89 A.D.2d 406 | N.Y. App. Div. | 1982
OPINION OF THE COURT
On April 18, 1976, while operating a three-wheeled all-terrain vehicle on State land, claimant sustained severe and permanent injuries to the chest and neck when he struck a five-eighths inch steel cable stretched across the dirt roadway on which he was traveling. Following a trial, the Court of Claims found the State liable, in part, for
The State contends that the claims herein are barred by section 9-103 of the General Obligations Law, which provides, in part, that an owner of premises owes no duty to keep the premises safe for entry or use by others for certain recreational purposes, including motorized vehicle operation. The statute further provides that “[t]his 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” (General Obligations Law, § 9-103, subd 2). The effect of this legislation, which was designed to encourage landowners to open their lands to public use for certain recreational purposes and to limit their liability if they did so, was to codify the common law as it existed when the statute was enacted (Curtiss v County of Chemung, 78 AD2d 908, 909). Accordingly, Basso v Miller (40 NY2d 233), which overruled the prior common-law categories of landusers and adopted the single standard of reasonable care, is inapplicable in cases such as this where the statute comes into play (Curtiss v County of Chemung, 78 AD2d 908, 910, supra).
Under the standard imposed by the statute, claimant had the burden of proving that the cable constituted a dangerous structure, and that defendant should have known that it constituted an unreasonable hazard and had reason to believe that a passerby could not have discovered it for himself, giving rise to a duty to warn (Rock v Concrete Materials, 46 AD2d 300, 303, app dsmd 36 NY2d 772; see, also, Sega v State of New York, 89 AD2d 412 [decided herewith]). For claimant to prevail, then, the proof must show that the cable was “a trap” or an inherently dangerous instrumentality which was or should have been known to the State, and that the State failed to exercise that degree of care which would prevent injury (Curtiss v County of Chemung, 78 AD2d 908, 910, supra).
The State concedes that the land was open to the public for recreational use. Further, the record shows that State officials were aware of the public’s recreational use of the land, including the use of motorized vehicles on the roadway. 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. Under these circumstances, the State’s contention that the recreational use statute was intended to protect it from liability for claimant’s injuries is less than persuasive.
With regard to claimant’s cross appeal, in view of the evidence concerning the speed at which claimant was traveling on an unfamiliar roadway and his failure to observe the cable until after impact, the court’s finding
The judgment should be affirmed, without costs.
Mahoney, P. J., Mikoll and Yesawich, Jr., JJ., concur.
Judgment affirmed, without costs.