Fenton v. Consolidated Edison Co. of New York, Inc.

• Citation: 566 N.Y.S.2d 227,165 A.D.2d 121
• Parties: Roger FENTON, Plaintiff-Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant-Appellant, and North Star Electrical Contracting Corp., Defendant. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third-Party Plaintiff, v. NORTH STAR ELECTRICAL CONTRACTING CORP. and Town of Yorktown, Third-Party Defendants.
• Decision Date: 14 February 1991
• Court: New York Supreme Court Appellate Division

Page 227

566 N.Y.S.2d 227

165 A.D.2d 121

Roger FENTON, Plaintiff-Respondent, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant-Appellant, and North Star Electrical Contracting Corp., Defendant.

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third-Party Plaintiff, v. NORTH STAR ELECTRICAL CONTRACTING CORP. and Town of

Yorktown, Third-Party Defendants.

Supreme Court, Appellate Division,

First Department.

Feb. 14, 1991.

DeBlasio & Alton, P.C., and Alexander J. Wulwick, New York City, for plaintiff-respondent.

Joseph Scibilia, of counsel (Joan M. Faley with him on the brief, Deegan & Scibilia, attorneys, Hempstead), for defendant-appellant.

Before SULLIVAN, J.P., and CARRO, WALLACH and RUBIN, JJ.

SULLIVAN, Justice.

On August 29, 1982, plaintiff, then 27 years of age, was seriously injured when, while riding his motorbike along a dirt access road in the Town of Yorktown on a right-of-way owned by Con Edison, he was thrown from the bike when it struck a ditch, one of many placed in the road by Con Edison to prevent erosion.

The dirt access road, approximately a car width wide, runs along the right-of-way, a 200-foot wide strip of land, which runs for 40 miles from Pleasant Valley in Westchester County to Millwood in Dutchess County, under two overhead electrical transmission lines strung from towers located along the right-of-way, and provides Con Edison's employees with access to the lines. Con Edison had drainage ditches, known as water bars or swales, placed in the access road to channel the flow of water into side ditches, thereby preventing erosion and wash-outs.

The particular portion of the roadway on which plaintiff was riding at the time of the accident, located about one-half mile from the local high school, was a popular recreational site, used as a bike trail. It is undisputed that Con Edison knew, prior to the date of the accident, that the portion of the access road in question was used as a motorbike trail.

According to plaintiff, the accident occurred a few seconds after he had navigated a curve in the roadway; he was traveling at about 25 miles per hour when he suddenly saw a ditch, at least two feet wide, wider at the left side, running across the entire width of the road. Plaintiff applied both brakes but hit the ditch at the wider side on the left. He was thrown from the bike, striking the ground with his head.

In his subsequently commenced action seeking both compensatory and punitive damages, plaintiff alleged negligence on Con Edison's part in the maintenance and repair of the roadway, the condition of which, he maintained, constituted a trap. After joinder of issue, Con Edison moved for summary judgment dismissal of the complaint, claiming that the action is barred by General Obligations Law § 9-103, which grants property owners immunity from liability for ordinary negligence arising out of the use of their property for certain specified recreational activities, including motorbiking, unless the property owner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure or activity. ¹

In opposing the motion, plaintiff argued that issues of fact existed as to whether the roadway on which the accident occurred was suitable and appropriate for motorbiking and whether Con Edison acted willfully or maliciously in failing to guard or warn against the hazards posed by the ditches situated thereon. The IAS court expressly rejected plaintiff's argument that the roadway was neither conducive to motorbiking nor appropriate for public use for that activity but denied the motion nonetheless on the narrow ground that there was "a question as to whether [Con Edison], having created a ditch to prevent erosion, was guilty of 'willful or malicious failure to guard, or [to] warn against, a dangerous condition'." Con Edison appeals but only from "that portion of [the] order denying [its] motion for summary judgment." We reverse, grant summary judgment and dismiss the complaint.

On appeal, plaintiff argues, as it did before the IAS court, that General Obligations Law § 9-103 is inapplicable because the access road was neither conducive to motorbiking nor appropriate for public use for that activity. On a procedural point, we reject Con Edison's claim that the issue is not before us because plaintiff did not cross-appeal from the court's ruling, which was adverse to him on that point. Plaintiff could not appeal from the denial of summary judgment dismissing the complaint because he was not an aggrieved party. (See, CPLR 5511; Parochial Bus Systems v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 544-545, 470 N.Y.S.2d 564, 458 N.E.2d 1241.) Furthermore, the fact that Con Edison limited the scope of its appeal is of no moment since plaintiff is entitled to have the determination affirmed on any ground he properly raised before the IAS court. (See, Murray, Hollander, Sullivan & Bass v. HEM Research, 111 A.D.2d 63, 66, 489 N.Y.S.2d 187.)

In our view, the IAS court correctly determined that the roadway in question was suitable and appropriate for recreational motorbiking. In Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 544 N.Y.S.2d 308, 542 N.E.2d 621, the plaintiff, who had ridden a motorized trail bike on a stone and dirt right-of-way used by railroad workers as an access road for purposes of maintaining the railroad tracks alongside of which it ran, was injured when he was thrown from his motorbike after it had struck a pile of stone. In granting summary judgment dismissing the complaint, the Court of Appeals rejected the notion that the defendant's commercial use of the right-of-way barred the application of General Obligations Law § 9-103, the availability of which, it held, depends upon the suitability and appropriateness of the premises for the recreational uses stated in the statute: the plurality held that the property must be of a type "which is not only physically conducive to the particular activity or sport but ... also ... appropriate for public use in pursuing the activity as recreation." (Id. at 45, 544 N.Y.S.2d 308, 542 N.E.2d 621.) It further found that applying section 9-103 to the right-of-way, which was physically amenable to public use for a number of recreational activities, would be consistent with the statute's underlying purpose of inducing landowners, "who might otherwise be reluctant to do so for fear of liability" (id. at 43, 544 N.Y.S.2d 308, 542 N.E.2d 621, quoting Ferres v. City of New Rochelle, 68 N.Y.2d 446, 451, 510 N.Y.S.2d 57, 502 N.E.2d 972), to make their property accessible to the public for recreational use. (Id. 74 N.Y.2d at 46-47, 544 N.Y.S.2d 308, 542 N.E.2d 621.)

The facts here are essentially identical to those in Iannotti. Although plaintiff testified that he had never before ridden on the particular stretch of access roadway where the accident occurred, he had, prior to the date of the accident, operated his motorbike on other locations along the roadway. In fact, he had earlier that day ridden on the same access road in the vicinity of the high school. His riding companion that fateful day testified that "a lot of people" use the access road, which is "the kind of trail that dirtbikers like." Both plaintiff and his companion testified to the presence of a third rider on the trail on the date of the accident. In addition, Con Edison's project manager testified that on two or three occasions in the year prior to the accident he observed bike riders on the access road riding in groups of two or three at a time. Since, as is apparent from this record, Con Edison's right-of-way access road was suitable for the particular activity in which plaintiff was engaged, off-road motorbiking, and appropriate for such use by the public, the Iannotti test for section 9-103 immunity is satisfied.

Plaintiff argues that the access roadway was dangerous and, therefore, neither physically conducive to motorbiking nor appropriate for the public's use in pursuing motorbiking as a recreational activity. The presence of a dangerous condition, however, has never been adopted as the test for suitability or appropriateness. In Iannotti, where, as noted, the plaintiff, in riding a trail bike along a stone and dirt right-of-way, struck a pile of ballast, thereby injuring himself, the Court of Appeals defined the test for determining suitability and appropriateness for a particular recreational use as whether the property can be so used and whether it is appropriate for the public's use in pursuing such activity. As noted in the concurring opinion in Iannotti, "It is not clear what physical attributes of the property will render it inappropriate for a given use. I assume that it must be something other than a dangerous condition or else the statute will never be applicable in the very situation it was designed to address--where an injury is caused by a dangerous condition on the land." (Id. at 49, 544 N.Y.S.2d 308, 542 N.E.2d 621 [Wachtler, Ch. J.] Likewise, in Sega/Cutway v. State of New York, 60 N.Y.2d 183, 469 N.Y.S.2d 51, 456 N.E.2d 1174, the danger which the landowner created by stringing up between fence posts an almost hidden cable that struck the claimant, riding an all-terrain vehicle, did not render the premises unsuitable or inappropriate so as to deny the landowner the protection of section 9-103. (See, also, Gardner v. Owasco Riv. Ry., 142 A.D.2d 61, 534 N.Y.S.2d 819, app. den., 74 N.Y.2d 606, 544 N.Y.S.2d 820, 543 N.E.2d 85.)

Plaintiff also argues that since the access road "is regularly used by Con Edison employees for a variety of inspection, repair and maintenance purposes, which are dangerously inconsistent with its use by the public for motorized vehicle operation", it is not appropriate for public use. It should be noted that this accident occurred on a Sunday and, as is conceded, no construction activity was taking place on that day. Nor is there any evidence that hazardous construction was, at any time...