New York State Court of Claims

New York State Court of Claims

MYERS v. THE STATE OF NEW YORK, #2003-009-27, Claim No. 101708, Motion Nos. M-66346, CM-66412


Defendant moved for summary judgment dismissing the claim, claiming immunity from liability under General Obligations Law, § 9-103. Claimant cross moved for an order of partial summary judgment dismissing the State's affirmative defense asserting this immunity. Claimant's decedent died in a fall at Chimney Bluffs State Park when he fell from one of the bluffs. Although claimant was involved in one of the recreational activities for which a limited immunity is provided by GOL 9-103, the Court found that the State had incorporated the bluffs into its State park system, had in place a proposed development project, held the lands open to the public, and encouraged their use as part of its State park system, and therefore determined that the immunity under 9-103 was not applicable to this claim. The Court also found material questions of fact as to the nature and extent of the State's duty, and therefore also denied defendant's motion seeking to dismiss the claim as a matter of law under common law rules of negligence.

Case Information

RONALD L. MYERS, as Administrator of the Estate of KARL L. MYERS, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
BY: Edward Smith, III, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought a motion (Motion No. M-66346) seeking an order of summary judgment dismissing the claim. Claimant has responded with a cross-motion (Cross-Motion No. CM-66412), for an order of partial summary judgment dismissing one of the State's affirmative defenses.

The following papers were considered by the Court in connection with these motions:
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 Exhibits 4,5

Memorandum of Law (CM-66412) 6

Affirmation in Reply and in Response to Cross-Motion (M-66346, CM-66412) 7

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[1][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[2][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, § 9-103.

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,[1] was 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 43).

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.

June 30, 2003
Syracuse, New York

Judge of the Court of Claims

[1] Chimney Bluffs State Park was considered a satellite facility of Fair Haven Beach.