Opinion
# 2018-031-049 Claim No. 126498 Motion No. M-91517 Cross-Motion No. CM-91674
11-07-2018
CAROL SAVIO and ROBERT SAVIO, Individually and as parent and natural guardian of J.S., an infant, and M.S., an infant v. THE STATE OF NEW YORK
SMILEY & SMILEY LLP BY: ANDREW J. SMILEY, ESQ. HON. BARBARA D. UNDERWOOD New York State Attorney General BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General
Synopsis
Defendant had no duty to Claimant for failing to inspect falling tree where Claimant and family disregarded multiple clear signs that they were in a restricted area of the Letchworth Park, not open to the public. Claim is dismissed.
Case information
| UID: | 2018-031-049 |
| Claimant(s): | CAROL SAVIO and ROBERT SAVIO, Individually and as parent and natural guardian of J.S., an infant, and M.S., an infant |
| Claimant short name: | SAVIO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the proper Defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126498 |
| Motion number(s): | M-91517 |
| Cross-motion number(s): | CM-91674 |
| Judge: | RENÉE FORGENSI MINARIK |
| Claimant's attorney: | SMILEY & SMILEY LLP BY: ANDREW J. SMILEY, ESQ. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General BY: TAMARA B. CHRISTIE, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 7, 2018 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers, numbered 1 to 17, were read on motion by Claimant for summary judgment on the issue of liability and on cross motion by Defendant for dismissal of the claim:
1 Claimants' Notice of Motion (M-91517), filed December 7, 2017;
2. Affirmation of Andrew J. Smiley, Esq., dated December 5, 2017, with exhibits;
3. Claimants' Memorandum of Law, dated December 5, 2017;
4. Affidavit of A. Wayne Cahilly, sworn to November 29, 2017, with exhibits;
5. Affidavit of Robert Savio, sworn to December 4, 2017, with exhibits;
6. Defendant's Notice of Cross Motion (CM-91674), filed January 17, 2018;
7. Affirmation of Tamara B. Christie, Esq., dated January 11, 2018, with exhibits;
8. Affidavit of Andrew J. Donato, sworn to November 8, 2017, with exhibits;
9. Affidavit of Jason Straw, sworn to December 13, 2017, with exhibits;
10. Affidavit of John M. Orsini, sworn to December 15, 2017, with exhibits;
11. Affidavit of Roland Beck, sworn to December 15, 2017, with exhibit;
12. Affidavit of Jerry Bond, sworn to January 3, 2018, with exhibit;
13. Defendant's Memorandum of Law, dated January 11, 2017 [sic];
14. Affirmation of Andrew J. Smiley, Esq., dated April 5, 2018, with exhibits;
15. Supplemental Affidavit of A. Wayne Cahilly, sworn to March 16, 2018;
16. Claimants' Memorandum of Law, dated April 5, 2018;
17. Filed Documents: Claim and Answer. BACKGROUND
On August 30, 2014, Claimant Carol Savio and her family (her husband, Claimant Robert Savio, and their two minor children, Claimants M.S. and J.S.) endured a horrific accident while visitors at Letchworth State Park (Letchworth) in Livingston and Wyoming counties, New York. Letchworth is a State Park, owned and operated by Defendant, which consists of over 14,000 acres of mostly undeveloped land that contains over a million trees and is roughly the size of Manhattan (Beck Affidavit ¶ 5). While hiking in the park, Claimants concededly left the area of the park that was open to the public and entered an approximately 27 acre area that was restricted and closed to the public. The Savios followed an apparently well worn path in this restricted area, intent on reaching the "Lower Falls" area of the Park. While on this path, a rotted oak tree, approximately 90 feet in length, fell onto the path, striking Claimant Carol Savio, causing catastrophic injuries and rendering her a quadriplegic.
Claimants commenced this action, alleging that Defendant had a duty to inspect the tree that fell on them. They further allege that, had a proper inspection been performed, the rotting and dangerous nature of the tree would have been known to Defendant, and reasonable steps to protect Letchworth patrons from the tree could have been taken. CURRENT MOTIONS
I have before me two motions. With motion M-91517, Claimants move for partial summary judgment on liability. With cross motion CM-91674, Defendant also seeks summary judgment and dismissal of the claim.
Claimants' position is straightforward. Defendant had a duty to inspect the trees along the path, and its failure to do so meant that Defendant had constructive notice of what that inspection would have revealed; that the tree that fell on Claimant Carol Savio was rotten, and constituted a dangerous condition. Defendant's failure to remedy or warn of this dangerous condition warrants the finding of summary judgment in Claimants' favor on the issue of liability.
Defendant argues in its cross motion, however, that summary judgment should be granted in its favor, because: 1) Defendant did not have a duty to inspect the tree that fell on Claimants; 2) Claimants' entry into the closed and restricted area of the park where the accident occurred bars Claimants' recovery; and 3) that in any event, the Defendant was not negligent.
Initially, I note that, even assuming the validity of Claimants' other arguments, each party has submitted and relies on the affidavits of expert witnesses for their respective positions on the issue of whether a reasonable tree inspection would have provided notice to Defendant that the tree that fell on Claimant Carol Savio was at risk of falling. Accordingly, I find that a question of fact exists on this issue. It follows then, that if a reasonable tree inspection would not have provided notice of the dangerous condition of the tree, Defendant cannot be found to be negligent. I find this question of fact sufficient to warrant the denial of Claimants' motion.
With its cross motion, however, in addition to arguing that it has met its duty under the negligence standard argued by Claimants, Defendant also argues that, as Claimants ignored no fewer than six signs clearly notifying them that they had left the part of Letchworth that was open to the public and were in a closed and restricted area at the time of the accident, Defendant had no duty to inspect the tree that fell on Claimant, and that 9 NYCRR § 375.1 specifically bars Claimants from recovery in this action.
With regard to the alleged violations of 9 NYCRR § 375.1, I note that this is a regulation promulgated by the New York State Office of Parks, Recreation and Historic Preservation, the entity which runs and maintains Letchworth State Park. 9 NYCRR § 375.1 provides, in relevant part:
"Activities absolutely prohibited
The activities and uses enumerated in this section shall be absolutely prohibited on property under the jurisdiction, custody and control of the office . . .
(h) Property closed to public. No person shall enter or remain upon any property or within any structure during such hours, seasonal or indefinite periods that such property or structure has been designated as closed by a sign or by an employee of the office.
(i) Use of established ways. No person shall use other than trails, overlooks, roads and other ways established and provided for public use by the office. No liability shall attach to the State, its officers, employees or agents for injuries to persons resulting from the use of other than such established trails, overlooks, roads or ways."
Defendant contends that Claimants admitted conduct was a clear violation of both 9 NYCRR § 375.1 (h) and 9 NYCRR § 375.1 (i). Claimants concede that ignoring the signs they passed en route to the accident scene was a violation of 9 NYCRR § 375.1 (h). But they point out that 9 NYCRR § 375.1 (h) does not contain the same language relieving the State of liability for violations as does 9 NYCRR § 375.1 (i). With regard to 9 NYCRR § 375.1 (i), Claimants concede that a violation would bar their recovery, but Claimants argue that they did not violate this section.
Claimants argument is based on an inaccurate reading of the statute. Claimants maintain that the physical appearance of the ground Claimants were traversing when the accident occurred indicated an established path several feet wide and clearly often used. They argue that these facts demonstrate that they did not violate 9 NYCRR § 375.1 (i) because the path they were on was clearly established. I believe that Claimants have misapprehended the statute's use of the word established. That word was not used in the context of whether a trail is clear and worn enough to be considered established. Rather, the statute indicates that the State will not be held liable when a person uses any way not "established and provided for public use by the office." The statute clearly uses "established" to mean created and designated by the New York State Office of Parks, Recreation and Historic Preservation. In this instance, as the Claimants concede that they passed a total of six signs indicating that they were leaving the path established by the Office, I find that they did violate 9 NYCRR § 375.1 (i) (as well as 9 NYCRR § 375.1 [h]) and, accordingly, the Defendant is specifically exempted from liability by the statute.
Alternatively, the Court is also troubled by the possible application of General Obligations Law § 9-103 to this matter. General Obligations Law § 9-103 provides that a landowner "owes no duty to keep the premises safe for entry or use by others for hunting, fishing . . . canoeing, boating, trapping, hiking . . . ." I note that this statute does apply to public property (Sega v State of New York, 60 NY2d 183 [1983]). However, it appears that Claimants paid a fee to enter Letchworth and the law is settled that "[t]he immunity provisions of § 9-103 (1) do not apply where permission to pursue the recreational activity was granted for consideration (§ 9-103 [2] [b])" (Samuels v High Braes Refuge, Inc., 8 AD3d 1110, 1111 [4th Dept 2004]).
I note that Claimants' payment of consideration to enter Letchworth appears to take this action out of the purview of section 9-103, and therefore understandably, neither party addressed this issue. However, the parties' failure to address section 9-103, if it is otherwise applicable, does not prevent the Court from appropriately applying it (Sega v State, 60 NY2d 183). Here, the consideration paid by Claimants to Defendant did not include entry into the restricted areas of Letchworth. Claimants were fully aware that they were in the restricted area and beyond the limits of the areas of exploration and hiking for which that consideration was paid.
There is at least an argument to be made that, as the area in which the accident occurred was not within that portion of the park for which access was granted for a fee, the standards of section 9-103 are applicable. I note that, if that standard is not applicable, we would be left with contradictory and illogical standards where the owner of a large tract of undeveloped land who knew of and permitted its use would have no liability (§ 9-103) but an owner of an identical tract of land who intentionally closed the area to the public, did not permit access and took affirmative steps to prevent entry, would have liability. Though I can find no case law that addresses this issue squarely, I find that Defendant's liability for the large tract of land that had been closed to public access for approximately 45 years and access to which was not granted by the consideration paid by Claimants, is governed by the provisions of General Obligations Law § 9-103. Defendant, therefore, may not be held liable for Claimants' accident.
Accordingly, it is
ORDERED, that Claimants' motion (M-91517) is DENIED; and it is further
ORDERED, that Defendant's cross motion (CM-91674) is GRANTED and claim number 126498 is hereby DISMISSED.
November 7, 2018
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims