Notice of Motion (M-66346), Affirmation, with Exhibits 1,2
Memorandum of Law (M-66346) 3
Notice of Cross-Motion (CM-66412), Attorney's Affirmation, with
Memorandum of Law (CM-66412) 6
Affirmation in Reply and in Response to Cross-Motion (M-66346,
Sur-Reply Affidavit, with Exhibit (M-66346, CM-66412) 8
This claim was instituted following the death of Karl L. Myers, who died in a
fall at Chimney Bluffs State Park in the Town of Huron, Wayne County, on April
5, 1999. On that date, just before sunset, Karl Myers, and a companion were
walking at Chimney Bluffs State Park. Mr. Myers apparently wanted to take a
picture of the sunset and he walked out onto a narrow strip of land which jutted
out from the bluff, when, according to the allegations of the claim, the ground
gave way beneath him, and he fell approximately 40 to 50 feet to his death.
Ronald L. Myers, decedent's father and the Administrator of the Estate, has
commenced this action to recover for his son's conscious pain and suffering and
wrongful death. The claim alleges that the State negligently failed to maintain
the area where the decedent fell, and/or failed to warn against or correct the
dangerous condition posed by the eroding soil in the vicinity of the bluffs
where decedent fell.
By its motion (M-66346), the State now moves for summary judgment, contending,
as a matter of law, that it is immune from liability under General Obligations
Law, § 9-103. Additionally, the State argues that even if § 9-103 is
held inapplicable to the facts of this claim, it may not be held liable even
under the rules of common law negligence, since the danger posed by the soil
erosion was so apparent that it did not have a duty to provide any warning of
this condition. Claimant has cross-moved (CM-66412) for an order granting
partial summary judgment dismissing the State's Eighth Affirmative Defense, in
which the State has asserted its immunity from liability under General
Obligations Law, § 9-103.
General Obligations Law, § 9-103 provides an immunity against liability
for ordinary negligence to landowners who allow public use of their property for
certain enumerated recreational activities, including hiking. This immunity
extends to both private and municipal landowners, including the State (see,
Sega v State of New York, 60 NY2d 183; Clark v State of New York,
178 AD2d 908). The section provides that an owner "owes no duty to keep the
premises safe for entry or use by others" for those enumerated activities, and
the owner does not "assume responsibility for or incur liability for any injury
to person or property caused by any act of persons to whom the permission is
granted" (§ 9-103[a] and [b]). The immunity does not apply, however, if
there exists a "willful or malicious failure to guard, or to warn against, a
dangerous condition" or if consideration is charged by the owner to gain access
(§ 9-103[a] and [b]).
In this case, the State maintains that it is entitled to this immunity as a
matter of law, since the decedent was engaged in one of the statutorily
enumerated activities (i.e., hiking), there was no evidence of any willful or
malicious failure to guard or to warn against a dangerous condition, and the
State did not charge any entrance fees to individuals using the park. Claimant
contends that since these lands were already open to the public as part of a
State park, ordinary principles of negligence should apply, and the State should
not be entitled to the immunity provided by General Obligations Law, §
In this claim, it is undisputed that Chimney Bluffs State Park is owned by the
State, under the administration of the State Office of Parks, Recreation and
Historic Preservation (see, 9 NYCRR, pt. 384). At the time of this accident,
Chimney Bluffs was an undeveloped State park, with no provisions made by the
State for any regular maintenance or supervision of those lands. There were
foot-worn paths over which hikers walked leading to the bluffs, but there is no
indication that the State either created or maintained these hiking trails.
Furthermore, the State did not charge individuals any access or entrance fee for
using the land.
The deposition testimony of John C. Clancy, Regional Director for the Finger
Lakes Region of the New York State Office of Parks, Recreation and Historic
Preservation, was submitted to the Court with this motion (see Exhibit "D" to
Items 1,2). Additionally, the deposition testimony of Robert Hiltbrand, Park
Manager at Fair Haven Beach State Park,
also submitted (see Exhibit "E" to Items 1,2).
Their deposition testimony established that although Chimney Bluffs State Park
was at the time of this accident still undeveloped, a development plan was in
place, pending suitable funding, in which certain improvements to the park lands
were intended to be made over a period of time. Additionally, at the time of
this accident, a vehicular parking area was available. Furthermore, standard
New York State Office of Parks and Recreation signs had been affixed around the
boundary of the property, delineating the borders of the park, and other signs
had been posted within the park stating the rules to be followed by visitors.
Maintenance crews were dispatched to the park when needed. The State, however,
had not constructed any public lavatories, had not designated or maintained any
specific hiking trails, and did not provide regular supervision or maintenance
of this park.
Section 9-103 was enacted to "induce property owners, who might otherwise be
reluctant to do so for fear of liability, to permit persons to come on their
property to pursue specified activities" (Baisley v State of New York,
163 AD2d 502, 503, quoting Iannotti v Consolidated Rail Corp., 74 NY2d
39, 43). In this case, however, even though the land was undeveloped, the State
was certainly aware of the attraction created by the natural beauty of these
bluffs, and that the bluffs were regularly visited by hikers and others who
appreciated this beauty. In order to preserve these conditions, the State had
incorporated these lands into its State park system, had posted rules for proper
behavior within these lands, and had in place a proposed development project to
construct and upgrade facilities at this park, to better serve the public. Even
though the park was undeveloped, and no consideration was charged by the State,
the State did hold these lands open to the public, and encouraged their use as
part of its State parks system. Based on the foregoing, in this instance this
Court therefore finds that the stated purpose of § 9-103 would not be
served if the duty of care owed by the State was drastically reduced from the
ordinary standard of care (see, O'Keefe v State of New York, 104 AD2d
Accordingly, the Court finds that claimant's cross-motion must be granted, and
the State's Eighth Affirmative Defense, alleging an immunity pursuant to General
Obligations Law, § 9-103, must be dismissed.
As previously mentioned, defendant also argues that even under common law rules
of negligence, no liability can be imposed against the State for this accident.
The State contends that it had no duty to warn the decedent, since the dangerous
condition was open and obvious.
Summary judgment is the procedural equivalent of a trial (Andre v
Pomeroy, 35 NY2d 361) and should be granted only when it has been
established that there is no triable issue (Moskowitz v Garlock, 23 AD2d
943). The role of the Court, therefore, on a motion for summary judgment is not
to resolve material issues of fact, but instead is to determine whether any such
issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).
If such material issues of fact exist, the motion for summary judgment must be
denied (Rotuba Extruders v Ceppos, 46 NY2d 223). Additionally, summary
judgment is seldom appropriate in a negligence action (see, Andre v
Pomeroy, supra). As a property owner, the State is held to the same
standard of care as any private landowner (Basso v Miller, 40 NY2d 233;
Preston v State of New York, 59 NY2d 997). The State must act as a
reasonable person in maintaining its property in a reasonably safe condition in
view of all the circumstances, including the likelihood of injury to others, the
seriousness of the injury, and the burden of avoiding the risk (Miller v
State of New York, 62 NY2d 506). The State, however, is not an insurer, and
negligence may not be inferred solely from the happening of an accident
(Tripoli v State of New York, 72 AD2d 823; Mochen v State of New
York, 57 AD2d 719).
In this case, there are certainly material questions of fact as to the nature
and extent of the State's duty to decedent under the circumstances of this
claim. A question of fact has been presented as to whether the State had a
duty to warn of the potential danger of falling from the bluffs, and whether
such a fall could result from the collapsing of soil due to the effects of
erosion. This Court therefore cannot determine, as a matter of law, that the
conditions leading to decedent's fall were so open and obvious as to obviate the
State's duty to warn.
Accordingly, it is
ORDERED, that Motion No. M-66346 is hereby DENIED; and it is further
ORDERED, that Cross-Motion CM-66412 is hereby GRANTED, and defendant's Eighth
Affirmative Defense is hereby dismissed.