King v. Cornell Univ.

• Decision Date: 17 July 2014
• Citation: 119 A.D.3d 1195,990 N.Y.S.2d 329,2014 N.Y. Slip Op. 05393
• Parties: Steven KING et al., as Coadministrators of the Estate of Khalil Jamal Godfrey King, Deceased, Respondents, v. CORNELL UNIVERSITY, Appellant.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 1195

990 N.Y.S.2d 329

2014 N.Y. Slip Op. 05393

Steven KING et al., as Coadministrators of the Estate of Khalil Jamal Godfrey King, Deceased, Respondents,

v.CORNELL UNIVERSITY, Appellant.

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

July 17, 2014.

Nelson E. Roth, Cornell University, Ithaca, for appellant.

Leland T. Williams, Rochester, for respondents.

Before: PETERS, P.J., ROSE, EGAN JR., LYNCH and DEVINE, JJ.

LYNCH, J.

Appeal from an order of the Supreme Court (Rumsey, J.), entered August 16, 2013 in Tompkins County, which denied defendant's motion for summary judgment dismissing the complaint.

On August 28, 2010, decedent, a 19–year–old sophomore at defendant, fell to his death in a gorge on campus. Plaintiffs, who are decedent's parents, commenced this action against defendant to recover damages for negligence. Defendant answered and, after limited discovery, moved for summary judgment dismissing the complaint, arguing that it was immune from liability pursuant to General Obligations Law § 9–103 and, alternatively, not negligent as a matter of law. Recognizing that decedent's status as a student does not preclude application of the statute ( see Weller v. Colleges of the Senecas, 217 A.D.2d 280, 285, 635 N.Y.S.2d 990 [1995] ), Supreme Court denied the motion in a thorough, well written decision (41 Misc.3d 451, 973 N.Y.S.2d 534 [2013] ). Defendant now appeals.

We affirm. The circumstances leading up to decedent's tragic fall, as described by his classmate, Damani Carter, are not disputed. At approximately 3:30 a.m., the two students were walking to a fraternity house on campus. Carter described decedent as intoxicated, and others indicated that he may have smoked marihuana earlier in the evening. As they walked, decedent motioned for Carter to back up and then decedent ran toward Carter, quietly saying “run, run.” Not knowing why decedent gave this direction, Carter started to run and decedent passed him as they entered the gorge trail behind “the Fiji fraternity.” When Carter came to an opening in the trail, he stopped and called for decedent to do the same, but decedent continued on. Minutes later, Carter called decedent on his cell phone, but there was no response. The next day, decedent's body was found below the cliff bordering the trail where Carter last saw him. The City of Ithaca Police Department investigatedand determined that decedent had crossed over a split rail fence that ran along the trail in order to get to the cliff's edge.

Defendant maintains that it is shielded from liability by General Obligations Law § 9–103(1)(a), which, as pertinent here, “grants a special immunity to owners ... from the usual duty to keep places safe” when individuals use their property for specified recreational activities, including hiking ( Farnham v. Kittinger, 83 N.Y.2d 520, 525, 611 N.Y.S.2d 790, 634 N.E.2d 162 [1994] ). The enumerated activities covered under the statute “are essentially self-explanatory” ( id. at 526, 611 N.Y.S.2d 790, 634 N.E.2d 162). “Hiking” has been described as “traveling through the woods on foot” ( Sega v. State of New York, 60 N.Y.2d 183, 193, 469 N.Y.S.2d 51, 456 N.E.2d 1174 [1983] ) and as “traversing land ‘by foot or snowshoe for the purpose of pleasure or exercise’ ” ( Cometti v. Hunter Mtn. Festivals, 241 A.D.2d 896, 897, 660 N.Y.S.2d 511 [1997], quoting 6 NYCRR 197.2[a] ). Comparatively, this Court recently determined that a person walking her dogs on a paved walkway was not engaged in “hiking” under the statute ( see Drake v. Sagbolt, LLC, 112 A.D.3d 1132, 1134, 977 N.Y.S.2d 131 [2013] ). With one exception not applicable here, a person engaged in one of the enumerated activities is “presumed to be doing so for recreational purposes” without regard to his or her subjective intent (Bragg v. Genesee County Agric. Socy., 84 N.Y.2d 544, 552 n. 3, 620 N.Y.S.2d 322, 644 N.E.2d 1013 [1994];see Farnham v. Kittinger, 83 N.Y.2d at 527–528, 611 N.Y.S.2d 790, 634 N.E.2d 162;Cometti v. Hunter Mtn. Festivals, 241 A.D.2d at 897, 660 N.Y.S.2d 511).

The critical determination is whether decedent's activity constituted “hiking” under the statute. As described, he ran down the gorge trail and, in that literal sense, was “traveling through the woods on foot,” or “hiking,” as defined in Sega v. State of New York, 60 N.Y.2d at 193, 469 N.Y.S.2d 51, 456 N.E.2d 1174. The statute, however, speaks to specified recreational categories reflecting the intent of the Legislature “to allow or encourage more people to use more accessible land for recreational enjoyment” ( Farnham v. Kittinger, 83 N.Y.2d at 525, 611 N.Y.S.2d 790, 634 N.E.2d 162;see Sena v. Town of Greenfield, 91 N.Y.2d 611, 615, 673 N.Y.S.2d 984, 696 N.E.2d 996 [1998];Albright v. Metz, 88 N.Y.2d 656, 661–662, 649 N.Y.S.2d 359, 672 N.E.2d 584 [1996] ). Viewing the facts in the light most favorable to plaintiffs, the nonmoving party, we agree with Supreme Court that, under the distinctive fact pattern presented, defendant did not establish, as a matter of law, that decedent was “hiking” within the embrace of General Obligations Law § 9–103(1)(a) at the time of his death ( see Farnham v. Kittinger, 83 N.Y.2d at 525, 527–528, 611 N.Y.S.2d 790, 634 N.E.2d 162). Consequently, the court properly denied this aspect of defendant's motion.

Next, defendant maintains that since the dangers of the gorge are open and obvious, it had no duty to warn decedent of any hazards and that all reasonable measures to maintain the property in a safe condition had been taken. A landowner is required to both maintain its property in a reasonably safe condition and “to warn of a latent, dangerous condition of which the landowner is or should be aware” ( Soich v. Farone, 307 A.D.2d 658, 659, 763 N.Y.S.2d 168 [2003] ). The duty to warn does not extend to the open and obvious dangers of natural geographic phenomena ( see Cohen v. State of New York, 50 A.D.3d 1234, 1235, 854 N.Y.S.2d 253 [2008],lv. denied10 N.Y.3d 713, 861 N.Y.S.2d 274, 891 N.E.2d 309 [2008];Tarricone v. State of New York, 175 A.D.2d 308, 310, 571 N.Y.S.2d 845 [1991],lv. denied78 N.Y.2d 862, 576 N.Y.S.2d 220, 582 N.E.2d 603 [1991];see also Freese v. Bedford, 112 A.D.3d 1280, 1281, 977 N.Y.S.2d 814 [2013];Arsenault v. State of New York, 96 A.D.3d 97, 101, 946 N.Y.S.2d 276 [2012];Walter v. State of New York, 185 A.D.2d 536, 538, 586 N.Y.S.2d 391 [1992] ). While generally a question of fact, “[f]or a condition to be open and obvious as a matter of law, it must be one that could not be overlooked by any observer reasonably using his or...