New York State Court of Claims

New York State Court of Claims

CHAPMAN v. THE STATE OF NEW YORK AND NEW YORK STATE THRUWAY AUTHORITY, #2001-005-506, Claim No. 97828, Motion Nos. M-61413, M-61575


Claimant collided with part of a tree while riding his bicycle on the Erie Canal towpath. The State's motion for summary judgement dismissing the claim on the ground that the applicable standard of care was governed by General Obligations Law §9-103, was denied, and that defense was dismissed. The Court held that the towpath had improved, paved sections encouraging recreational hikers and bikers, and as to those paved areas in a suburban area, the State had a duty of ordinary care, not the diminished duty of GOL §9-103.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-61413, M-61575
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Martin & Iati
Defendant's attorney:
By: Janice M. Iati, Esq.
Third-party defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James L. Gelormini, Assistant Attorney General
Signature date:
March 19, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 8, were read on motion by Claimant for an order dismissing an affirmative defense and on motion by Defendant for summary judgment:
Papers Numbered
Claimants' Notice of Motion (M-61413), Affirmation and Exhibits Annexed 1, 2

Defendants' Notice of Motion (M-61575), Affidavit, Affirmation and

Exhibits Annexed 3, 4, 5

Claimants' Opposing Affirmation 6

Filed Papers: Amended Claim, Amended Answer 7, 8

Upon the foregoing papers, and after hearing Janice M. Iati, Esq., on behalf of Claimants and James L. Gelormini, Esq., on behalf of Defendants, Claimants' motion is granted to the extent noted and the Defendants' motion is denied.

The underlying claim was filed February 18, 1998, following service of a Notice of Intention to file a claim on November 15, 1996. It arose on September 16, 1996, when George T. Chapman collided with part of a tree as he rode his bicycle along the Erie Canal towpath near Route 390, just west of West Henrietta Road in Monroe County. The claim of Jane E. Chapman is derivative in nature, and unless otherwise specified the term Claimant is used herein to refer to George Chapman. Defendants' answer was served on or about March 3, 1998. On January 19, 2000, an amended claim was filed. An amended answer was served on or about February 17, 2000, in which Defendants raised a fourth affirmative defense alleging that the applicable standard of care is governed by §9-103 of the General Obligations Law.

Section 9-103 of the General Obligations Law (GOL) provides in pertinent part that an owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for the purpose of hunting, fishing, organized gleaning, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs.

It was undisputed that portions of the canal towpath, including the section in issue here, were paved to facilitate bicycle riding, and that bicycle riders were welcomed to use the path without charge. The deposition testimony of Frank Langdon, then the canal maintenance supervisor responsible for the Monroe County portion of the canal, indicated that portions of the towpath had been paved over during the early or mid-nineties "to provide an improved recreationway for bikers and hikers" (Exhibit K, Langdon EBT at 70, lines 15-16). When asked how bikers would know that there was a trail available for them, Mr. Langdon replied: "There are signs at some locations and printed materials, brochures and maps available at sites such as canal locks" (id., at lines 20-22). Mr. Langdon testified that his duties with respect to the towpath varied depending on the location and condition of the path because some areas were paved and improved, while others were "stone, dust and less well maintained" (id., at line 4). His duties included clearing brush and encroaching vegetation, mowing, filling potholes, installing or replacing signage, general upkeep and repair of that facility (id., at lines 5-8). Mr. Langdon testified that in September his maintenance crew of six or seven individuals "would still be mowing along the path and the grounds around our buildings. We would constantly be clearing brush and vegetation that encroaches upon the path and roadways to the picnic areas" (id., at 76, lines 20-24). Mr. Langdon's working hours at the time of the accident were 6:30 a.m. to 5:00 p.m., Monday through Friday.

The excerpts from the examination before trial of Chris M. Krekic, the seasonally employed lockkeeper for Lock 33, indicate that his normal duties were operating and repairing the lock and coordinating boat traffic through the lock. Mr. Krekic testified that although his duties did not include responsibility for the towpath, he was supposed to correct any deficiency he found in the immediate area and contact his supervisor if any problems were reported to him. He did so the evening before the accident when a bicyclist came to the lock house and reported that there was a tree across the west towpath, in the air a few feet above the towpath, about one-tenth of a mile west of the East Henrietta Road bridge (Exhibit K, Krekic EBT at 14-15) and recorded the report in the canal logbook (Exhibit P). Mr. Krekic's work hours were 2:45 p.m. to 10:45 p.m., Thursday through Monday (Krekic EBT at 7). Mr. Krekic's supervisor, Paul Rosten, who testified that he was contacted at home about 9:00 p.m., determined that it was too late at night to attempt to clear the tree with a chain saw. (There was no artificial lighting on that portion of the path except for whatever lighting was attributable to the nearby expressway and highways [Chapman EBT, at 17]). The following morning, before his normal starting time of 7:00 a.m., Mr. Rosten drove his pickup truck along the towpath approaching Lock 33 in order to ascertain the location and status of the downed tree. As he made his way along the path, he came upon Claimant, who had already been injured, and assisted him to Lock 33 to obtain medical attention. Mr. Rosten was certain that it was dark as he proceeded along the towpath in search of the downed tree, and he had the truck's headlights on when he spotted the tree at about 6:15 or 6:20 a.m. (Rosten EBT, at 15, 21). Claimant testified that when he left home about 6:10 a.m., it was the "crack of dawn" (Chapman EBT at 16) and the streetlights were still on. It was his estimate that he arrived at the accident site about 15 minutes later.

The deposition of Stanley Switzer, who was employed as a "bank walker" for the stretch of canal in question indicates that he walked the towpath the day before the accident, but was unaware of the fallen tree until he arrived at work on September 16th and was informed by Mr. Rosten that an accident had already occurred. According to Mr. Switzer, his duties included walking the banks, checking for leaks, checking for things down on the trail, assisting in the operation of the locks when he got back, doing maintenance, painting, etc. Mr. Switzer testified that if he had found the downed tree, he "would have called in right away and said there was a tree down, you know, and had them call the crew. And then I would have got a hold of somebody and come out and marked it and we'd put up like cones or something" (Exhibit K, Switzer EBT at 33, lines 6-11). Mr. Switzer worked 7:00 a.m. to 3:30 p.m. on Wednesday, Thursday, Friday, Saturday and Sunday (id., at 27). The canal corporation's maintenance crews worked a day shift Monday through Friday, but were on call for emergencies.

The affidavit of John M. King, Director of Maintenance and Operations for the New York State Canal Corporation (Exhibit 1 to Defendants' motion papers) indicates that the 524-mile canal system includes about 25,000 acres of land on both sides of the canal system, "most of which is essentially unsupervised" (Exhibit 1 at para 5). According to Mr. King, the maintenance staff is primarily responsible for maintaining the facilities of the canal to ensure safe navigation, although it does also "maintain lands immediately adjoining locks, dams, bridges, guard gates, etc. that are open to the public" (id., at para 7). Mr. King's affidavit also addresses the duties of the "bank walkers" such as Mr. Switzer, and states that they "literally walk the banks of elevated portions of the canal to inspect for leaks in the embankment and, secondarily, other hazards to navigation. While their duties may cause them to walk along adjoining lands and paths that are open to the public, it is not their function or responsibility to inspect the paths" (id., at para 8).

Defendants rely upon Sega v State of New York, 60 NY2d 183, for its position that §9-103 of the General Obligations Law relieves it from the duty of ordinary care to persons using the towpath for any of the purposes enumerated in the statute. Claimants, on the other hand, argue that Ferres v City of New Rochelle, 68 NY2d 446, and its progeny mandate that §9-103 not apply where an improved, supervised facility is provided and users are in fact invited onto the premises.

Sega v State of New York, 60 NY2d 183, supra, addressed the application of GOL §9-103 to two cases against the State. The first (Sega) arose from an accident involving a hiker in an area described as an undeveloped campground with limited improvements in the Catskill Forest Preserve. The second (Cutway) arose when the driver of a three-wheeled all terrain vehicle hit a steel cable stretched across the gate to a five-mile long meandering gravel road on a 4200 acre property in the Adirondack Forest Preserve. The Court concluded that the clear language of §9-103 evinced a legislative intent that the protections of the statute apply to the State as well as to private landowners, and that the statute applied in both cases before it. Under those circumstances, a defendant's negligence is immaterial and liability can be imposed "only if there is a willful or malicious failure to warn" (60 NY2d at 191).

The protection of the statute, however, does not necessarily insulate the State from a duty of due care to those who engage in the covered activities in public parks. In O'Keefe v State of New York, 104 AD2d 43, the State was found liable for the drowning deaths of a father and two sons at the marina at Beaver Island State Park where they were fishing prior to the beginning of the boating season. The Court concluded that provision of accessible life-saving equipment at the marina would have prevented the tragedy. The recreational facilities at Beaver Island State Park included picnic shelters and playgrounds, a beach, a casino building with changing rooms and concession stand, and a golf course.  In response to the argument that the State was protected from liability by §9-103, the Appellate Division, Fourth Department, stated:

[A] construction which greatly reduces the duty of care of governmental units in the operation of their public parks serves no discernible public interest and certainly not one that is consistent with the stated purpose of section 9-103, i.e., encouraging a possessor of land to permit persons to come upon his property for the purposes of hunting, fishing and other outdoor recreational activities. Obviously, there is no need to encourage a governmental entity which builds, operates and maintains a public recreational complex to open it for public use (104 AD2d at 47).

The Court of Appeals later weighed in with Ferres v City of New Rochelle, 68 NY2d 446, supra, which framed the issue at bar as whether §9-103 "applies to afford immunity to a municipality in the maintenance of a supervised public park and recreational facility such as the one here" (68 NY2d at 455). The case held that the statute does not apply to a suburban regulated park with a recreation supervisor and about 24 employees, a public parking area, guard house, beach, park for sitting and lounging, several pavilions, and a place to eat. The Court cited O'Keefe v State of New York, 104 AD2d 43, supra, as well as Russo v City of New York, 116 AD2d 240, and Bush v Village of Saugerties, 114 AD2d 176, in endorsing the conclusion that nothing in the wording or history of the statute supports:

[a] construction which results in a drastic reduction in a municipality's responsibility in the operation and maintenance of its supervised parks, and serves no discernible public interest, certainly not one consistent with the stated aim of section 9-103: encouraging a landowner to permit persons to come upon his property for the purpose of hunting, fishing and other outdoor recreational activities. . .

We note, moreover, that when General Obligations Law §9-103 is applied . . . there is a quid pro quo – permission to hunt or fish (for example) in return for the statutory immunity from liability. But for the inducement to the owner of the liability protection, the person presumably would not have been permitted on the property. This is clearly not the case when someone is injured in a city park like the one here where the public is already encouraged to engage in recreational activities of all kinds. Then, the city has already undertaken the higher duty that the law imposes on municipalities in the operation and maintenance of supervised park facilities. . . If the statute is applied in such case, the result is an immediate reduction of this higher duty to one which requires the municipality to do no more than refrain from a malicious act or omission (68 NY2d at 453- 454 [citations omitted]; See also, Smith v State of New York, 124 AD2d 296).

Similarly, Sena v Town of Greenfield, 91 NY2d 611, finding that the accident site was part of a supervised park, concluded that §9-103 did not apply to a sledding accident in an area that had been a town highway department gravel pit and been re-graded to make it suitable for sledding. The area was routinely inspected, and was part of a dedicated town park that included a baseball field and pavilion, although a sign had been posted noting that sledding was at one's own risk.

In Iannotti v Consolidated Rail Corp., 74 NY2d 39, which bears at least some physical resemblance to the claim at bar, the Court concluded that the statute was not limited to claims arising in wilderness, remote or undeveloped areas, but could also be applied to lands put to dual use for recreational activities and active commercial purposes provided "the property is the sort which the Legislature would have envisioned as being opened up to the public for recreational activities as a result of the inducement offered in the statute. In other words, is it a type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation?" (74 NY2d at 45). In Iannotti, the land in question was an abandoned trackbed adjacent to an active rail line. The plaintiff had been riding his motorized trail bike on the stone and dirt right of way, and the defendant's employees occasionally used it as an access road to repair portions of rail track.

Although the towpath, too, serves a dual use for recreation and for access to the canal banks to maintain the canal in condition for navigation, it is unlike Iannotti in that the towpath has had sections improved and paved specifically to facilitate hikers and bikers, and in that recreational users have been encouraged, not merely tolerated.

The Third Department attempted to harmonize the Court of Appeals precedents in Wilkins v State of New York, 165 AD2d 514, which declined to rely on the argument that Section 9-103 should be inapplicable because the land at issue was public land held open to the public for recreational use and the State therefore did not need the inducement of the statute to open up its lands. Instead, the Court looked at both the character of the land itself (as in Iannotti), and the role of the landowner in relation to the public's use of the land. Assuming the land itself to be physically conducive to the activity engaged in, the Court distinguished between situations such as those presented in Sega and Iannotti, in which the landowners owned and maintained the land, but did not operate, maintain or supervise any public recreational facilities, and that presented in Ferres where the municipality "not only owned and maintained land held open to the public, but . . . also operated, supervised and maintained various public recreational facilities" (165 AD2d at 516). In Wilkins, where the accident occurred in a section of the Adirondack Park Preserve that was found to be "largely undeveloped, with only limited improvements" (id.), the Court concluded that although the State maintained the land and held it open to the public, it did not operate, maintain or supervise any public recreational facilities on the land and therefore should be afforded the protection of §9-103.

Following the Wilkins analysis, the Third Department held in Clark v State of New York, 178 AD2d 908, that a sledding accident at the Clermont Park Historic Site in the Town of Livingston, Columbia County, was governed by the standard of care set forth in §9-103. The 417 acre site included a restored mansion, parking lot, picnic tables, public toilets and nearly five miles of trails used for hiking in summer and cross-country skiing in winter, as well as trails for horseback riding. Although sledding was not actively discouraged at the site, neither was it formally encouraged or permitted. The Court found that although the land was physically conducive to sledding and frequently used by the public for that purpose, and that although maintenance personnel were on duty weekdays during the winter, the land was not maintained or supervised for sledding and therefore

§9-103 applied to the case.

Similarly, in Stento v State of New York, 245 AD2d 771, lv denied 92 NY2d 802, the Court concluded that §9-103 governed cross-country skiing in a State park, despite a host of supervised summertime activities and facilities and despite a past history of providing ski trails and maps, because "the State's role as a landowner changes so dramatically in the winter that it cannot reasonably be said to operate, maintain or supervise public recreational facilities at that time of year" (245 AD2d at 773). During the winter months, the park offered "no supervised activities", employed only 6 to 11 people whose duties were limited mainly to snow plowing and maintenance, did not charge for parking, did not maintain its multipurpose trails, and neither groomed nor routinely inspected them for cross-country skiing.

The Third Department also addressed the issue in McCarthy v New York State Canal Corp., 244 AD2d 57, lv denied 92 NY2d 815, which involved injuries to a person engaged in fishing off a seawall on the north bank of the Mohawk River. In that case it specifically rejected the Court of Claims' reasoning that no public purpose would be served by applying Section 9-103 because the Canal Corporation was operating a public recreational facility in permitting the public to dock boats at the terminal wall.

Our examination of the record leads us to a contrary conclusion in that there is insufficient proof of supervision on a par with that provided by the municipal parks in Ferres v City of New Rochelle . . . and Sena v Town of Greenfield . . . . Here, uncontradicted evidence shows that while the public is permitted to engage in fishing from the terminal wall, without charge . . . neither that activity nor use of the site for that purpose is under the supervision of the Canal Corporation or Thruway Authority. In our view, without the additional inducement of liability protection, the Canal Corporation and the Thruway Authority would no doubt feel constrained to end the public's use of the terminal wall for fishing (244 AD2d at 59).

Having considered the parties' papers and oral argument and the case precedents outlined above, I conclude that although the facts here present a close case, the defense based upon General Obligations Law §9-103 should be dismissed. Mr. King's affidavit suggests that holding the Canal Corporation to the same standard of care as the owner of a supervised municipal park would militate against the opening of such lands to the public. The holding here, however, that §9-103 does not apply to a paved section of the towpath in a suburban area, need not be extended to encompass the entire 25,000 acres of canal lands. The record is clear that this portion of the path was paved to encourage recreational use and that maps and brochures were made available to members of the public for the same reason. As to "supervision" of recreational activities, I am not quite sure what supervision of bikers and hikers would entail here in any case. It does seem clear, however, that bikers were expected and encouraged, that the accident occurred on the path itself, and that maintenance and inspection forces looked for and addressed hazards that arose on the path. Imposing a duty of ordinary care on the Defendants with respect to paved portions of the towpath does not create an unreasonable burden.

Finally, I have considered and rejected Defendants' argument based upon precedents under the Federal Tort Claims Act, 28 USC §1346(b), that the Ferres exception to GOL §9-103 must be limited to municipal defendants.

Accordingly, Claimants' motion to dismiss the affirmative defense founded on GOL §9-103 is granted.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Center, 64 NY2d 851). Employing a standard of due care in this case basically precludes granting Defendants' motion for summary judgment, because there are a number of material issues of fact to be resolved with respect to the reasonableness of the Defendants' maintenance and repair efforts, as well as with respect to the comparative fault of Mr. Chapman.

For example, it is not clear what the lighting conditions on the path were at the time of the accident. Mr. Rosten testified that his truck's headlights were on as he approached the fallen tree, and that it was dark. Mr. Chapman's testimony on the issue was less clear. Although he admitted there was no purposeful lighting on the path, he stated that there was "some additional lighting . . . transferred from the nearby expressway and highways" (Chapman EBT at 17). Assuming it was dark at the time of the accident, Mr. Chapman's comparative negligence or assumption of the risk in riding under such conditions must be weighed, and is a question of fact, not of law (see Utkin v Rademacher, 261 AD2d 840, lv dismissed 94 NY2d 796; Weller v Colleges of the Senecas, 217 AD2d 280, 284). Further, in addition to the question whether Claimant George Chapman was negligent with regard to lighting conditions, Defendants have also raised the issue whether he was negligent in that he chose to ride on the path in poor light when he testified that he had seen the tree partially blocking the path the previous Thursday. In response to this argument, Claimants rely upon the "momentary forgetfulness" doctrine discussed in Cohen v St. Regis Paper Co., 65 NY2d 752, 754, which raises still another issue of fact (see Serrano v Corcoran Plate Glass Co., 33 NY2d 544; Torrie v Virtuoso Bldg. Co., 58 AD2d 982).

Additionally, the issue of whether the Defendants' response and timeliness were reasonable or unreasonable is a factual question that awaits proof at trial.

Accordingly, the Defendants' motion for summary judgment is denied.

March 19, 2001
Rochester, New York

Judge of the Court of Claims