Farnham v. Kittinger

• Decision Date: 30 March 1994
• Citation: 634 N.E.2d 162,83 N.Y.2d 520,611 N.Y.S.2d 790
• Court: New York Court of Appeals Court of Appeals
• Parties: , 634 N.E.2d 162 Timothy J. FARNHAM, Appellant, v. Aaron L. KITTINGER, et al., Defendants, and Norfolk & Western Railway Company et al., Respondents. Stephen A. COBB, Appellant, v. Aaron L. KITTINGER, et al., Defendants, and Norfolk & Western Railway Company et al., Respondents.

Page 790

611 N.Y.S.2d 790

83 N.Y.2d 520, 634 N.E.2d 162

Timothy J. FARNHAM, Appellant, v. Aaron L. KITTINGER, et al., Defendants, and Norfolk & Western Railway Company et al., Respondents.

Stephen A. COBB, Appellant, v. Aaron L. KITTINGER, et al., Defendants, and Norfolk & Western Railway Company et al., Respondents.

Court of Appeals of New York.

March 30, 1994.

David M. Civilette, and Anthony J. Spann, P.C., Dunkirk, for appellants.

Saperston & Day, P.C., Buffalo (Katherine B. Roach and Thomas F. Segalla, of counsel), for Norfolk & Western Ry. Co., respondent.

Bragar & Wexler, P.C., New York City (Raymond A. Bragar, of counsel), and Lustig & Brown, P.C., Buffalo (David Paige, of counsel), for The Penn Cent. Corp. and another, respondents.

OPINION OF THE COURT

BELLACOSA, Judge.

General Obligations Law § 9-103 cloaks landowners with a special immunity against the usual duty to keep designated open spaces reasonably safe for persons who enter to recreate. The key prerequisite favors owners as against users who enter places to engage in statutorily enumerated recreational activities, including by specified motorized vehicle operation. The complementary goals of the statute are to encourage landowners to leave and allow their open lands to be accessible to recreators, the inducement being the special immunity; and to correspondingly withdraw from recreators, as a quid pro quo, their usual right to sue an owner for injuries suffered from failure to keep a place reasonably safe.

In this case, plaintiffs were passengers in a four-wheel-drive, multipurpose vehicle capable of recreational off-road use. They drove onto defendants' property at night purportedly to find a private place to relieve themselves. We conclude that, in this case, factual aspects may be present concerning the recreational intent of the plaintiffs users precluding summary judgment to defendants. Thus, the order of the Appellate Division granting summary judgment to defendants Penn Central Corporation, Norfolk & Western Railway Company, and the Penndel Company, dismissing the complaints based on the statutory immunity should be reversed and the case remitted for further proceedings.

I.

In Chautauqua County, within the Town of Hanover, New York, a cleared right-of-way or access road owned by defendant Penn Central runs parallel to defendant Norfolk & Western's operational railroad line. When Penn Central ceased operation on its line in 1972, it cleared its rail ties from the remaining access road. Norfolk & Western utilizes Penn Central's right-of-way to access its active rail line and denies any ownership to the right-of-way. Years ago, the two railroad lines crossed Dead Creek on supporting steel bridges a few feet apart and about 15 feet above the water. The inactive Penn Central line across the creek, with rail and ties removed, now consists of only a steel frame crossing; Norfolk's functioning line crosses the creek with intact ties and track across its bridge. No car bridge has ever spanned Dead Creek.

On June 28, 1985, shortly after midnight, plaintiffs passengers were driving along Allegheny Road from a bar where they had consumed beer. Plaintiffs Farnham and Cobb, along with driver defendant Kittinger, decided to enter the defendants' right-of-way where it crosses Allegheny Road, apparently to answer nature's call. Kittinger's vehicle is an automobile designed with high clearance and four-wheel-drive features to allow the vehicle to maneuver on unpaved surfaces. It proceeded on the access road for about one-half mile. Suddenly, Kittinger noticed the lack of a suitable bridge for an auto crossing over Dead Creek; he defensively turned left. The vehicle hit a large bump, causing it to veer onto Norfolk's adjacent rail tracks. Ultimately, it flipped over and landed topside in the shallow waters of Dead Creek. Plaintiffs Farnham and Cobb suffered serious injuries and each commenced suit.

Defendants Penn Central, Norfolk & Western and Penndel Company invoked the immunity bar of General Obligations Law § 9-103. Supreme Court rejected their defense in a detailed interpretation of Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 544 N.Y.S.2d 308, 542 N.E.2d 621. Supreme Court agreed with plaintiffs' contention that they were not engaged in "motorized vehicle operation for recreational purposes" and found that the abandoned right-of-way was not suitable for recreational activities. As to the issue concerning malicious creation of a trap, Supreme Court stated that "[t]he evidence [also] demonstrates an issue of fact as to 'willful or malicious' conduct." Supreme Court denied defendants' motions for summary judgment.

The Appellate Division reversed and granted summary judgment in favor of the property owners defendants and dismissed the complaints against them (192 A.D.2d 1062, 596 N.Y.S.2d 240). This Court granted leave to appeal and we now reverse the order of the Appellate Division, deny the motions for summary judgment and remit the case for further proceedings.

The critical determination for the trial court will be whether the plaintiffs' activity falls within the enumerated category of "motorized vehicle operation for recreational purposes" as a matter of fact under the circumstances of this case and its distinctive fact pattern (General Obligations Law § 9-103). We conclude that off-road operation of a noninherently recreational, multipurposed motor vehicle does not automatically constitute "motorized vehicle operation for recreational purposes" within the meaning of General Obligations Law § 9-103. Such an extended view would grant landowners immunity farther than the words and intent of the statute prescribe, and farther than the precise ratio decidendi of Iannotti compels. By like token, however improbable it is to characterize plaintiffs' conduct in these circumstances as recreational, it is incompatible with the complementary purposes of the statute to grant summary judgment precluding as a matter of law the availability of the statutory immunity for the defendants here.

II.

General Obligations Law § 9-103 grants a special immunity to owners, lessees or occupants from the usual duty to keep places safe. When individuals enter or use the property of another in pursuit of one or more of the specified recreational categories, with or without permission from the owner, they do so at their own peril and without potential recourse to sue for damages based on failure of landowners to maintain usual safekeeping measures (General Obligations Law § 9-103[1][a]. That is their part of the statutory bargain, so to speak. Further, the owner has no duty "to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes" (General Obligations Law § 9-103[1][a]. These features strike the balance that the Legislature intended to allow or encourage more people to use more accessible land for recreational enjoyment (L.1956, ch. 842 [predecessor to General Obligations Law § 9-103]. Forty-eight States have recreational use statutes attempting to strike this balance, with varying results (see, e.g., Comment, Wisconsin's Recreational Use Statute: Towards Sharpening the Picture at the Edges, 1991 Wis.L.Rev. 491 [1991]; Butler, Outdoor Sports and Torts: An Analysis of Utah's Recreational Use Act, 1988 Utah L.Rev. 47 [1988].

In New York, however, the 18 uses enumerated in General Obligations Law § 9-103 are essentially self-explanatory. An owner owes no usual duty to keep lands safe for entry and use by others for "hunting, fishing, organized gleaning as defined in section seventy-one-y of the agriculture and markets law, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs" (General Obligations Law § 9-103[1][a]. Thus, recreational wanderers and wonderers partaking of these enumerated activities are owed none of the usual safekeeping duties imposed on owners (see, e.g., Clark v. State of New York, 178 A.D.2d 908, 577 N.Y.S.2d 946; Larini v. Biomass Indus., 918 F.2d 1046; Rains v. United States, 752 F.Supp. 71; Reid v. Kawasaki Motors Corp., 189 A.D.2d 954, 592 N.Y.S.2d 496; Phillips v. Baird, 156 A.D.2d 998, 551 N.Y.S.2d 706, lv. denied 75 N.Y.2d 711, 557 N.Y.S.2d 309, 556 N.E.2d 1116; Wiggs v. Panzer, 187 A.D.2d 504, 589 N.Y.S.2d 591; Dean v. Glens Falls Country Club, 170 A.D.2d 798, 566 N.Y.S.2d 104; Sega v. State of New York, 60 N.Y.2d 183, 469 N.Y.S.2d 51, 456 N.E.2d 1174). Liability against owners is foreclosed in these prescribed recreational instances by operation of the statute.

Unlike its specific counterparts, the more generalized use category of "motorized vehicle operation for recreational purposes" is somewhat more ambiguous or nuanced. We believe that motorized vehicles which are inherently recreational, like motorcycles, minibikes and all-terrain vehicles (L.1971, ch. 343), are largely free of ambiguity under the statute. As we said in Iannotti, "[o]bviously, that the bike was being used for transportation would not mean that its use was not also recreational" (Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 47, 544 N.Y.S.2d 308, 542 N.E.2d 621, supra ).

Many automobiles, on the other hand, in today's marketplace have been developed as multipurpose motorized vehicles for overlapping family, work and recreation. These vehicles are engineered with the capacity to leave paved road surfaces and venture up mountains, into woods and across streams. The person who uses such a vehicle may simply be intrigued with the four-wheel-drive capacity for purposes of handling snow and ice conditions, large pot holes or exciting untraversed side-road vistas. The nature and fast-changing engineering and marketing...