed out that the boy’s intent in going over the snow pile was to “catch air,” and that he admitted he knew he could get hurt doing so.

“While the plaintiffs contend that the presence of the crevice was not obvious and the infant plaintiff did not see it, the risks of personal injury caused by terrain and weather conditions are inherent in the sport of snowboarding,” the Appellate Division decision reads.

Lawsuits against ski areas are tough to win because courts typically find that skiers and snowboarders assume risks when hurtling down a snow-covered mountain, but the state Supreme Court in Brooklyn had upheld the lawsuit.

Matthew Kelly, an Albany lawyer who represented Apex Capital, said the boy was trapped for about two hours, and an extrication effort was needed to get him out. The extent of his injuries was not clear, but they were not life-threatening.

The plaintiffs’ counsel, Agoglia, Holland & Agoglia, of Jericho, could seek to appeal to the state Court of Appeals, the state’s highest court. But that ability to appeal is not automatically granted. A call to the firm was not immediately returned Friday afternoon.