New York State Court of Claims

New York State Court of Claims

WANKMULLER v. THE STATE OF NEW YORK, #2000-007-055, Claim No. 97322, Motion No. M-62066


Defendant moved for summary judgment dismissing claim. Claim based upon fall by college student hiking in the mountains. Motion denied.

Case Information

LORRAINE WANKMULLER, as Administratrix of the Estate of STEPHEN PAUL WANKMULLER, deceased Claimant also named as a defendant the State University of New York at Albany. Such entity, however, is not a proper defendant in the Court of Claims. The Court has amended the caption to reflect the proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Claimant also named as a defendant the State University of New York at Albany. Such entity, however, is not a proper defendant in the Court of Claims. The Court has amended the caption to reflect the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Burns & Harris (Katherine M. Burns, Esq., of Counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Eileen E. Bryant, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
September 18, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has made an application for an order granting summary judgment dismissing the claim. The return date of the motion was September 6, 2000.[1] The following papers were read and considered by the court:

Notice of Motion, Affirmation of Eileen E. Bryant,

Esq., Affidavit of Carl G. Martin, Annexed
Exhibits, Memorandum of Law 1, 2, 3, 4, 5

Affirmation in Opposition of Katherine Burns,
Esq., Annexed Exhibits 6, 7

Filed Papers: Claim, Answer 8, 9

On September 29, 1996, Stephen Paul Wankmuller, a student at the State University of New York at Albany (hereinafter SUNY Albany), accompanied the "Outing Club" for a hike on Snowy Mountain in the Town of Indian Lake, Hamilton County. As he descended the mountain, Mr. Wankmuller fell approximately 150 feet down a rock slide. The other members of the hiking party did not realize Mr. Wankmuller was missing until they had completed the hike. The State Police were contacted at approximately 8:00 p.m. and a search ensued. Mr. Wankmuller was not located by State Forest Rangers until October 2, 1996, and by such date he had died. The rangers discerned from evidence at the site that Mr. Wankmuller had not died immediately upon falling, but that he had dragged himself after the fall to the base of two birch trees where he ultimately expired. Claimant contends, among other things, that defendant failed to properly supervise the hike. Defendant has moved for summary judgment, arguing, inter alia, that defendant is not responsible for the acts or omissions of the Outing Club and that Mr. Wankmuller assumed the risk of his injuries.

Summary judgment is a drastic remedy that may be employed only when it is clear that no triable issues exist (Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732). The proponent of the motion bears the threshold burden of tendering sufficient evidence to eliminate any material issues of fact and establishing the propriety of judgment as a matter of law (Tiano v Lane, 260 AD2d 908). If the movant meets the threshold burden, the nonmoving party must step forward with evidence demonstrating a triable issue of fact to defeat the motion (Moran v Technical Bldg. Servs., 258 AD2d 697). The court must review the evidence presented in the light most favorable to the party opposing summary judgment (Currier v Wiltrom Assocs., 250 AD2d 956).

The court is not convinced that defendant has established as a matter of law that SUNY Albany is not responsible for acts of the Outing Club. The Outing Club is a group recognized and provided with funding by the Student Association of SUNY Albany. Although the Student Association is ostensibly afforded considerable autonomy, claimant has recited to purported facts that reflect SUNY Albany may have exercised some control over the Student Association (Burns Affirmation, at 2-5). It merits noting that in prior claims arising from incidents involving a club of a State college's Student Association, courts have addressed the merits of the claim without specifically discussing the relationship between the club and the college (see, e.g., Regan v State of New York, 237 AD2d 851; Mintz v State of New York, 47 AD2d 570). While such silence about the issue does not necessarily reflect the presence of a relationship from which liability will flow, it does indicate the potential perplexity of the issue.[2] Here, the issue of whether the level of control retained by SUNY Albany is an adequate base upon which to premise liability will be best addressed after both parties have had a full opportunity to present proof at trial.

The issues of duty, proximate cause and assumption of the risk all present formidable obstacles for claimant. A college or university does not stand in loco parentis for its adult students (see, e.g., Ellis v Mildred Elley School, 245 AD2d 994; Talbot v New York Inst. of Technology, 225 AD2d 611). Indeed, the Third Department has stated that college students are "assumedly cognizant of perilous situations and able to care for themselves, and not young children in need of constant and close supervision" (Mintz v State of New York, 47 AD2d supra, at 571). The law is also now well settled that an adult who voluntarily participates in recreational activities consents to the commonly appreciated risks inherent in such activities (see, Morgan v State of New York, 90 NY2d 471; Regan v State of New York, supra).

Here, the papers presented reveal several lingering factual issues. For example, there is no indication whether the decedent was familiar with hiking in the mountains and thus whether he was knowledgeable of common precautions for hiking (cf., Morgan v State of New York, supra, at 484 [knowledge "plays a role" in determining duty]). Mr. Wankmuller was ostensibly hiking alone when he fell and claimant criticizes defendant's failure to implement a "buddy system." The fact that there is evidence that the decedent survived the initial fall elevates the significance of his solo status at the time he fell. Although liability will be difficult to establish under the controlling law, the court is not convinced that the claim should be dismissed as a matter of law at this juncture (see generally, Lake, The Rise of Duty and the Fall of In Loco Parentis and Other Protective Tort Doctrines in Higher Education Law, 64 Mo L Rev 1 [1999]).[3]

Defendant's motion is denied.

September 18, 2000
Plattsburgh, New York

Judge of the Court of Claims

On September 11, 2000, the court rendered an oral decision on the motion during a telephone conference with counsel. Such a procedure was used so counsel would be aware of the court's decision well in advance of the scheduled trial date of September 26, 2000.
Indeed, the issue regarding the relationship between a club and college was ostensibly before the lower court and the Appellate Division in Regan (supra), but neither court ruled dispositively on the issue.
In his law review article (p. 21), Professor Lake summarizes the duty of colleges regarding student activities as follows:
Colleges continue to owe duties to students in curricular and extracurricular activities, however, students are required to take responsibility for their own choices and the inherent risks of the activities they choose. Thus, recent court decisions confirm that students accept the obvious, ordinary, and inherent risks of a college sport or activity. Students do not, however, accept the risk of non-ordinary, non-obvious, or non-inherent risks, of deliberate or reckless violations of safety rules or protocols, or that they will be taken to a level of activity and risk that requires guidance, assistance, or information the students do not have. Thus, while universities continue to owe duties to students, students also shoulder significant responsibility. Typically, in the face of ordinary, obvious, and inherent risks, a student must take care to avoid injury.