Larini v. Biomass Industries, Inc.

• Decision Date: 13 November 1990
• Docket Number: No. 186,D,186
• Citation: 918 F.2d 1046
• Parties: Keith LARINI and Sally Larini, Plaintiffs-Appellants, v. BIOMASS INDUSTRIES, INC., Defendant-Appellee. ocket 90-7361.
• Court: U.S. Court of Appeals — Second Circuit

Page 1046

918 F.2d 1046

Keith LARINI and Sally Larini, Plaintiffs-Appellants, v. BIOMASS INDUSTRIES, INC., Defendant-Appellee.

No. 186, Docket 90-7361.

United States Court of Appeals Second Circuit.

Argued Sept. 21, 1990.

Decided Nov. 13, 1990.

Abby J. Resnick, New York City (Sullivan & Liapakis, P.C., New York City, Jay W. Danker and Stephen C. Glasser of counsel), for plaintiffs-appellants.

Alan J. Pierce, Syracuse, N.Y. (Hancock & Estabrook, Syracuse, N.Y., Bruce G. Soden, of counsel), for defendant-appellee.

Before OAKES, Chief Judge, MESKILL, Circuit Judge, and RESTANI, Judge. ^*

RESTANI, Judge:

Appellants, Keith Larini and Sally Larini ("appellants"), appeal from an order granting summary judgment entered in the United States District Court for the Northern District of New York, dated March 16, 1990. Appellants seek reversal of dismissal of their action to recover damages for personal injuries sustained by Keith Larini ("Larini") on March 1, 1986, when he was injured while operating a snowmobile on property owned by appellee, Biomass Industries, Inc. ("appellee").

In granting appellee's Motion for Summary Judgment, the district court held that the New York General Obligations Law

                Sec. 9-103 (the "Statute") applies to the accident at issue. 1   The statute provides owners of certain recreational property immunity from liability to others for personal injuries, with three exceptions.  The general applicability of the statute and the first two of its exceptions are at issue. 2
                

FACTS

On February 19, 1980, appellee purchased approximately nine hundred acres of sparsely populated wilderness in Windham, New York. In 1982, appellee subdivided the property and made limited improvements to Lake Road, a roadway running perpendicular to a downhill egress stream. As part of the improvements appellee placed a large pipe under Lake Road in order to permit drainage from the adjacent pond to flow under the roadway into the stream bed on the other side. Placement of this drainage pipe evidently created a channel or stream bed approximately seven to nine feet below the level of Lake Road.

Following the subdivision and the improvements, the area was named "Windham Lakes" and a segment of the property was offered for sale to the general public. Prior to March 1, 1986, Larini looked at and was informed of the availability of lots in Windham Lakes by the Judith Higgins Realty Office of Windham, New York, which also provided him with a site plan and price quotations.

On the evening of March 1, 1986, Larini went snowmobiling alone, ostensibly to inspect a particular lot in Windham Lakes that he was interested in purchasing. Appellant had not spoken to either a real estate agent or a representative of appellee about viewing the property that evening. Larini entered the Windham Lakes subdivision at dusk. The front headlights of the snowmobile were turned on, illuminating approximately 75 to 100 feet in front of the vehicle. As Larini was traveling along Lake Road he decided to veer off the roadway at or just below the hill crest leading down to the drainage ditch and stream bed. When he drove his snowmobile downhill into the stream bed, Larini was catapulted across the stream bed, striking the far embankment. Appellant Larini sustained serious personal injuries in the incident.

Appellee had not given Larini either written or oral permission to travel on Lake Road. Moreover, the roadway was unplowed, posted with "No Trespassing" signs and blocked by both a metal gate and a wall of snow approximately four to six feet high, extending the entire width of the roadway.

DISCUSSION

New York General Obligations Law Sec. 9-103 was originally enacted as part of the former Conservation Law. See Conservation Law Sec. 370, as added by L.1956, ch. 842, McKinney's Session Laws of New York. The Memorandum of the Joint Legislative Committee on Revision of the Conservation Law cites the "posting of private premises so as to exclude sportsmen and trappers" as a major problem in the management and use of wildlife resources of New York, and concludes that one reason for such posting is the fear on the part of the owners that they may be exposed to liability for injuries suffered on their premises by persons whom they permit to enter for hunting, fishing or trapping. Memorandum of Joint Legislative Committee on Revision of the Conservation Law, McKinney's Session Laws of New York, 1956, at 1943. The Memorandum also reiterates what the statute expressly states, that is, that the statute applies to property "whether or not posted." Id. Over the years, the legislature expanded the reach of the statute by adding other recreational pursuits to the list of specified activities. See e.g., L.1965, ch. 367 (hiking added), L.1966, ch. 886 (horseback riding added), L.1968, ch. 7 (snowmobiling added). The New York courts, in turn, have interpreted the scope of the statute broadly. Currently the statute applies to a wide range of activities and types of properties and, as the Court of Appeals observed in Iannotti v. Consolidated Rail Corp., 74 N.Y.2d 39, 44-45, 542 N.E.2d 621, 623, 544 N.Y.S.2d 308, 310 (1989), "[the] original restricted reach of the statute has ... been altered (citations omitted)."

1. Applicability of Statutory Immunity

Appellants argue that the basic statutory immunity is inapplicable here for two reasons. First, appellants contend that because the legislative intent in enacting the statute was to encourage landowners to make their property available for certain recreational activities, the attempts made by appellee to prevent the public from entering the property negate the purpose of the statute. It may be concluded that the posting of "No Trespassing" signs and the placement of blockades at the front entrance of the property were intended to impede, if not prevent, public access to Windham Lakes. Nevertheless, in this case defendant only sealed off the access road to Windham Lakes. Thus, the property itself was at least partially open to the public as it remained usable for several of the activities enumerated in the statute, such as snowmobiling or cross-country skiing.

The fact that the property was posted with "No Trespassing" signs, while concededly not encouraging public access, did not physically prevent members of the public from using the land for many of the recreational pursuits which the legislature sought to promote. Furthermore, the statute expressly provides that it is applicable whether or not "No Trespassing" signs are posted. Posting is irrelevant because the statute extends to landowners whose land is available for recreational pursuits similar protections to those applicable under former law to landowners sued by trespassers. ³ Obviously, the legislature did not view posting as inconsistent with the purpose of the statute.

New York courts have applied the statute at issue here despite the erection by the property owners of various types of barriers to entry. See Sega v. State of New York, 60 N.Y.2d 183, 456 N.E.2d 1174, 469 N.Y.S.2d 51 (1983) (court held Sec. 9-103 applied notwithstanding the fact that the State had placed a locked chain across the bridge where the incident occurred to prevent access); Cutway v. State of New York, 89 A.D.2d 406, 456 N.Y.S.2d 539 (1982), rev'd 60 N.Y.2d 183, 456 N.E.2d 1174, 469 N.Y.S.2d 51 (1983) (companion case to Sega v. State of New York ) (court found Sec. 9-103 applicable even though the State had attempted to restrict access to the property where plaintiff was injured by installing a gate consisting of two steel well casings set in cement on each side of the entry road with a steel cable stretched between the posts and reflectors hung from the cable). Thus, while the original legislative intent may appear somewhat narrower than the current wording of the statute and even the original wording, the courts of New York have chosen to give the fullest effect to the language of the statute. ⁴ Accordingly, appellee's use of signs and blockades to inhibit entry by users such as Larini does not render the statute inapplicable.

Second, appellants maintain that the Windham Lakes property does not fall within the scope of the statute because the property does not meet the test formulated by a plurality of the Court of Appeals in Iannotti v. Consolidated Rail Corp., supra, at 74 N.Y.2d 45-46, 542 N.E.2d at 624, 544 N.Y.S.2d at 311 (plurality opinion by Hancock, J., in which Alexander and Titone, JJ., concur); id. at 52, 542 N.E.2d at 628, 544 N.Y.S.2d at 315 (dissenting opinion of Simons, J., in which Kaye, J., concurs [agreeing with the plurality opinion that the application of Sec. 9-103 "depends upon the suitability of the premises for the recreational uses stated in the statute"]. In Iannotti the court adopted a two pronged test to determine whether property is of the sort which the legislature intended to be more accessible to the public for recreational activities as a result of the inducement of the statute. The Iannotti court began its inquiry by asking if the property was physically conducive to the particular activity or sport. The court then focused the inquiry by asking whether the property was also a type which would be appropriate for public use for the recreational activity in question. Id.

At the time of Larini's accident, Lake Road was a wide, snow covered roadway traversing undeveloped wilderness. Appellants contend that the property was not amenable to snowmobiling because of numerous obstacles such as trees, stone walls and a pond. The trial court disagreed. It found, as common sense dictates, that this wide roadway through unspoiled woods made the property extremely attractive to the snowmobiling enthusiast. Moreover, the "obstacles" referred to by appellants merely added to the natural beauty of the surroundings and would be visible by a snowmobiler from the flat, semi-developed road. The trial judge also noted the general conduciveness of the...