Basso v. Miller

Citation352 N.E.2d 868,386 N.Y.S.2d 564,40 N.Y.2d 233
Parties, 352 N.E.2d 868 Stephen BASSO, Respondent, v. William A. MILLER et al., Appellants.
Decision Date17 June 1976
CourtNew York Court of Appeals Court of Appeals

William F. McNulty, Daniel J. Coughlin and Anthony J. McNulty, New York City, for William A. Miller, appellant.

I. John F. Haggerty, Brooklyn, for Ice Caves Mountain, Inc., appellant.

Bernard S. Epstein and Abraham Epstein, New York City, for respondent.

COOKE, Judge.

Ice Caves Mountain, Inc., operates a large scenic park as a tourist attraction on property leased from the Village of Ellenville. During the summer months the premises are open to the public from approximately 8 a.m. until a half hour before dark on the payment of an admission fee. Although the witnesses differed on certain points, the record reveals relevant events of the late afternoon and early evening of September 3, 1972.

In the late afternoon of that September day, Jeffrey Shawcross, a patron, walked off the main trail up the hillside and fell into a 40-foot crevice, where he remained until rescued about four and a half hours later. Another customer, 17-year-old Frederick Coutant, after hearing of the accident, went down into the hamlet of Cragsmoor and told 'a couple of people' about it, among them the plaintiff and defendant Miller. These two, riding on Miller's motorcycle, proceeded up to Ice Caves Mountain. Miller drove, plaintiff sat behind as passenger on the single seat, with his arms wrapped around Miller's midriff and his feet on the exhaust pipes. It was still daylight when the two arrived at the entrance. Plaintiff testified that Miller stopped the motorcycle, got off, went into the house where tickets were sold, spoke to the girl on duty, returned and the two, plaintiff and Miller, proceeded by motorcycle through the raised barrier along the mountain drive to the parking lot. After waiting about 45 minutes, plaintiff testified that he received instructions pursuant to which he carried first aid equipment and rope down to the fissure into which Shawcross had fallen. On a second trip, plaintiff testified he carried a stretcher and additional equipment, assisted a nurse and eventually helped carry Shawcross, on the stretcher, to the ambulance. Once the rescue was completed, plaintiff and Miller returned to the motorcycle, resumed the riding position as previously described and, following the road traveled on earlier, left the parking area at what plaintiff estimated to be a speed of 20--30 miles per hour. It was now 9:30 or 10:00 p.m. As the motorcycle approached a curve, plaintiff testified that it hit a series of holes, went out of control, slipped from one side of the road to the other and threw both driver and passenger out onto rocks. Plaintiff testified that he had been a summer resident of Cragsmoor for the past 16 years, had been to Ice Caves Mountain several times, that he had a 1972 season's pass but had been there only once before during that summer.

Defendant William Miller's testimony as to the day's events was similar to that of plaintiff. He also testified to having a season's pass, to making frequent trips up the mountain and to knowing the area 'like the back of my hand.' Miller related his conversation with Annette Ballentine, the girl on duty in the tollhouse, stating that when he told her that he was going up to help with the rescue, she answered, 'Don't. They have enough help.' To that Miller testified he responded 'something like, 'I am going up anyway. I don't think there is enough help. I could help anyway. '' Annette Ballentine's recollection of the events differed from that of plaintiff and Miller in that, although the substance of the conversation was the same, she testified that Miller had driven his motorcycle through the open doors and into the gift shop where she was on duty. Both Miller and his passenger remained seated on the cycle during the conversation and, at its end, after her admonition not to go up, Miller backed the motorcycle out of the shop and proceeded through the space in the gate, which she testified was not raised to permit vehicles to pass through, but lowered. This witness also testified that after learning of the Shawcross accident and prior to plaintiff's arrival she had telephoned her boss, Fred Grau, as well as the Ellenville Rescue Squad, the Cragsmoor Fire Department and the State Police. As the summoned rescuers arrived, the witness explained that she pushed the button which raised the gate, permitting them into the premises. Although the practice may not have been always followed, there was testimony that visitors with season passes were required to stop and sign in at the gatehouse.

Fred Grau, president of Ice Caves Mountain, Inc., testified that after learning of the accident he came to the scene to direct the rescue operation but permitted the fire department to take over when the fire chief arrived with approximately 20 men. When Miller drove into the parking lot, Grau told him to move as he, Miller, had placed his cycle in the spot reserved for the ambulance.

Ralph Stedner, chief of the Cragsmoor Volunteer Fire Department, testified that of the 13 men who responded to the emergency, 8 were used and the rest sent back to the firehouse as they were not needed. The witness could recall Grau as the only 'civilian' helping and, in response to questions by the court, Stedner testified that he tried to keep all of the volunteer civilians back because even though they wanted to help, they did not know what to do.

While there was additional testimony, the foregoing suffices for this review. The court charged the jury to the effect that the plaintiff's status on the mountain was determinative of the duty of care owed to him by the defendant Ice Caves Mountain. The court described the status and commensurate duties in this fashion:

'With respect to the Ice Caves Mountain, now we get into his status on the mountain. You have three options that you can find. You can find that when he was up on that mountain, he was a trespasser. That is, that he had no right to be there. If you find that he was a trespasser without any right to be on that mountain, then the duty of the people who operated Ice Caves Mountain is not to do any willful or wanton or aggressive act with respect to his safety, and I am telling you now that as a matter of law, if you find that Basso was a trespasser on that night, September 3, 1972, he cannot recover against Ice Caves Mountain * * *

'The second thing that he could have been is equivalent to a quest. That is, that he went up to the mountain to watch what was going on and that against the wishes of Miss Ballentine, under instructions from her superiors and that when he got up there, instead of being thrown out, his presence was accepted as a mere watching, as a mere observing of what was going on. In that case, Ice Caves Mountain had a duty to him which was to make sure that if there were any dangerous conditions existing on the roadway that they should let him know. In other words, they owed him some duty not to let him get harmed because of a dangerous condition which existed on the mountain, to advise him of the conditions that may have caused him harm. That is, if he was a mere guest.

'Your third option is that if he was there for the business of the Ice Caves Mountain, that is--and the third option, there are two ways that he could have been there under the business of Ice Caves Mountain; one is that he was there as a patron; he had a season pass and he was entitled--if you believe that he had a season pass, if you believe that he had a season pass, he could have been up there as an observer under the season pass which entitled him to the use of the roadways or he could have been a rescuer helping in the rescue of Mr. Shawcross, which is the business of Ice Caves Mountain. That is, if somebody gets trapped in a crevice on Ice Caves Mountain, getting him out of there is the business of Ice Caves Mountain, and anybody who is there in assisting in that rescue is doing it for the business of Ice Caves Mountain and in those two circumstances, whether he was legally there as a patron of Ice Caves Mountain or as a rescuer, then the duty owed to him is a little bit more than for the other two. Then the duty is to act--then the duty is to keep the premises in a reasonably safe condition so as to prevent anybody lawfully on the premises from becoming injured. They were under a duty to exercise reasonable care to keep the premises in a reasonably safe condition for the use of a person such as the plaintiff coming on the premises.'

Ice Caves Mountain took exception to the charge as to duty owed to a social guest or, as more frequently denominated, a licensee, claiming it placed too great a duty upon it. Ice Caves contends, and correctly so, that the New York standard has been that as a licensee a plaintiff must take the premises as he finds them, and that the owner thereof is liable only if he is found to have committed affirmative acts of negligence or if a trap existed or there was concealed danger not likely to be discovered (Krause v. Alper, 4 N.Y.2d 518, 176 N.Y.S.2d 349, 151 N.E.2d 895; Levine v. Barfus, 28 A.D.2d 896, 282 N.Y.S.2d 23). There is only a duty to warn of known dangerous defects which the defendant 'should know or suspect that the licensee will not discover himself after a reasonable inspection of the premises' (Velez v. City of New York, 45 A.D.2d 887, 358 N.Y.S.2d 18).

Based on the charge as given, the jury returned a verdict for plaintiff, on the issue of liability, and made an apportionment whereby 60% Of the verdict was to be borne by defendant Miller and 40% By defendant Ice Caves Mountain. Both defendants appealed from the interlocutory judgment of liability and apportionment. Although the Appellate Division unanimously affirmed, it granted both defendants leave to appeal, certifying the following question: 'Was the order of this court dated March...

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