Supreme Court, Tompkins County, November 19, 2020

Varvaro, Cotter & Bender, White Plains (Rose Cotter of counsel), for defendant.

Bottar Law, PLLC, Syracuse (Samantha Riggi of counsel), for plaintiffs.

The case before the court follows a complaint filed by plaintiffs Robert Weirich (plaintiff) and Karen Kushner{**70 Misc 3d at 490} (plaintiff's wife) (collectively plaintiffs) against Finger Lakes Land Trust (defendant) alleging a premises liability negligence cause of action. On May 8, 2020, defendant filed the current motion for summary judgment pursuant to CPLR 3212 seeking ultimate dismissal of the action. On September 18, 2020, the case was heard at oral argument via Skype. Court received and reviewed said motion and decided; as discussed below.^[FN*]

On August 8, 2014, plaintiffs visited a nature conservation area known as Carpenter Falls, in the Town of Niles, Cayuga County, New York. Plaintiff fell down a steep slope and sustained injuries. Carpenter Falls was owned by the New York State Department of Environmental Conservation (DEC) and open to the general public year-round free of charge. Carpenter Falls contains a waterfall, a gorge, a trail, a parking area, and an informational kiosk. Defendant, a nonprofit organization, is responsible for the conservation of Carpenter Falls through a stewardship agreement with the DEC. The stewardship agreement provides the scope of activities in which defendant is required and permitted to perform, including: "routine maintenance and rehabilitation activities on the kiosk, parking area, and trail segments." Routine maintenance is further defined to include removing fallen trees and brush of a certain size, mowing, pruning, hand cleaning culverts, repair of water bars, replacement of broken bridge boards, and litter pickup. Defendant is prohibited from any activity not specifically listed in the agreement and specifically prohibited from posting new signage, installing new drainage, or closing or rerouting new trails unless authorized by the DEC. The agreement specifies that Carpenter Falls must be maintained in a "natural state." Defendant was directed to observe and record any necessary work into a maintenance log and expected to report any unsafe conditions to the DEC.

As part of their duties, defendant was required to maintain the kiosk area located at the entry point of the trail but was restricted to only post signage approved by the DEC. At the time of the accident, there were three "warning signs" at the kiosk area. One read, "CAUTION! EXTREMELY STEEP, SLIPPERY TERRAIN! FOR YOUR SAFETY AND TO PROTECT{**70 Misc 3d at 491} FRAGILE SLOPES, STAY ON TRAIL!" Another reads, "WARNING! This is an unimproved natural area with high cliffs and moderate-to-difficult trails. For your safety and for the protection of the natural area stay on existing trails at all times. Proceed at your own risk." The third stated, "In the ravine the footing may be insecure, the rock surfaces slippery, the bordering tree branches rotten, and many rock ledges loose especially about waterfalls."

On the day of the accident, plaintiff and his family were visiting the Skaneateles area for a music festival and decided to visit Carpenter Falls when they had some free time. Plaintiffs testified they were going on a "simple walk" for "sightseeing" the waterfalls. Plaintiffs had visited Carpenter Falls a few times in the 1980s and plaintiff's son had visited Carpenter Falls [*2]many times and was very familiar with the area. Plaintiffs traveled for about 10 minutes through the woods on a trail and then approached steep and slippery rocky terrain with no handrails. Plaintiff's son Ben was in the front, plaintiff's wife was second and plaintiff was in the rear. In a particularly difficult portion of the trail, plaintiff "fell off" the cliff, where he was injured.

Plaintiffs filed this current action claiming the accident occurred as a result of defendant's negligence under the theory of premises liability. Plaintiffs allege a litany of claims including but not limited to, claims that defendant failed to adequately maintain Carpenter Falls, failed to provide signs that adequately warned visitors of the dangers, failed to design, construct or maintain Carpenter Falls so as to minimize the risk of injury to visitors, and failed to erect proper barriers to protect visitors. Plaintiff's wife adds a cause of action for loss of consortium. Interestingly, plaintiffs also filed a separate claim against the State DEC in the Court of Claims alleging the same cause of action for the same accident.

Defendant filed the current motion for summary judgment seeking a dismissal of the action as a matter of law. Defendant argues that they do not possess control over this land and therefore do not owe a duty and cannot be held responsible as a matter of law. In the alternative, defendant argues that General Obligations Law § 9-103 grants immunity from liability. Finally, defendant argues that plaintiff has no cause of action under plaintiffs' assumption of risk.

Plaintiffs submit opposition and argued that a question of fact remains under section 9-103 immunity as to whether the{**70 Misc 3d at 492} plaintiffs were engaged in hiking or merely walking and sightseeing. Further, plaintiffs argue that defendant failed to warn the DEC of the inherently dangerous conditions in violation of their stewardship agreement and can be held liable under an Espinal exception. Upon due deliberation, the court decides as described below.

Pursuant to CPLR 3212 (b), the motion for summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of either party. When seeking summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, by offering evidence which establishes there are no material issues of fact. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980].) Once this burden is met, the burden shifts to the respondent to establish that a material issue of fact exists. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad, 64 NY2d at 853.)

"When faced with a motion for summary judgment, a court's task is issue finding rather than issue determination (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404) and it must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact." (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]; see Boyce v Vazquez, 249 AD2d 724, 726 [3d Dept 1998].)

The motion "should be denied if any significant doubt exists as to whether a material factual issue is present or even if it is arguable that such an issue exists." (Haner v De Vito, 152 AD2d 896, 896 [3d Dept 1989]; Asabor v Archdiocese of N.Y., 102 AD3d 524 [1st Dept 2013].) Mere conclusions and expressions of hope are insufficient to conquer a motion for summary judgment and the defendant must submit admissible evidence when stating their defense. (See Zuckerman, 49 NY2d 557.) Finally, it "is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact." (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012].){**70 Misc 3d at 493}

Premises Liability within the Stewardship Agreement

At the cornerstone of tort liability, for a finding of negligence there must be a breach of duty. Therefore, as a threshold question, the court must first determine if there is a duty of care owed to the injured party. (See Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002].) While a "contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party" there may be some circumstances where liability to third persons may be appropriate. (Id. at 138-139.) Specifically:

"(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely." (Id. at 140 [internal quotation marks, brackets, and citations omitted].)

Here, both parties agree that the first and second exceptions do not apply to the case at hand. The court will examine the third exception. Under this third exception, the Court of Appeals held that where a third party contracts to "inspect and repair and possesses the exclusive management and control of real or personal property which results in negligent infliction of injury, its assumed duty extends to noncontracting individuals reasonably within the zone and contemplation of the intended safety services." (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 [1994].)

[1] In the case at hand, while the court recognizes that defendant contracted to inspect and maintain Carpenter Falls, and plaintiffs are individuals within the zone of intended safety services, the court is unpersuaded that defendant had exclusive control and that this specific injury was foreseen within that intended safety service. In Palka, the contracting third party was under an obligation to inspect and maintain the wall mounted fans, the exact item that fell on a nurse causing injury. (Id. at 582-584.) Within that service contract, it was specifically outlined that it was Servicemaster's exclusive responsibility to "train, manage and direct" all support employees and it assumed exclusivity of this task, making the risk a "direct and demonstratable" nexus of the contractual obligation and injured party. (Id. at 582, 587.) Distinguishable here, defendant did not maintain exclusivity of maintaining and securing{**70 Misc 3d at 494} the safety of the risk that led to the injury. In other words, there was no direct and demonstratable nexus between the contractual obligations and the injury of the third party. In fact, the stewardship agreement expressly limited the scope of defendant's obligations. Defendant was responsible for maintaining the kiosk and providing signage. However, they were limited to signs only approved by the DEC. Defendant was responsible for maintaining and removing trees and brush on the trails. However, they were limited to trees and brush of a certain size by specific dimensions and were expressly prohibited from building or creating any unnatural improvements, like handrails or fences, without the express permission of the DEC. Since the DEC expressly maintained a certain level of control within the stewardship agreement, the court cannot find that the Palka exception applies to the case at hand. Therefore, since the defendant owed no duty to the injured party under a third-party contract, the plaintiffs have no cause of action against this defendant.

As a matter of completeness, the court will discuss the additional other points below.

General Obligations Law § 9-103

Next, defendant argued that they are entitled to summary judgment because they are immune from liability under General Obligations Law § 9-103. This section provides that an "owner, lessee or occupant of premises" shall owe "no duty to keep the premises safe for entry [*3]or use by others" or "give warning of any hazardous condition" for any person entering for the purpose of any of the specific enumerated activities listed: including hunting, fishing, and hiking. (See General Obligations Law § 9-103 [1] [a].) The statute as applicable to the case at hand is relevant in a three-step analysis. First, is the immunity applicable to this defendant, second, is the immunity applicable to this activity, and finally, was there willful or malicious intent as an exception to the immunity.

The Court of Appeals explains that when looking to whether section 9-103 applies to a certain case, one must look at the legislative intent of the statute. (See Ferres v City of New Rochelle, 68 NY2d 446, 451 [1986].) In Ferres, the Court of Appeals determined that the sole purpose of section 9-103 was to encourage private landowners to open their land to be used for public enjoyment for a limited number of outdoor activities without the fear of legal consequence. (Id. at 452.) The Ferres Court determined that section 9-103 does not provide immunity{**70 Misc 3d at 495} to a municipality, which "already operates and maintains a supervised facility." (Id. at 453.) The Ferres Court continues to note that their holding in that case is not contrary to the holding in Sega, where they held that section 9-103 applies to state-owned lands, absent charging a fee for entry. (See 68 NY2d at 454-455, citing Sega v State of New York, 60 NY2d 183 [1983].) Moreover, the authorized presence of an entity on the premises is enough to trigger the meaning of occupant within the statute. (See Bush v Valley Snow Travelers of Lewis County, Inc., 7 Misc 3d 285, 287 [Sup Ct, Lewis County 2004], affd 27 AD3d 1177 [4th Dept 2006]; see also Albright v Metz, 88 NY2d 656, 661 [1996].)

[2] Here, this portion of unimproved land known as Carpenter Falls was owned and maintained by defendant prior to 2008 when the area was transferred to the State DEC. In 2008, when defendant transferred the land to DEC, the area was dubbed a "unique area" open to the general public. The goal was to add the land to the public land system. Defendant merely provides volunteer stewardship services to help care for the land. The court is unpersuaded that the Ferres exception applies as there is no evidence that this is municipality-owned land that would have been open regardless. The court finds, consistent with Sega, that this state-owned land, retained with the intention to provide an unimproved unique area in which the State does not charge for entry, is covered by immunity. Further, consistent with Bush, defendant is an authorized entity on the premises and therefore is an occupant covered by the statute.

Next the court will discuss whether the plaintiff's activity is enumerated within the statute. Like above, the Court of Appeals again looks at the legislative intent when analyzing whether certain circumstances fit within the enumerated activities. "[T]he statute was originally envisioned as applying to undeveloped or wilderness areas of the type that would ordinarily be frequented by sportsmen engaged in the four listed activities—hunting, trapping, fishing, and training of dogs." (Iannotti v Consolidated Rail Corp., 74 NY2d 39, 44 [1989] [emphasis omitted].) Looking back throughout the history of the statute, courts have expanded the immunity to add additional activities, like hiking, snowshoeing, canoeing etc. In Iannotti, the Court of Appeals expanded the meaning of "unimproved property" to include commercial property and encouraged a fact-based analysis to review whether the property,{**70 Misc 3d at 496} and by extension the activity, is the sort which the legislature would have envisioned as a result of the inducement offered in the statute. (See id. at 45.) In the same manner, "[t]here is nothing in the statute or its history suggesting that the Legislature intended that its application should turn on the subjective intent of the injured person when engaging in one of the enumerated activities." (Id. at 47.)

Here, looking at the totality of the circumstances, the court finds that the plaintiffs were [*4]engaged in an activity intended to be protected by the statute. The court notes the legislative history and takes note from the Court of Appeals in Iannotti to look at the expansion of enumerated activities that have been covered by this statute. The court is directed not to look at the plaintiff's subjective intent, but rather what the plaintiffs were engaged in doing. While the plaintiffs want to subjectively portray their intent as "walking" or "sightseeing" the court is unpersuaded that plaintiffs were not engaged in an activity protected by the statute. It is without question that Carpenter Falls is a hiking trail. Plaintiffs were traversing through trails over a rough terrain on state land. The court finds that plaintiffs were engaged in the activity of hiking, and therefore they were "hiking" within the meaning of section 9-103. Based on the signage at the kiosk that reads "WARNING! This is an unimproved natural area with high cliffs and moderate-to-difficult trails," despite plaintiffs' testimony of their subjective intent, any person could individually assume they were about to embark on a hike, rather than a mere walk of sightseeing. Moreover, by the plaintiffs' own testimony, over the course of their venture, the terrain on the trails became sloped with rocks and cliffs. This was a hike. This was "hiking" as intended to be covered by the State granting immunity from injury.

Finally, the plaintiffs do not assert that defendant maintained the trails in a willful or malicious manner and therefore, that exception is not applicable to the case at hand. Therefore, the court finds that defendant is protected by the immunity granted in section 9-103.

Assumption of Risk

The third point of contention is whether liability is barred based on assumption of the risk. "It is well settled that by engaging in a sporting event or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." (Bouchard v Smiley{**70 Misc 3d at 497} Bros., 258 AD2d 548, 549 [2d Dept 1999] [internal quotation marks and brackets omitted], citing Morgan v State of New York, 90 NY2d 471, 484 [1997].) Further, "the applicable standard should include whether the conditions caused by the defendants' negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport . . . [as] assessed against the background of the skill and experience of the particular plaintiff." (Morgan, 90 NY2d at 485-486 [internal quotation marks omitted].)

[3] Here, like in Bouchard, the plaintiffs engaged in the activity of trail hiking and therefore must assume the risk inherent in recreational hiking, including obvious features of the trail. (258 AD2d at 549.) As any trail in close proximity to a cliff or rock ledge, there is an inherent danger of falling. The court is unpersuaded that the defendant caused any unique and dangerous conditions above those inherent to the sport. Plaintiffs were hiking and climbing rocky terrain close to a cliff's edge. They testify that the change in slope elevation was sudden and without warning. However, rather than turning around, they continued. Further, the court finds that the three signs placed at the kiosk adequately warned plaintiffs of the inherent dangers. Specifically, "CAUTION! EXTREMELY STEEP, SLIPPERY TERRAIN!" and "WARNING! This is an unimproved natural area with high cliffs and moderate-to-difficult trails" and "Proceed at your own risk." Therefore, the court finds that with hiking (or even walking with sightseeing at a waterfall) there comes inherent danger. With slippery terrain, cliffs, and rocks, there comes the inherent risk of falling. The record does not reveal that defendant created any dangerous condition above that which was naturally present. As such, plaintiffs assumed the risk inherent to this recreational activity.

Consistent with the discussion above, defendant has established a prima facie defense to liability as a matter of law. Plaintiffs fail to raise any material issue of fact in opposition to any of the defendant's contentions. Viewing the motion in a light most favorable to the nonmoving party, the defendant's motion for summary judgment is granted and the case is dismissed as a matter of law.