Bowles v. Kawasaki Motor Corp. USA, 1

• Decision Date: 24 April 1992
• Docket Number: No. 2,No. 3,No. 1,1,2,3
• Citation: 179 A.D.2d 299,582 N.Y.S.2d 881
• Parties: Thomas BOWLES, Plaintiff, v. KAWASAKI MOTOR CORPORATION USA, Sam Dell Kawasaki Motors Corp., Inc., Defendants. ActionThomas BOWLES, Appellant-Respondent, v. A. Richard COHEN as Trustee for Sarah Cohen Comstock, F. Eugene Romano, Douglas N. Rice, Sr., Individually and as Trustee for Douglas Rice, Jr., Respondents-Appellants. ActionThomas BOWLES, Appellant-Respondent, v. The TOWN OF WEBB, Respondent-Appellant. Action
• Court: New York Supreme Court — Appellate Division

Page 881

582 N.Y.S.2d 881

179 A.D.2d 299

Thomas BOWLES, Plaintiff, v. KAWASAKI MOTOR CORPORATION USA, Sam Dell Kawasaki Motors

Corp., Inc., Defendants.

Action No. 1.

Thomas BOWLES, Appellant-Respondent, v. A. Richard COHEN as Trustee for Sarah Cohen Comstock, F.

Eugene Romano, Douglas N. Rice, Sr., Individually

and as Trustee for Douglas Rice, Jr.,

Respondents-Appellants.

Action No. 2.

Thomas BOWLES, Appellant-Respondent, v. The TOWN OF WEBB, Respondent-Appellant.

Action No. 3.

Supreme Court, Appellate Division Fourth Department.

April 24, 1992.

John Benjamin Carroll, P.C., Syracuse, for appellant-respondent.

Verner R. Love, Syracuse, for respondents-appellants, A. Richard Cohen, F. Eugene Romano and Douglas Rice.

Schrade & Heinrichs by Donna Heinrichs, Delmar, for respondent-appellant Town of Webb.

Before DENMAN, P.J., and GREEN, PINE and FALLON, JJ.

FALLON, Justice:

Plaintiff was injured on September 23, 1983, when the all-terrain vehicle he was operating struck a log protruding from the surface of a trail on premises owned by the individual defendants (the landowners) and maintained by the Town of Webb (the Town) pursuant to an agreement with the landowners. For a consideration, the Town was granted the right to construct and maintain snowmobile trails on the property and to grant hunting leases for the premises. During the off season, the premises and its trails were used for a variety of recreational purposes unrelated to the agreement including, inter alia, hiking, walking, fishing and biking. Under the agreement, the Town assumed all responsibility for repair and maintenance of the property.

In June of 1983, the Town did some maintenance work on a culvert that cut across a trail in the Rock Hill section of the property. The work consisted of replacing and rearranging logs in the culvert and installing a section of drainage pipe. Because the logs rose above the surface of the trail somewhat, an attempt was made during the repairs to backfill around them with soil. By the time plaintiff's all-terrain vehicle allegedly struck one of these logs some three months later, the soil had washed away, leaving the log protruding some 6"' to 8"' above grade.

After completion of discovery, the Town and landowners moved for summary judgment. They asserted that General Obligations Law § 9-103 affords them immunity from this suit. Supreme Court ruled that the statutory protection afforded by General Obligations Law § 9-103(2)(a) applied to both defendants but denied the motions to dismiss insofar as they were predicated on those actions of defendants which constituted a "willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity" (General Obligations Law § 9-103[2][a].

Supreme Court properly determined that General Obligations Law § 9-103 applies to both defendants. There is no merit to plaintiff's assertion that the protection afforded by the statute does not apply here because the property was being operated by the Town as a public park. While this section has consistently been construed as not providing immunity to a governmental entity for injuries sustained by one using park facilities (see, Ferres v. City of New Rochelle, 68 N.Y.2d 446, 510 N.Y.S.2d 57, 502 N.E.2d 972; O'Keefe v. State of New York, 104 A.D.2d 43, 481 N.Y.S.2d 920), the property upon which plaintiff was injured was not a public park. It was not owned by the Town and it was only minimally maintained and supervised by it. Moreover, its supervision and maintenance related solely to the snowmobiling activity permitted by its agreement with the landowners. There is no evidence that either the Town or the landowners would have been willing to open these lands but for the protection of the statute (see, O'Keefe v. State of New York, supra, at 47, 481 N.Y.S.2d 920). As a result, enhanced recreational opportunities not previously available were opened to the public.

Equally without merit is plaintiff's further claim that the Town may not avail itself of the protection afforded by General Obligations Law § 9-103 because it was not the "owner, lessee, or occupant of the premises". That section does not define the word "occupant". The agreement here, although designated a license, has many characteristics of a lease. It has a stated term, it calls for the payment of basic rent and additional rent, it contains indemnity and insurance provisions, and it imposes upon the Town all responsibility for the maintenance and repair of the premises. Although the Town's use of the premises is limited by the agreement, it is nonetheless granted the sole and exclusive right to use the premises to conduct snowmobiling activities, including the construction and maintenance of the trails to carry on those activities. The landowner reserved only the right to remove lumber from the premises and the right to traverse the snowmobile trails in the process, provided it did so without impairing or endangering the Town's use of the trail. Based on the nature of the Town's use and possession of the property, we conclude that the Town was at least an occupant, if not a lessee, of the property for purposes of General Obligations Law § 9-103.

Also without merit is the further claim advanced by plaintiff that the consideration paid by the Town to the landowners and that paid to the Town by snowmobile permit holders takes this case outside the statute by reason of the exclusion in General Obligations Law § 9-103(2)(b). That provision exempts the premises from the protection of the statute "for injury suffered in any case where permission to pursue any of the activities enumerated in this section was granted for a consideration" (General Obligations Law § 9-103[2][b]. Here, plaintiff was using the premises free of charge. There was no nexus between the consideration paid to the Town by the snowmobile permit holders or the consideration paid by the Town to the landowners and the activities being engaged in by plaintiff on the premises during the off-season (see, Schoonmaker v. Ridge Runners Club 99, 119 A.D.2d 858, 860, 500 N.Y.S.2d 562, appeal dismissed 68 N.Y.2d 807, 506 N.Y.S.2d 1037, 498 N.E.2d 437). The...