Opinion
45-1-2004-0714.
Decided April 6, 2011.
FREDERICK RENCH, ESQ., PLLC, Attorney for Plaintiff, Clifton Park, New York.
LAW OFFICE OF THERESA J. PULEO, Attorneys for Defendant, Albany, New York.
In the early evening of December 18, 1999, the plaintiff, then 13 years old, was operating a motorized four wheel all-terrain vehicle (ATV) in a public park owned by defendant. Plaintiff drove the ATV into an open drainage ditch and fractured his right leg when the ATV overturned. In this action, plaintiff contends that defendant negligently maintained the park in that the ditch was "unlit, unmarked and unguarded". Following discovery, defendant moves for summary judgment dismissing plaintiff's complaint on a General Obligations Law § 9-103 defense. Defendant's motion is supported by the pleadings, plaintiff's 50-H hearing and deposition testimony, and an affidavit from its highway superintendent, Harold Martel (Martel). Briefly, Martel explains that Sugarloaf Pond Park, located within a residential area, is owned and maintained by the Town, has a pond, a grassy area surrounding the pond between 10 feet and 70 feet in width, and public parking lots. In the Summer, the Town cuts the grass and picks up trash. In the Winter, the Town plows snow from its parking lots. According to Martel, the park is open year round to the public from 8:00 a.m. to 10:00 p.m. No permit is needed to use the park, and no admission is charged. The only formal activities the Town conducts in the park are a Summer fishing derby and a Winter carnival. According to Martel, there is no Town employee supervision of the park, but the Town prohibits vehicles, alcoholic beverages, and open containers and requires dogs to be leashed, and these restrictions were posted on signs the Town had installed.
In opposition, plaintiff raises two arguments: first, that § 9-103 does not apply because Sugarloaf Pond Park is a supervised, public park, and second, that even if it applies, defendant fails to factually establish that the park was suitable for ATV riding.
General Obligations Law § 9-103, the so-called recreational use statute, grants property owners immunity from liability for ordinary negligence if a person engaging in certain recreational activities, such as ATV riding, is injured while on the owner's land. Ferres v City of New Rochelle, 68 NY2d 446 (1986); Morales v Coram Materials Corp. , 51 AD3d 86 (2nd Dept 2008), lv denied 14 NY2d 708 (2010).
Contrary to plaintiff's claim, defendant establishes that the park was suitable for ATV riding simply by virtue of plaintiff's use. The park in part consists of an open, grassy area, and it is common knowledge that properties of that type are suited for ATV use. That the Town specifically prohibited ATV use in the park does not negate immunity under § 9-103. Coogan v D'Angelo , 66 AD3d 1465 (4th Dept 2009).
General Obligations Law § 9-103, however, does not apply to supervised municipal parks. Ferres v City of New Rochelle, supra [Suburban, municipal park with a supervisor and 24 employees which included a public parking area, guard house, beach, pavilion, and a place to eat]; Sena v Town of Greenfield, 91 NY2d 611 (1998) [Park included sledding hill, baseball fields and pavilion and was regularly maintained, inspected, and supervised by the Town].
In determining whether a publicly owned facility constitutes a "supervised" park, the character of the land and the role of the municipal land owner in relation to the public's use must be examined. Keppler v Town of Schroon, 267 AD2d 745 (3rd Dept 1999). A municipal facility is generally found to be supervised and thus outside the protection of § 9-103 when the recreational activity causing injury to the plaintiff was encouraged, regulated, or promoted by the municipality. see Town of Greenfield v Sena, supra [Town recreation committee promoted sledding parties in the Town park and the Town groomed and maintained the hill]; Baker v County of Oswego , 77 AD3d 1348 (4th Dept 2010) [County actively advertised, operated, and maintained recreational trail]; Celia v Town of Whitestown , 71 AD3d 1427 (4th Dept 2010) [Town supervised park where sledding was allowed, but two dissenters disagreed, pointing out that in Winter, as opposed to Summer, Town did not assign employees to monitor or supervise park activities or grade or groom trails and only plowed parking lot]; Schiff v State of New York , 31 AD3d 526 (2nd Dept 2006) [State promoted canoeing, constructing steps and canoe slide, issued use permits and regularly maintained launching site]; Keppler v Town of Schroon, supra [Town operated park and maintained docks, fishing piers, athletic fields, beach, provided lifeguards and issued formal usage rules].
However, § 9-103 has provided immunity when the municipality exercised minimal supervision over activities and performed limited maintenance. Myers v State of New York , 11 AD3d 1020 (4th Dept 2004) [State did not encourage or promote hiking, rather it merely allowed it in the park and provided only a parking area and performed occasional maintenance such as removing garbage and debris but had no onsite employees nor did site have any recreational facilities other than hiking paths]; Blair v Newstead Snowseekers, Inc. , 2 AD3d 1286 (4th Dept 2003) [Village did not supervise or maintain bike path during Winter months when snowmobilers used it]; White v City of Troy, 290 AD2d 605 (3rd Dept 2002), lv denied 98 AD2d 602 (2002) [Neighborhood park in residential area which had playground equipment, a basketball court, and a softball field was unsupervised]; Perrott v City of Troy, 261 AD2d 29 (3rd Dept 1999) [City park, which for Summer use had a golf course, tennis courts, ballfields and playgrounds all supervised by City employees, but during Winter was not maintained by City, except that parking lots were plowed and sledding allowed on golf course, entitled to § 9-103 immunity].
Viewing the evidence, as it must, in the light most favorable to plaintiff, the court finds that Sugarloaf Pond Park qualifies as an unsupervised public park, and thus the defendant is entitled to the immunity afforded by § 9-103. The park contains no formal recreational facilities of any kind, and defendant provided no onsite supervision at anytime. The defendant's maintenance was minimal, especially during the Winter when it merely plowed the parking lots. Moreover, defendant did not encourage or promote ATV riding or conduct any other active, formal types of recreation in the park, other than an annual fishing derby and a Winter carnival.
Defendant's motion is granted, and plaintiff's complaint is dismissed, all without costs.
This constitutes the decision and order of the court. The original decision and order is returned to counsel for the defendant. All original motion papers are delivered to the Supreme Court Clerk/County Clerk for filing. Counsel for defendant is not relieved from the applicable provisions of CPLR 2220 relating to filing, entry, and notice of entry of the decision and order.
So Ordered.