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Patrick J. Higgins, for appellant.
Christine D. Hanlon, for corporate respondent.
James E. Conway, for individual respondent.
SMITH, J.:
Plaintiff was injured when he fell some thirty-five
feet while riding his motorbike. The central issue in this case is
the suitability of the property for motorbiking. If the property
was
suitable, defendants would be immune from liability for ordinary negligence
as provided by General Obligations Law 9-103. We conclude that
the land was suitable for motorbiking and affirm the order of the Appellate
Division.
In 1976, defendant Harlen W. Metz Jr. purchased
over four acres of property adjacent to Spawn Hollow Road in Bethlehem,
New York. It is undisputed that Metz utilized the property
exclusively as a gravel mine prior to 1988. The mining activity
during this period resulted in the creation of earthen slopes above the
pit which ran along the perimeter of the property. A similar earthen
path, or berm, had previously existed on the northern boundary of the property.
In April of 1988, Metz was issued a permit
by the New York State Department of Environmental Conservation (DEC) to
use the property as a gravel mine and as a "solid waste
management facility," or landfill, in accordance with 6 NYCRR Part
360. Although a ctive mining or excavation of the property was discontinued
in approximately 1989 or 1990, gravel from the property was stockpiled
and later used to cover the landfill material.
In April of 1991, the plaintiff's son rode
his motorized dirt bike up the road from his home and entered the northwest
corner of the Metz landfill as he had done many times before, including
the previous day, without incident. As he reached the top of the
path that ran up the earthen berm, his bike suddenly plunged into thin
air before plummeting almost 35 feet into the bed of the landfill.
Plaintiff filed this personal injury action
against defendants Metz and H.W. Metz General Contracting, Inc. Metz
and Metz Contracting subsequently moved for summary judgment
dismissing plaintiff's complaint based upon GOL 9-103.1 By
cross-motion, plaintiff sought to dismiss defendants' affirmative defense
premised on GOL 9-103. In opposition to defendants' motion, plaintiff
argued that many people in the area had ridden motorbikes in and around
the landfill for years and that defendants were grossly negligent for not
restricting entry into the area and for failing to warn of the alleged
danger. Supreme Court granted defendants' summary judgment motion,
concluding that the property was suitable for motorbiking and that GOL
9-103 provided defendants with immunity from liability.
The Appellate Division affirmed. It
found "abundant evidence of prior public recreational use of the Metz landfill"
(217 AD2d at 127) and held:
"Based upon the undisputed evidence of the
past public recreational use of the Metz landfill to ride dirt bikes and
other motorized vehicles to demonstrate the suitability of the
property for such use, and in the absence of any evidence to demonstrate
that the landfil l operation actually detracted from the property's suitability
for recreational purposes, we conclude that the property is suitable for
the recreational use in which plaintiff's son was engaged when he was injured"
(id. at 127-28).
On appeal, plaintiff contends a court must
examine the legal suitability of property under GOL 9-103 by assessing
the land's general characteristics and physical attributes rather than
past public use for recreational purposes. Plaintiff also contends
that GOL 9-103 should not be extended to protect owners of regulated
and restricted lands such as the waste disposal site at issue here.
Finally, plaintiff contends that the mere presence of defendant Metz Contracting
on the property is insufficient to trigger the statute. Rather, only
those entities and individuals with the indicia of ownership and control
may rely on GOL 9-103. Defendants oppose each of plaintiff's contentions
which were all rejected by the Appellate Division.
Our previous rulings in Bragg v Genesee County
Agric. Socy. (84 NY2d 544) and Iannotti v Consolidated Rail Corp. (74 NY2d
39) are dispositive of the primary issue on the instant
appeal.
GOL 9-103 "grants immunity for ordinary
negligence to landowners who permit members of the public to come on their
property to engage in several enumerated recreational activities, including
motorbiking" (Bragg, supra, 84 NY2d at 546-47). In Bragg, this Court
stated that "the statute properly applied when (1) the plaintiff is engaged
in one of the activities identified in section 9-103 and (2) the plaintiff
is recreating on land suitable for that activity" (Bragg, supra, 84 NY2d
at 552).
Here, it is undisputed that plaintiff was
engaging in an activity included within section 9-103 when he was injured
-- motorbiking (Iannotti, supra, 74 NY2d at 42, n. 1). Thus, the first
prong of the test is satisfied.
The statute protects land owners against claims
of ordinary negligence and, as the lower courts determined, there is no
evidence of willful or malicious failure on the part of Metz or Metz Contracting
(GOL 9-103[2][a]). Thus, in this case, our inquiry must focus on
whether the property might be deemed suitable for the recreational use
in which plaintiff's son was
participating when his accident occurred.
In Iannotti (74 NY2d 39), this Court articulated
the elements a court must consider to determine the suitability of property
for application of GOL 9-103: whether the premises are the
"type of property which is not only physically conducive to the particular
activity or sport but is also a type which would be appropriate for public
use in pursuing the activity as recreation" (id. at 45).
A substantial indicator that property is "physically
conducive to the particular activity" is whether recreationists have used
the property for that activity in the past; such past use by
participants in the sport manifests the fact that the property is physically
conducive to it (see, Iannotti, supra, 74 NY2d at 46-47; see also, Bragg,
supra, 84 NY2d at 547). It is clear that
motorbikers used this property for a long period of time before the
accident here. Thus, as to the first element of the Iannotti test,
plaintiff's "abundant evidence" of past recreational use of the Metz landfill
for motorbiking clearly evinces that the property is physically conducive
to that activity.
Despite such evidence here, however, plaintiff
contends that the Metz landfill was never suitable for motorbiking because
the regulation of the landfill by the DEC precludes a finding that the
property was appropriate for such recreational use. Thus, plaintiff
argues that the second prong of the test for suitability set forth in Ianotti
(74 NY2d 39) is not satisfied. We do not agree.
As stated in the permit issued to Metz by
the DEC, the "[s]ite shall be secured against entry when owner or operator
are not present." Fencing of the site was not required however.
Although a "site" is defined under the regulations as "the geographically
contiguous property of a solid waste management facility and includes the
land area of that facility and its access roads, appurtenances and land
buffer areas" (6 NYCRR 360-1.2), the DEC regulations regarding public
access to areas around landfills have little to do with restricting recreational
use.2
The purpose of 6 NYCRR 360 "is to regulate
solid waste management facilities..." (see, 6 NYCRR 360-1.1). The
"Operational requirements for all solid waste management facilities," as
set forth at 6 NYCRR 360-1.14, provide that "[p]ublic access to facilities
and receipt of solid waste may occur only when an attendant is on duty..."
(6 NYCRR 360-1.14[c]). Access to and use of the facilities may
be controlled by "natural barriers or other suitable means" (6 NYCRR
360-1.14[d]). The regulations further require a facility owner or
operator to establish a "control program" to "assure that only solid waste
authorized by the department to be treated, disposed of or transferred
at the facility is being treated, disposed of or transferred at that facility"
(6 NYCRR 360-1.14[e][1]).
These access regulations are clearly targeted
at un authorized dumping in the facility rather than banning potential
public recreational use of natural barriers, access roads or land buffer
areas which are distinct and apart from the landfill itself. We further
note that even the guidelines governing the regulation of hazardous waste
management facilities refer to the prevention of unknowing and/or unauthorized
entry into "the active portion" of the facility (6 NYCRR 373-2.2[f])
defined as "that portion of a facility where treatment, storage or disposal
operations are being or have been conducted..." (6 NYCRR 370.2[a][5]).
Of course, the Metz landfill does not fall into the latter "hazardous"
category since it was only authorized to accept bricks, concrete, soil,
rocks, lumber, trees, brush and stumps.
To the extent plaintiff argues that the land's
suitability must be judged by its "general characteristics" and that the
general characteristic of the property at issue is landfill, plaintiff
ignores the fact that portions of Metz's land were not used as
landfill and it was in these other areas that plaintiff's son
injured himself while motorbiking. Moreover, while the parties dispute
whether the property had been altered during a twenty-four hour period
to create a cliff where none had existed, such a change would not vary
the result here. It is the general suitability of the property that
governs. In Bragg we stated:
"The statute removes any obligation on the
landowner 'to keep the premises safe ... [and] to give warning of any hazardous
condition ... to persons entering for [recreational] purposes' (General
Obligations Law 9-103[1][a]). If this language is to have any force,
suitability must be judged by viewing the property as it generally exists,
not portions of it at some given time. Any other test, which requires
the owner to inspect the land, to correct temporary conditions or locate
and warn of isolated hazards as they exist on a specific day, would vitiate
the statute by reimposing on the owner the common-law duty of care to inspect
and correct hazards on the land" (Bragg, supra, 84 NY2d at 552).
When interpreting statutory language, "'the
spirit and purpose of the act and the objects to be accomplished must be
considered. The legislative intent is the great and controlling principle'"
(Ferres, supra, 68 NY2d at 451 [quoting People v Ryan, 274 NY 149, 152]).
As this Court explained:
"The premise underlying section 9-103 is simple
enough: outdoor recreation is good; New Yorkers need suitable places to
engage in outdoor recreation; more places will be made available if property
owners do not have to worry about liability when recreationists come onto
their land" (Bragg, supra, 84 NY2d at 550; see also Ferres v New Rochelle,
68 NY2d 446, 451).
Here, plaintiff's son was injured while
motorbiking on an earthen berm above the Metz landfill pit. Applying GOL
9-103 to the facts of this case is consistent with the legislative purposes
underlying that statute and the regulations of the DEC.4
Plaintiff's remaining contention is that the
statute does not protect Metz Contracting from negligence claims arising
from its maintenance of the property. The statute reaches "owners,
lessors and occupants" (GOL 9-103[1]). Thus, three different levels
of property interests may be protected against common law negligence claims
arising from injuries to recreationists on real property when the statute
applies. Nevertheless, the statute does not protect those who may
not be classified as owners, lessors or occupants.
Metz Contracting submitted uncontested proof
that it did not own the property and neither party has argued that the
company was a lessor. Thus, GOL 9-103 is only properly applied
to Metz Contracting if it can be deemed an "occupant" under the statute.
Plaintiff contends that Metz Contracting is not an occupant since it did
not control access to the land or hold the right to exclude people from
the property.
Metz's DEC permit required him to establish
procedures to control dumping, disposal and mining in the facility.
There is no argument that Metz Contracting, owned and controlled by Metz,
functioned as his work crew and agent in managing the property in accordance
with the DEC regulations. Thus, Metz Contracting's authorized
presence on the premises was sufficient to bring it within the meaning
of occupant in the statute. The record here fully supports the Appellate
Division's determination that GOL 9-103 encompasses Metz Contracting.
The order of the Appellate Division should
be affirmed, with costs.
F O O T N O T E S
1. Section 9-103
of the General Obligations Law provides in pertinent part:
1. Except as provided in subdivision
two, a. an owner lessee or occupant of premises, whether or not posted
as provided in section 11-2111 of the environmental conservation law,
owes no duty to keep the premises safe for entry or use by others for
... motorized vehicle operation for recreational purposes ... or to give
warning of any hazardous condition or use of or structure or activity on
such premises to persons entering for such purposes ...
2. This section does not limit
the liability which would otherwise exist
a.
For willful or malicious failure to guard, or to warn against, a dangerous
condition, use, structure or activity....
2. We note that GOL 9-103 applies
even "to those who seek to prevent others from using their lands by posting
them pursuant to ECL 11-2111" (Bragg, supra, at 551).
3. Compare Hoffman v Joseph R.
Wunderlich, Inc., 147 AD2d 807, lv. denied, 74 NY2d 612 (no liability when
plaintiff was injured riding in the suitable portion of the property that
had been used for recreational riding for over 10 years) with Pulis v T.H.
Kinsell, Inc., 156 Misc 2d 499, aff'd on opn below, 204 AD2d 976 (liability
when plaintiff was injured while driving ATV in an unsuitable portion of
the property, the excavation pit).
4. We further
note that plaintiff's son and the rest of her family have received the
benefits of the statute through years of recreational use over Metz's property.
Nevertheless, "the statute implicitly contemplates a trade off for the
public use: ecreationists, if permitted to use the lands of others, must
assume the risks of doing so" (Bragg, supra, 84 NY2d at 550).
* * * * * * * * * * * * * * * * *
Order affirmed, with costs. Opinion by Judge Smith. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.
Decided October 17, 1996