Judge Mae D’Agostino
Rich and her family visited the Rocking Horse Ranch resort in Feb. 2010. Ranch activities include snow tubing. Rich took several trips down the snow tube hill with her daughter before switching to a “single” tube. A Ranch employee allegedly “flung” her tube down the hill. Rich alleged injury after she collided with a hay bale barrier on the hill’s deceleration area. District court denied the Ranch and its codefendants summary judgment dismissing Rich’s lawsuit seeking damages for pain and suffering, and loss of consortium. Based on the record and the varying accounts of the accident by the parties and witnesses, a fact issue existed requiring trial. The case did not fall within the exception, articulated by the Second Circuit in Jeffreys v. City of New York, to the general rule that the court should not weigh evidence or assess witness credibility. Rich’s testimony was neither contrary nor incomplete. Nor was her testimony contradicted by reliable defense witnesses. Viewed in the light most favorable to Rich, their were clear factual issues for a jury’s resolution, including whether Ranch attendants at the top of the hill unreasonably increased the risk of Rich’s injury.