Elwood v. Alpha Sigma Phi

• Decision Date: 07 May 2009
• Docket Number: 506027.
• Citation: 878 N.Y.S.2d 499,62 A.D.3d 1074,2009 NY Slip Op 03659
• Parties: PATRICK ELWOOD, Individually and as Administrator of the Estate of SCOT ELWOOD, Deceased, et al., Respondents, v. ALPHA SIGMA PHI, IOTA CHAPTER OF ALPHA SIGMA PHI FRATERNITY, INC., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

62 A.D.3d 1074

878 N.Y.S.2d 499

2009 NY Slip Op 03659

PATRICK ELWOOD, Individually and as Administrator of the Estate of SCOT ELWOOD, Deceased, et al., Respondents, v. ALPHA SIGMA PHI, IOTA CHAPTER OF ALPHA SIGMA PHI FRATERNITY, INC., et al., Appellants.

506027.

Appellate Division of the Supreme Court of New York, Third Department.

May 7, 2009.

Appeal from an order of the Supreme Court (Mulvey, J.), entered April 3, 2008 in Tompkins County, which partially denied defendants' motion for summary judgment dismissing the complaint.

ROSE, J.

Plaintiffs commenced this wrongful death action after their son (hereinafter decedent), a sophomore at Cornell University, fell to his death in a gorge near a fraternity house owned by defendant Alpha Sigma Phi, Iota Chapter (hereinafter defendant) in the City of Ithaca, Tompkins County. Before he fell, decedent had been drinking heavily and, with his friend Ryan Bridge, attempted to find his way to a party at a different Cornell fraternity house. They drove by two signs indicating that the street they were on was for local traffic only because the bridge over the nearby gorge was closed. Although they were neither members nor guests of defendant, they then turned into defendant's private driveway, drove to its parking lot and parked illegally in a fire lane. Decedent and Bridge got out of their vehicle and stood conferring in the parking lot directly in front of defendant's fraternity house. It was after 10:00 P.M. and there was no party or other event going on there. When Benjamin Dewitt, one of defendant's members, saw them and questioned their presence, they did not respond. Instead, they turned and walked away out of sight down a sloping, unlit stone pathway that ran along the side and to the rear of the house. After stepping inside the house to yell for assistance because he feared the intruders were vandals, Dewitt followed them, heard a crash and then came upon Bridge standing alone near the pathway. Defendant had previously installed a five-foot-high split-rail fence on its premises to separate the pathway from the nearby gorge. Although there was no gate or gap in the fence and no pathway beyond it to the gorge, decedent had crossed to the other side, proceeded in the dark about six feet through foliage that obscured the edge of the gorge and, tragically, fallen 80 feet to his death. When Dewitt arrived at Bridge's location, the fence was still intact. Later, decedent's blood alcohol content was found to be .26%.

In their complaint, plaintiffs allege that defendants were negligent in maintaining the premises by, among other things, failing to adequately warn and guard against the danger of persons falling into the gorge. Following discovery, defendants moved for summary judgment dismissing the complaint on the grounds that they owed no duty to decedent because the gorge was an open and obvious natural hazard, decedent was a trespasser whose presence was unforeseeable and decedent's intoxication was a superseding cause of his fall.^* Supreme Court found a question of fact as to each ground and denied the motion as to defendant, prompting this appeal. While we agree that questions of fact preclude summary judgment on the other grounds of defendant's motion, we find no record evidence that it was foreseeable that decedent would trespass on defendant's private property, cross to the far side of its fence and fall into the gorge.

A property owner's obligation to maintain its property in reasonably safe condition is measured by foreseeability (see Basso v Miller, 40 NY2d 233, 241 [1976]), and "no liability arises where the injured party's presence on the property is not reasonably foreseeable" (Bracci v Roberts, 217 AD2d 897, 897 [1995]; see Scurti v City of New York, 40 NY2d 433, 442 [1976]; DeMarrais v Swift, 283 AD2d 540, 541 [2001]; Baczkowski v Zurn, 235 AD2d 894, 895 [1997]). As relevant here, "the likelihood of one entering without permission depends on the facts...