Plaintiff, individually and as the administratrix of her husband's estate, commenced this negligence action seeking money damages in connection with his death at the Brookside Beach Campground. That entity is owned by International Fellowship Inc., whose lone corporate officer is Norman Zent.

The defendants own and operate the campground, part of which rises approximately forty feet above the Lake Erie shoreline. A number of pre-positioned fire pit emplacements are in close proximity to the precipice. Natural vegetation and a so-called "chicken-wire" fence separate some of the fire pits from the drop-off to the rocky beach below. Plaintiff's husband fell to his death while encamped in such an area. The gravamen of the plaintiff's negligence claim is that the defendants took inadequate measures to maintain a reasonably safe campsite.

Defendants move for summary judgment, maintaining that the open and obvious nature of the hazard exempts them from erecting protective barriers; that the fence in place satisfied any duty owed to the decedent as a matter of law; and/or that the sole and proximate cause of death [*2]was the decedent's own negligence. Defendant Norman Zent additionally urges that he should be, "dismissed from this action."

Negligence arises from the breach of a duty (see, Strauss v. Belle Realty Co., 65 NY2d 399). Landowners have a duty to warn of a latent dangerous condition of which the landowner is or should be aware. Landowners also have a duty of exercising reasonable care in maintaining their property in a reasonably safe condition (see, Seich v. Farowe, 307 AD2d 658).

If a hazard or condition is not latent, but is instead open and obvious, the landowner has no duty to warn the visitor of the danger. Whether a condition is open and obvious is generally a jury question, and a court should only determine that a risk was open and obvious as a matter of law when the established facts compel such a conclusion. Juoviene v. HRH Construction (6 AD3d 199, 200).

A review of the parties' submissions, including the photographs, suggests that the drop-off to the rocky beach below was obscured. Thus, a question of fact exists as to whether the cliff's edge was visible and obvious or whether it presented a latent dangerous condition necessitating an appropriate warning. King v. Cornell University (119 AD3d 1195, 1197).

Even were the court to conclude the hazard associated with the cliff was open and obvious, triable issues of fact exist regarding whether defendants breached their broader duty to maintain the premises in a reasonably safe condition. Such issues include the adequacy of the measures taken by the defendants' to protect their patrons as well as whether the alleged failure to take such measures was a substantial cause of the decedent's death. As to the extent to which the decedent's conduct might have contributed to his demise, in a comparative negligence system, the parties' share of culpable conduct presents factual issues for a jury to consider in determining the apportionment of responsibility (see, New York Pattern Jury Instructions, 3rd Edition, Volume 1A, §2:36).

There also exists an issue of fact with respect to the individual liability of defendant Norman Zent.

Generally, the law permits the incorporation of a business for the very purpose of escaping personal liability; thus, a corporate officer is not held liable for the negligence of a corporation merely because of his official relationship to it (see, Bartle v. Home Owners Cooperative, 309 NY 103, 105; Olszewski v. Waters of Orchard Park, 303 AD2d 995). A corporate officer may, however, be held personally liable for a tort of the corporation if he committed or participated in it, regardless of whether his actions were also by or for the corporation (see, Villafrank v. David N. Ross, Inc., 120 AD3d 935). Summary judgment should be denied if there is a factual issue regarding whether the corporate officer was a participant in the allegedly wrongful conduct.

A review of the parties' submissions, including the deposition testimony of Norman Zent, demonstrates that he personally (if not exclusively) participated in the inspection and maintenance of the campground, including, most notably, the fence. Accordingly, there is a triable issue of fact as to whether Norman Zent was a participant in the tortious conduct alleged by the plaintiff.

Based upon the foregoing, defendants motions are denied.

The foregoing shall constitute the Order of this Court.