Opinion
2014-07-17
Steven KING et al., as Coadministrators of the Estate of Khalil Jamal Godfrey King, Deceased, Respondents, v. CORNELL UNIVERSITY, Appellant.
Nelson E. Roth, Cornell University, Ithaca, for appellant. Leland T. Williams, Rochester, for respondents.
Nelson E. Roth, Cornell University, Ithaca, for appellant. Leland T. Williams, Rochester, for respondents.
Before: PETERS, P.J., ROSE, EGAN JR., LYNCH and DEVINE, JJ.
LYNCH, J.
Appeal from an order of the Supreme Court (Rumsey, J.), entered August 16, 2013 in Tompkins County, which denied defendant's motion for summary judgment dismissing the complaint.
On August 28, 2010, decedent, a 19–year–old sophomore at defendant, fell to his death in a gorge on campus. Plaintiffs, who are decedent's parents, commenced this action against defendant to recover damages for negligence. Defendant answered and, after limited discovery, moved for summary judgment dismissing the complaint, arguing that it was immune from liability pursuant to General Obligations Law § 9–103 and, alternatively, not negligent as a matter of law. Recognizing that decedent's status as a student does not preclude application of the statute ( see Weller v. Colleges of the Senecas, 217 A.D.2d 280, 285, 635 N.Y.S.2d 990 [1995] ), Supreme Court denied the motion in a thorough, well written decision (41 Misc.3d 451, 973 N.Y.S.2d 534 [2013] ). Defendant now appeals.
We affirm. The circumstances leading up to decedent's tragic fall, as described by his classmate, Damani Carter, are not disputed. At approximately 3:30 a.m., the two students were walking to a fraternity house on campus. Carter described decedent as intoxicated, and others indicated that he may have smoked marihuana earlier in the evening. As they walked, decedent motioned for Carter to back up and then decedent ran toward Carter, quietly saying “run, run.” Not knowing why decedent gave this direction, Carter started to run and decedent passed him as they entered the gorge trail behind “the Fiji fraternity.” When Carter came to an opening in the trail, he stopped and called for decedent to do the same, but decedent continued on. Minutes later, Carter called decedent on his cell phone, but there was no response. The next day, decedent's body was found below the cliff bordering the trail where Carter last saw him. The City of Ithaca Police Department investigatedand determined that decedent had crossed over a split rail fence that ran along the trail in order to get to the cliff's edge.
Defendant maintains that it is shielded from liability by General Obligations Law § 9–103(1)(a), which, as pertinent here, “grants a special immunity to owners ... from the usual duty to keep places safe” when individuals use their property for specified recreational activities, including hiking ( Farnham v. Kittinger, 83 N.Y.2d 520, 525, 611 N.Y.S.2d 790, 634 N.E.2d 162 [1994] ). The enumerated activities covered under the statute “are essentially self-explanatory” ( id. at 526, 611 N.Y.S.2d 790, 634 N.E.2d 162). “Hiking” has been described as “traveling through the woods on foot” ( Sega v. State of New York, 60 N.Y.2d 183, 193, 469 N.Y.S.2d 51, 456 N.E.2d 1174 [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, 660 N.Y.S.2d 511 [1997], quoting 6 NYCRR 197.2[a] ). Comparatively, this Court recently determined that a person walking her dogs on a paved walkway was not engaged in “hiking” under the statute ( see Drake v. Sagbolt, LLC, 112 A.D.3d 1132, 1134, 977 N.Y.S.2d 131 [2013] ). With one exception not applicable here, a person engaged in one of the enumerated activities is “presumed to be doing so for recreational purposes” without regard to his or her subjective intent (Bragg v. Genesee County Agric. Socy., 84 N.Y.2d 544, 552 n. 3, 620 N.Y.S.2d 322, 644 N.E.2d 1013 [1994];see Farnham v. Kittinger, 83 N.Y.2d at 527–528, 611 N.Y.S.2d 790, 634 N.E.2d 162;Cometti v. Hunter Mtn. Festivals, 241 A.D.2d at 897, 660 N.Y.S.2d 511).
The critical determination is whether decedent's activity constituted “hiking” under the statute. As described, he ran down the gorge trail and, in that literal sense, was “traveling through the woods on foot,” or “hiking,” as defined in Sega v. State of New York, 60 N.Y.2d at 193, 469 N.Y.S.2d 51, 456 N.E.2d 1174. The statute, however, speaks to specified recreational categories reflecting the intent of the Legislature “to allow or encourage more people to use more accessible land for recreational enjoyment” ( Farnham v. Kittinger, 83 N.Y.2d at 525, 611 N.Y.S.2d 790, 634 N.E.2d 162;see Sena v. Town of Greenfield, 91 N.Y.2d 611, 615, 673 N.Y.S.2d 984, 696 N.E.2d 996 [1998];Albright v. Metz, 88 N.Y.2d 656, 661–662, 649 N.Y.S.2d 359, 672 N.E.2d 584 [1996] ). Viewing the facts in the light most favorable to plaintiffs, the nonmoving party, we agree with Supreme Court that, under the distinctive fact pattern presented, defendant did not establish, as a matter of law, that decedent was “hiking” within the embrace of General Obligations Law § 9–103(1)(a) at the time of his death ( see Farnham v. Kittinger, 83 N.Y.2d at 525, 527–528, 611 N.Y.S.2d 790, 634 N.E.2d 162). Consequently, the court properly denied this aspect of defendant's motion.
Next, defendant maintains that since the dangers of the gorge are open and obvious, it had no duty to warn decedent of any hazards and that all reasonable measures to maintain the property in a safe condition had been taken. A landowner is required to both maintain its property in a reasonably safe condition and “to warn of a latent, dangerous condition of which the landowner is or should be aware” ( Soich v. Farone, 307 A.D.2d 658, 659, 763 N.Y.S.2d 168 [2003] ). The duty to warn does not extend to the open and obvious dangers of natural geographic phenomena ( see Cohen v. State of New York, 50 A.D.3d 1234, 1235, 854 N.Y.S.2d 253 [2008],lv. denied10 N.Y.3d 713, 861 N.Y.S.2d 274, 891 N.E.2d 309 [2008]; Tarricone v. State of New York, 175 A.D.2d 308, 310, 571 N.Y.S.2d 845 [1991],lv. denied78 N.Y.2d 862, 576 N.Y.S.2d 220, 582 N.E.2d 603 [1991];see also Freese v. Bedford, 112 A.D.3d 1280, 1281, 977 N.Y.S.2d 814 [2013];Arsenault v. State of New York, 96 A.D.3d 97, 101, 946 N.Y.S.2d 276 [2012];Walter v. State of New York, 185 A.D.2d 536, 538, 586 N.Y.S.2d 391 [1992] ). While generally a question of fact, “[f]or a condition to be open and obvious as a matter of law, it must be one that could not be overlooked by any observer reasonably using his or her ordinary senses” ( Arsenault v. State of New York, 96 A.D.3d at 102, 946 N.Y.S.2d 276 [internal quotation marks and citations omitted] ). Defendant likens this case to the situation in Tarricone, where the plaintiff fell from a cliff ledge adjacent to an overlook along the road, which “was open and obvious for all to see” ( Tarricone v. State of New York, 175 A.D.2d at 309, 571 N.Y.S.2d 845;see Doyle v. State of New York, 271 A.D.2d 394, 395–396, 705 N.Y.S.2d 389 [2000] ). The situation here is not quite so clear-cut. In the area of decedent's fall, approximately 35 feet from the cliff, there is a split rail fence that borders the gorge side of the trail. The photographs and videos submitted by defendant depict a sparsely wooded area between the trail and the gorge, sloping downward toward the gorge. Defendant maintains that the air space observable beyond the trees reveals the rim of the gorge, rendering the cliff hazard open and obvious as a matter of law. We disagree. Even though the air space reflects a decline in the landscape, the actual condition at the cliff's edge, and the 200–foot drop-off from the edge, are not depicted. We agree with Supreme Court that a question of fact remains as to whether the cliff's edge was visible and obvious or presented a latent, dangerous condition necessitating an appropriate warning ( see Walters v. County of Rensselaer, 282 A.D.2d 944, 945–946, 724 N.Y.S.2d 97 [2001];compare Walter v. State of New York, 185 A.D.2d at 538, 586 N.Y.S.2d 391).
A further question is whether defendant took reasonable measures to safeguard the area. In this regard, it is important to recognize that the gorge area is open to the public and has been designated as a recreational area ( seeECL 15–2714[3][hh] ). Defendant provided affidavits and photographic evidence showing that three signs were placed along the trail behind the Fiji fraternity stating the following: “WARNING NATURAL AREA USE EXTREME CAUTION.” In addition, three lampposts were situated along the trail in the area of decedent's fall, as well as the split-rail fence. Finally, defendant provides incoming freshman with a brochure entitled “The Gorges of Cornell—Path and Safety Information.” There is, however, no express warning as to the proximity of the cliff to the trail, or any indication that the lampposts illuminated the area leading up to the cliff's edge.
In our view, the adequacy of the warnings and the safety measures taken remain questions of fact for resolution at trial. Accordingly, defendant has failed to demonstrate, as a matter of law, that it is entitled to summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs. PETERS, P.J., ROSE, EGAN JR. and DEVINE, JJ., concur.