Opinion
November 17, 1967
The State appeals from judgments awarding damages resulting from personal injuries sustained in a fall in Thacher State Park. The infant claimants, 15 and 16 years of age respectively, attended a church school picnic in the park with a group of boys and after playing some organized games decided to walk through the woods using a well-defined path which was some three feet wide. About 350 feet along this path, the ground gave way, tumbling them down towards the top of and over a cliff and they fell some 60 feet landing at the bottom of one of the cliffs, causing them to sustain serious injuries. At the park entrances were signs indicating that "hiking" was provided in the park, and it is conceded that there were no signs warning the users of the path, that there was an unguarded cliff nearby, and it further appears that there was no barricade to prevent one from falling over the cliff. In addition the presence of woods and brush on the sides of the path prevented users of the path from seeing the edge of the cliff. The park superintendent testified that the path between the picnic area and the cliffs existed prior to the accident, that he had walked over the path in question following the accident and that the user of the path would not be able to see the edge of the cliff because of the woods and brush. The record substantiates the court's finding that the claimants were invitees and that the accident occurred on State park property. The court's determination that the claimants were free from contributory negligence and that the State was negligent in failing to warn of the danger presented by the cliffs, together with the lack of guardrails or safety measures, was not against the weight of the evidence and should be sustained ( Harran v. State of New York, 9 A.D.2d 31; Malvaso v. State of New York, 15 Misc.2d 585, affd. 10 A.D.2d 663). The act of the claimants in using the well-defined path was not the deviation which precluded recovery in O'Brien v. State of New York ( 270 App. Div. 877) for here they commenced and ended their hike on a well-defined path. The condition was readily forseeable and the failure of the State to erect warning signs and guardrails was a proximate cause of the accident ( Harran v. State of New York, supra, p. 32). Judgments affirmed, with costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J. [ 50 Misc.2d 912.]