Coote v. Niagara Mohawk Power Corp.
| Decision Date | 30 December 1996 |
| Citation | 651 N.Y.S.2d 799,234 A.D.2d 907 |
| Parties | Mary Ruth COOTE, an Infant, and George Coote and Antonia Coote, Her Parents, Appellants, v. NIAGARA MOHAWK POWER CORPORATION, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Donald R. Gerace, Utica, for Appellants.
Thomas J. Murphy, Syracuse, for Respondent.
Before GREEN, J.P., and PINE, CALLAHAN, DOERR and DAVIS, JJ.
On April 1, 1981, plaintiffs' daughter, then a 17-year-old senior in high school, skipped school on "senior skip day" and went with her classmates to a class party at Trenton Falls Gorge. The gorge is on property owned by defendant, Niagara Mohawk Power Corporation (NIMO), which operates a hydro station on another portion of the property. The gorge is a scenic area and attracts visitors despite NIMO's efforts to keep trespassers away. Plaintiffs' daughter and her classmates had climbed down a steep rocky path into the gorge and were drinking beer, eating snacks and listening to music. NIMO employees became aware of the presence of trespassers in the gorge and told two students to convey to their classmates the message that they must leave or be subject to arrest for trespass. As plaintiffs' daughter climbed up the rocky path to leave the gorge, she lost her footing and fell, sustaining serious injuries.
Plaintiffs commenced this action against NIMO alleging that NIMO was negligent in failing to warn their daughter of a dangerous condition and in failing to fence off or otherwise prevent access to the gorge. NIMO moved for summary judgment dismissing the complaint on the ground that it was immune from liability for negligence pursuant to General Obligations Law § 9-103. NIMO argued in the alternative that it owed no duty to plaintiffs' daughter to provide warnings or to fence in the gorge. Supreme Court concluded that, at the time she sustained injuries, plaintiffs' daughter was hiking, one of the recreational activities enumerated in General Obligations Law § 9-103(1)(a). The court further concluded as a matter of law that NIMO's conduct was neither willful nor malicious (see, General Obligations Law § 9-103[2][a] ) and that NIMO was entitled to immunity from liability for negligence pursuant to General Obligations Law § 9-103(1)(a).
We agree with plaintiffs that the court erred in concluding as a matter of law that their daughter was engaged in hiking (see, Gough v. County of Dutchess, 167 Misc.2d 568, 638 N.Y.S.2d 290; Guillet v. City of New York, 131 Misc.2d 578, 500 N.Y.S.2d 946). We conclude that the complaint was properly dismissed, however,...
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