Opinion
No. 2014–0927.
03-28-2017
Julie A. CHAMBERLAIN and Klaus C. Chamberlain, Plaintiffs, v. TOWN OF LANSING and LBH Archery Club and Martin J. Jones, II, Individually, and as President of LBH Archery Club, Defendants.
The Caponera Law Firm, P.C. by Victor A. Caponera, Jr., Esq., Albany, Attorney for Plaintiffs. Edward E. Kopko, Esq., Ithaca, Attorney for Defendants Martin J. Jones, II and LBH Archery Club. Lynch Law Office, PLLC, by Ryan L. Abel, Esq., Syracuse, Attorneys for Defendant Town of Lansing.
The Caponera Law Firm, P.C. by Victor A. Caponera, Jr., Esq., Albany, Attorney for Plaintiffs.
Edward E. Kopko, Esq., Ithaca, Attorney for Defendants Martin J. Jones, II and LBH Archery Club.
Lynch Law Office, PLLC, by Ryan L. Abel, Esq., Syracuse, Attorneys for Defendant Town of Lansing.
PHILLIP R. RUMSEY, J.
This is an action to recover for personal injuries sustained by Julie Chamberlain (herein plaintiff; her husband sues derivatively) on April 27, 2014, when she fell on real property owned by defendant Town of Lansing while walking along an archery course during an event sponsored by defendant Lansing Bowhunters Club (LBH). Defendant Martin J. Jones, II (Jones) is president of LBH. Plaintiffs each paid LBH $25.00 to participate in the archery shoot, which consisted of participants walking through the woods on a course established by Jones to shoot at 30 three-dimensional targets resembling various game animals. Plaintiffs allege that Julie Chamberlain fell and broke her ankle when her foot became trapped between two wooden pallets that had been laid on the ground on the path in a depressed area where water and mud had accumulated.
Plaintiffs sued LBH, a/k/a the Lansing Bow Hunters or the Lansing Archery Club, which is an unincorporated association formed in approximately the 1970s. Lansing Bow Hunters, Inc. (LBI) was formed as a domestic not-for-profit corporation on June 14, 1978. The records of the New York Department of State show that LBI is presently an active corporation (see https://www.dos.ny.gov/corps/bus_entity_search.html, last accessed March 28, 2017). By decision and order dated May 13, 2015, this court held that LBI is not the type of corporation described in Internal Revenue Code § 501(c)(3) and, accordingly, that Jones was not entitled to the protection of NPCL § 720–a. Plaintiffs have not amended the summons and complaint to add LBI as a defendant. All parties have proceeded on the basis that the archery shoot was conducted by LBH.
It is undisputed that the Town of Lansing owns the real property where the archery shoot took place. In support of its motion for summary judgment, the Town of Lansing has submitted proof showing that it did not create the condition by placing the pallets and that it did not have actual notice that pallets had been placed where archery shoot participants would be expected to walk. The property was used by the Town Highway Department, and the Town of Lansing submitted testimony from two individuals who each had long-term experience with the Highway Department. Jack French, Jr. testified to his long tenure with the Highway Department that began in 1977, when he became an employee at age 19, and continued after he became Town Highway Superintendent in 2002, until he retired in 2015 (see Affirmation of Ryan L. Abel, Esq. dated December 27, 2016 [Abel Affirmation], Exhibit K [Transcript of Examination Before Trial of Jack French, Jr.; herein French EBT Transcript], pp. 4–8). French testified that throughout his employment with the Town, he had been familiar with the property where the archery shoot took place. He testified specifically that, during that time: (1) he never saw wooden pallets on the property (id., p. 34); (2) Town employees never brought wooden pallets onto the property (id., pp. 34–36); (3) he was not aware that wooden pallets were used on the archery course (id., p. 35); and (4) he was unaware of any specific activities that may have been conducted on the property by LBH and never inspected any portion of the property that may have been used by LBH (id., pp. 24, 31–34, 36–37, 42–45, 47–48). His testimony was largely corroborated by Charles Purcell, who stated that he was Deputy Highway Superintendent in April 2014, when plaintiff was injured, and that in 2015 he was elected to succeed French as Highway Superintendent (see Affidavit of Charles Purcell, sworn to December 23, 2016 [Purcell Affidavit], ¶ 1). He further stated that it was not the Town's practice to bring wooden pallets onto the property or to store them there, and that he was unaware that any had been brought onto the property by any third parties on or before April 27, 2014 (id., ¶¶ 3–5).
"Constructive notice requires a showing that the condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit a defendant to discover it and take corrective action" (Hagin v. Sears, Roebuck & Co., 61 AD3d 1264, 1266 [2009] [quotation and citation omitted] ). To sustain its burden of showing that it had no constructive notice of the allegedly defective condition, a property owner seeking summary judgment must offer some evidence of when the property was last inspected prior to the accident (id.; see also Dylan P. v. Webster Place Assoc., L.P., 132 AD3d 537, 538 [2015], affd. 27 NY3d 1055 [2016] ; Arzola v. Boston Props. Ltd. Partnership, 63 AD3d 655 [2009] ; 1A N.Y. PJI 3d 2:90 at 628 [2017], citing Arzola, Dylan P., and Hagin). The Town of Lansing failed to submit any evidence showing that it had inspected the property prior to the accident; indeed, as previously noted, French testified that he was unaware of any specific activities that may have been conducted on the property by LBH and never inspected any portion of the property that may have been used by LBH. Inasmuch as the Town of Lansing failed to make a prima facie showing that it lacked constructive notice of the condition, regardless of its assertion that plaintiff is unable to prove when the pallets were placed, its motion for summary judgment must be denied, unless the affirmative defense that it asserts precludes plaintiffs' claims.
"Defendant asserted General Obligations Law § 9–103 as an affirmative defense. That statute grants immunity for ordinary negligence to landowners who permit members of the public to use their property for specified recreational activities without charge (see Bragg v. Genesee County Agric. Socy., 84 N.Y.2d 544, 546–547 [1994] ), including hiking" (King v. Cornell Univ., 41 Misc.3d 451, 454 [2013] [Rumsey, J.], affd. 119 AD3d 1195 [2014] ). " ‘Hiking’ has been described as ‘traveling through the woods on foot’ (Sega v. State of New York, 60 N.Y.2d 183, 193 [1983] ) and as ‘traversing land "by foot or snowshoe for the purpose of pleasure or exercise" ‘ (Cometti v. Hunter Mtn. Festivals, 241 A.D.2d 896, 897 [1997], quoting 6 NYCRR 197.2 [a] )" (King v. Cornell Univ., 119 AD3d 1196 [2014] ).
It is undisputed that plaintiff was traveling through the woods on foot for a recreational purpose when she fell. She testified that she has been an archer for 24 years and that she had participated in approximately 25 archery shoots similar to the one during which she was injured (see Abel Affirmation, Exhibit H [Transcript of Examinations Before Trial of Julie A. Chamberlain and Klaus C. Chamberlain; herein Plaintiffs EBT Transcript], p. 3). She described her participation in such archery shoots as walking on trails in the woods, or "wilderness," over tree stumps and through streams (id., p. 4). On the day she was injured, she was wearing Timberland hiking boots, wearing a quiver on her waistband, and carrying her bow in her hand while walking over the course through the woods (id., pp. 5–6, 33–34). She also testified that she was not shooting when she fell (id., p. 36). Klaus Chamberlain similarly described the archery shoot as an activity that involves walking on a muddy trail through the woods (id., pp. 64–65) and confirmed that he was also wearing hiking boots (id ., p. 73). He testified that he had participated in an archery shoot on the same course the preceding year (id., pp. 72–73), and that the course was suitable for hiking "after they took care of [it]" (id., p. 74). The fact that plaintiff was walking in connection with another activity, i.e., archery, is insufficient to take her admitted conduct—walking through woods suited for that purpose—outside the definition of hiking (see Cometti, 241 A.D.2d at 898 ["[a]lthough plaintiff may have gone to Hunter Mountain that afternoon for a reason other than hiking, it is evident that she was hiking when she was injured"]; see also Sega, 60 N.Y.2d at 193 [claims of plaintiff who was injured while sitting and resting were barred by General Obligations Law § 9–103 because such acts were sufficiently related to traveling through the woods on foot to justify the conclusion that she was "hiking" when injured] ).
Plaintiff provided similar testimony regarding the archery shoot at her General Municipal § 50–h hearing (see Abel Affirmation, Exhibit B [Transcript of 50–h Hearing of Julie A. Chamberlain, pp. 15–17, 19–20).
Klaus Chamberlain also provided similar testimony regarding the archery shoot at his General Municipal § 50–h hearing (see Abel Affirmation, Exhibit B [Transcript of 50–h Hearing of Claus [sic] C. Chamberlain, pp. 5, 7–8). In addition, Purcell averred that the property has terrain generally suitable for hiking (see Purcell Affidavit, ¶ 9).
It is also undisputed that the Town of Lansing did not receive a fee for permitting plaintiff to participate in the archery shoot, either directly or indirectly. The Town specifically denied that it charged admission for the archery shoot or that it received any compensation for LBH, or any representative thereof (Purcell Affidavit, ¶ 8). Jones, who organized the archery shoot for LBH, testified that it charged $25 per participant, that approximately $2,500 was collected and used to pay LBH's expenses, and that payments were made directly to LBH, not to the Town of Lansing (see Abel Affirmation, Exhibit J [Transcript of Examination Before Trial of Martin J. Jones, II; herein Jones EBT Transcript], pp. 18–20, 41–42, 49). Plaintiffs admit that their entry fees were paid to LBH (Plaintiffs EBT Transcript, pp. 5, 32, 84–85). Moreover, there is no evidence showing that the Town of Lansing received any rent or other compensation for LBH's use of the property.
Payment of a fee to an organization conducting an event on land owned by another is not compensation to the landowner that would deprive the landowner of the protection of GOL § 9–103 (see Ferland v. GMO Renewable Resources LLC, 105 AD3d 1158, 1161 [2013] ; Bellone v. J.R. Shooting Preserve, 192 A.D.2d 633 [1993] ).
There is evidence that the Lansing Town Board adopted resolutions permitting LBH to use the property for two one-year periods, from July 1978 to July 1979 and from August 1979 to August 1980 (see Affirmation of Victor A. Caponera, Jr., Esq. dated January 6, 2017, Exhibits 1–2). There is also proof that the Town of Lansing and LBH entered into a written lease for the property used to conduct archery shoots for the term from April 1, 1994 through March 31, 1995. Notably, there is no proof of any formal agreement between the Town of Lansing and LBH after expiration of the written lease in 1995—19 years before the accident. It is also significant that, in any event, neither the resolutions nor the lease required LBH to pay any monetary compensation to the Town of Lansing for use of the property.
Based on the foregoing, General Obligations Law § 9–103 bars plaintiffs' claims against the Town of Lansing and the Town of Lansing's motion for summary judgment dismissing the complaint against it must be granted.
Defendants LBH and Jones assert that they did not create the condition, nor have actual or constructive notice thereof, based on the testimony of Jones, who stated that (1) he set up the archery course in his capacity as range coordinator for LBH; (2) he did not personally place the pallets; (3) "we," presumably referring to LBH and its members, did not place the pallets; (4) he did not know who placed the pallets; (5) he did not notice the pallets prior to the start of the archery shoot; and (6) LBH did not conduct an inspection of the course prior to starting the shoot (see Jones EBT Transcript, pp. 9–10, 18–19, 25, 27–28, 30–34, 40).
Jones's allegations are minimally sufficient to make a prima facie showing that LBH did not create the condition nor have actual notice thereof. However, plaintiffs' testimony that individuals, presumed to be LBH members, were placing pallets on the course during the shoot because participants had complained of muddy conditions (see Plaintiffs EBT Transcript, pp. 67 69–70 78–84) is adequate to allow the finder of fact to infer that the pallets had been placed by LBH members. With respect to constructive notice, Jones's admission that LBH did not inspect the course prior to starting the event precludes LBH and Jones from making a prima facie showing that they lacked constructive notice of the condition, regardless of their assertion that plaintiff is unable to prove when the pallets were placed. Inasmuch as there are issues of fact with respect to creation of the defect and whether LBH had actual notice thereof, and in light of the failure of LBH and Jones to make a prima facie showing that they lacked constructive notice of the defective condition, their motion for summary judgment must be denied, unless the affirmative defense that they assert precludes plaintiffs' claims.
In that regard, LBH and Jones assert that plaintiffs' claims are barred by the doctrine of primary assumption of the risk.
"More particularly, primary assumption of the risk applies when a consenting participant in a qualified activity "is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks" (Bukowski v. Clarkson Univ., 19 NY3d 353, 356 [2012] [internal quotation marks and citation omitted] ). A person who chooses to engage in such an activity "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan, 90 N.Y.2d at 484 ). As a result, participants may be held to have consented to those injury-prone risks that are "known, apparent or reasonably foreseeable" (Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657 [1989] [internal quotation marks and citation omitted] ). The duty owed in these situations is "a duty to exercise care to make the conditions as safe as they appear to be" (Turcotte, 68 N.Y.2d at 439 ). On the other hand, participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced (see Morgan, 90 N.Y.2d at 485 ).
"Since the adoption of CPLR 1411, we have generally restricted the concept of assumption of the risk to particular athletic and recreative activities in recognition that such pursuits have "enormous social value" even while they may "involve significantly heightened risks" (Trupia, 14 NY3d at 395 ). Hence, the continued application of the doctrine "facilitate[s] free and vigorous participation in athletic activities" (Benitez, 73 N.Y.2d at 657 ), and fosters these socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from "potentially crushing liability" (Bukowski, 19 NY3d at 358 ). Custodi v. Town of Amherst, 20 NY3d 83, 88 (2012).
It is undisputed that plaintiff was engaged at a recreational activity, i.e., archery, on a course established for that purpose on terrain that is suitable for hiking. Whether plaintiffs' claims are barred by the doctrine of the primary assumption of the risk turns, then, on whether the risk of falling while traversing the pallets was a risk inherent in the activity that was open and obvious to plaintiff, in light of her skill and experience (see Maddox v. City of New York, 66 N.Y.2d 270, 277–278 [1985] ). The risks assumed when participating in a recreational activity include open and obvious physical conditions of the facility where the activity takes place (id.; Sykes v. County of Erie, 94 N.Y.2d 912 [2000] ; Kirby v. Drumlins, Inc., 145 AD3d 1561 [2016] ; Wilck v. Country Pointe at Dix Hills Homeowners Assn., Inc., 111 AD3d 822 [2013] ; Zachary G. v. Young Israel of Woodmere, 95 AD3d 946 [2012], lv denied 20 NY3d 857 [2013] ; Mangan v. Engineer's Country Club, 79 AD3d 706 [2010] ; Bouchard v. Smiley Bros., 258 A.D.2d 548 [1999], lv denied 93 N.Y.2d 815 [1999] ).
Plaintiff's own testimony establishes that she had the skill and experience to appreciate the general risk of tripping and falling on the course and the specific risk of falling while walking on pallets. She testified that she is an experienced archer, who has participated in approximately 25 archery shoots similar to the one where she was injured, that she was aware that participating in such activities exposed her to the risk of falling and that she nonetheless decided to participate (see Plaintiffs EBT Transcript, pp. 3–4, 10). She further testified extensively about the specific risk of walking on pallets placed on the ground, stating that: (1) she had prior personal experience with pallets; (2) she had a friend who was hurt on a pallet; (3) based on her prior experience and knowledge, a person must be careful when walking on pallets that are placed on the ground because they may shift; and (4) despite her prior knowledge and experience, neither she nor Klaus Chamberlain made any attempt to ascertain whether the pallets at issue were safely placed before she stepped on them (id., pp. 18–20, 26). Thus, plaintiff's own testimony establishes, as a matter of law, that the risk of falling on the pallets located on the archery course was an open and obvious condition that should have been apparent to a person with plaintiff's level of skill and experience. Accordingly, the doctrine of the primary assumption of the risk bars plaintiffs' claims.
Based on the foregoing:
1. The motion made by defendant Town of Lansing is granted, and the complaint against it is dismissed, with prejudice.
2. The motion made by defendants LBH Archery Club and Martin J. Jones, II is granted, and the complaint against them is dismissed, with prejudice.
This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry (see CPLR 5513 ).
HON. PHILLIP R. RUMSEY
Supreme Court Justice
ENTER
The following documents were filed with the Clerk of the County of Tompkins:
Notice of motion dated December 27, 2016.
Affirmation of Ryan L. Abel, Esq. dated December 27, 2016, with Exhibits A–L.
Affidavit of Charles Purcell, sworn to December 23, 2016.
Undated notice of motion filed December 29, 2016.
Affirmation of Edward E. Kopko dated December 29, 2016, with Exhibits 1–12.
Affirmation in opposition of Victor A. Caponera, Jr., Esq. dated January 6, 2017, with Exhibits 1–4.
Reply affirmation of Ryan L. Abel, Esq. dated January 13, 2017.
Reply affirmation of Edward E. Kopko dated January 18, 2017.
Original Decision and Order dated March 28, 2017.