In New York State, when trail advocates negotiate with landowners for access to private land to provide public trails and other recreational access, they invariably promise that the land owners will be free from liability if a recreational user gets injured on the property.

Often, in all honesty, groups like snowmobile organizations, emphasize that the General Obligations Law (GOL) Section 9-103 provides complete protection for the landowner. Indeed, the General Obligations Law provides that owners, lessees or occupants of premises, whether or not posted, owe no duty to keep the property safe for entry use for a multitude of specific sports and recreational uses or to warn of hazardous conditions. The law even provides that if the owner, lessee or occupant grants permission to others to pursue such activities, he does not give any assurance that the property is safe for the purpose or owe a duty of care to the person or incur any liability to the person for injuries. The law also provides protection to owners, lessees or occupants of farms, but the protection specifically exempts “gross negligence.”

But then come the exceptions in the GOL: willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity; or where certain remuneration was paid by the user unless by the state or federal government; and to injuries caused by people to whom permission was granted to other people to whom the person granting permission, the owner, lessee or occupant owed a duty to keep the premises safe or warn of danger. Furthermore, if the use, such as swimming, is not specifically named in Section 9-103, the property owner is not protected by the GOL.

And there are interpretations, these defined in the dismaying court decisions in New York State, which demonstrate that owners have liability to recreational and other users of their property where trails and recreational access exists.

LANDOWNER PROTECTIONS NOT PROVIDED IN THE GOL

1. Swimming and Other Recreational Activities Not Enumerated
   James D. Cramer was injured when he was struck on the head by a falling rock while walking away from a swimming hole on property allegedly owned by Howard and Elwin Henderson and New York State Electric Gas. The Court found in 1998 that Mr. Cramer’s actions at the time were incidental to swimming, which is an activity not enumerated under the GOL, rather than hiking, because he was merely walking. Therefore the liability of the landowners should be determined on the basis of whether they breached a duty of reasonable care to the injured man. [Cramer v. Henderson & New York State Electric and Gas, 120 AD2d 925 (4^th Dept., 1986)]
2. Uses That are Not Recreational or Intended to be Recreational
   The use of a four-wheel-drive multipurpose vehicle on a recreational trail does give the landowner liability protection if the use is not one of the GOL enumerated recreational uses. After leaving a bar shortly after midnight in the town of Hanover in Chautauqua County, Farnham, Cobb and Kittinger entered Kittinger’s Penn Central right-of-way to relieve themselves. They were seriously injured when the vehicle in which they were riding overturned. The Court of Appeals ruled in 1994 that off-road operation of a non-inherently recreational, multi-purpose motor vehicle does not automatically constitute “motorized vehicle operation for recreational purposes” within the meaning of the GOL. Whatever liability would instead be determined under the customary principles. [Farnham v. Kittinger, 83 NY2d 520 (1994)]
3. Facilities Operated, Maintained and Supervised by Municipalities
   In one of many cases where municipalities and the State were held to be not exempt from the GOL liability protections, Patrick Sena was sledding with his son on property owned by the Town of Greenfield in January 1989. He was injured when their molded plastic sheet with no steering capability struck a brownish mound which threw him and his son into the air. In 1998 the Court of Appeals ruled against the Town. The Court found that the area was a supervised public park because it was graded and inspected by the highway superintendent and sanctioned by the Town by a sign indicating that participation was at one’s own risk.
   “The statute does not apply… to immunize a municipality from liability for its failure to fulfill its duty of reasonable care in the operation and maintenance of a supervised public park and recreational facility… Where a municipality has already opened land for supervised recreational use, the statute’s intended purpose of encouraging the landowner to make its property available for public use would not be served …Moreover, since public access to parks is good and desirable and serves the general welfare…, a municipality has a compelling, independent motivation to provide public access to its supervised parks above and beyond any incentive offered by statutory immunity under section 9-103.” [Sena v. Town of Greenfield, 91 NY2d 611 (1998)]
   Examples of other cases where municipalities were held to not receive the benefit of GOL liability protection were a lawsuit where a six-year-old child riding on the handlebars of a bicycle got hurt when the driver drove between trees and collided with a steel cable separating two parks [Bush v. Village of Saugerties, 114 AD 2d 176 (3^rd Dept, 1986)] and a dispute where Christopher English was injured while tobogganing on a golf course property owned by the City of Albany [English v. City of Albany, 235 AD2d 977 (3^rd Dept, 1997)].
4. A Dangerous Condition That the Landowner Willfully Fails to Warn Against
   Richard Cutway was operating a three-wheeled all-terrain vehicle on State land that was open to the public for recreational use, when he struck a five-eighth inch steel cable stretched across the roadway on which he was traveling and suffered permanent injuries. The State’s contention that the claims were barred by Section 9-103 of the GOL was denied because of the exemption for willful or malicious failure to guard or warn against a dangerous condition.
   “In order to put an end to this use of motorized vehicles on the roadway, the State erected the cable gate. Yet despite its awareness that motorized vehicles used the roadway, and despite its knowledge that the cable was located such that, when approached from one direction, the inconspicuous cable first came into view at a distance of 110 feet, leaving the operator of a motorized vehicle little time to observe and react, the State took no steps to warn users of the existence of the cable.” [Cutway v. State of New York, 89 AD2d 406 (3^rd Dept, 1982)]
   This decision was reversed by the Court of Appeals. In Judge Casey’s dissent in Hummel v. Vicaretti (see below), he wrote, “[W]e were of the view that the State’s careless or reckless conduct could rise to the level of a willful or malicious failure to warn under General Obligations Law Section 9-103 (2), even in the absence of actual malice or intent to injure...The Court of Appeals held in Cutway that ‘there was no basis for imposing liability on the State for claimant’s injuries’ (60 NY2d 183, 192, supra).”
   Judge Casey further pointed out in his dissent in Hummel, “As to the willful aspect of the statutory standard, defendants’ conduct was no more willful than the reckless disregard shown by the State in the Cutway case, where despite having knowledge of the risk, it failed to warn of the trap or inherently dangerous condition it had created by stretching a thin cable across a roadway used by motorized recreational vehicles at a point where the cable was virtually invisible to approaching recreational riders.”
5. A Dangerous Condition That the Landowner Willfully or Maliciously Failed to Guard or to Warn Against
   For a period of time prior to March 1, 1986, operators of recreational vehicles used the “pipeline trail” which ran though the property owned by the Vicarettis in Sullivan County. To prevent the unauthorized use of their property, the Vicarettis constructed a fence consisting of two strands of wire horizontally across the trail, one at knee height and the other at chest height. The strands of wire were of light color. On March 1, 1986, Ralen Hummel was riding his all-terrain vehicle along the trail, and failed to see the fence until he was too close to stop. He was injured as a result and sued the Vicarettis. The Appellate Division, Third Department ruled in 1989 that the Vicarettis were not exempt under the GOL. The court held that either “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity” was the standard under which the property owner loses his exemption from liability. The Vicarettis did not have to show malicious intent to lose the benefit of the protection under the GOL; the court accepted a definition of “willful” that was in conformity with case law. [Hummel v. Vicaretti, 152 AD2d 779 (3^rd Dept., 1989)]
   In this case, the property owner was not protected by the recent Court of Appeals ruling in Cutway (see above) which had reversed the same Appellate Court on the exact same issue where the State of New York had been denied exemption from liability under the GOL.
6. Premises That are Not Situated In and Around Undeveloped Land
   A fourteen-year named William Russo was riding his motor bike on a dirt roadway in the Town of Greenburgh on property owned by the City of New York in Westchester County and struck a cable erected by Consolidated Edison between two towers. The narrow strip of property is the location of a subsurface aqueduct, conveying water to the City from reservoirs in the Catskill Mountains. This strip of undeveloped land, known as the Catskill Aqueduct Lands, runs the entire length of Westchester County at varying widths of 125 to 230 feet, crossing cities, towns and other residential areas. The dirt road is about 25 feet wide and extends through the entire length of the Catskill Aqueduct Lands. Con Edison uses the road to cut and trim trees beneath the transmission lines.
   The court ruled that, “The narrow strip of land on which the plaintiff was injured is located in a densely populated and highly developed area not within the purview of General Obligations Law Section 9-103 and the ordinary standards of negligence should apply.” [Russo v. City of New York, 116 AD2d (1^st Dept., 1986)]
7. Premises That are Unsuitable for the Types of Uses Enumerated in the Statute
   Mark Gutchess was injured when he rode his bicycle across a corner property owned by Chris Tarolli. There was a two to three-foot-high rope fence strung across the front yards of Tarolli and the adjoining property owner, who was also a defendant, to keep cars from parking on the lawn. In 1999, the Appellate Division Fourth Department ruled that “…that there is no merit to Tarolli’s contention that the complaint is barred by General Obligations Law Section 9-103. Defendants’ front lawns are not ‘conducive and appropriate for the chosen type of recreation,’ that is, bicycling,” citing Bragg v. Genesee County Agric. Socy., 84 NY2d 544, (1994). [Gutchess v. Tarolli, 262 AD2d 1008 (4^th Dept., 1999)]

Property owners should be aware that the liability situations discussed above warn against the sale or donation of recreational easements, whether for a trail, swimming access, fishing access, or another purpose where the public could use the property.
Unless the liability law changes substantially, these cases should serve as a caution for property owners when they are approached for public-spirited purposes offering access to private property.

- By Carol W. LaGrasse
January 2004

Appreciation is extended to Beatrice Havranek, Attorney, Rosendale, N.Y., for the research that made this article possible.

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