74 N.Y.2d 39 | NY | 1989
Lead Opinion
OPINION OF THE COURT
Plaintiff alleges that he was injured while riding his motorized trail bike within the City of Amsterdam along a stone and dirt right-of-way 20 to 25 feet wide adjacent to defendant’s railroad tracks. The right-of-way, which had once formed the bed of a track, since abandoned, was used occasionally by railroad workmen as an access road for purposes of maintaining the existing tracks. In plaintiffs suit for damages he alleges ordinary negligence. Because there is no allegation
The Supreme Court denied defendant’s motion and the Appellate Division affirmed with a divided court, holding, as a matter of law, that General Obligations Law § 9-103 was inapplicable to defendant’s property.
The Appellate Division majority concluded, however, that the statute did not cover defendant’s property, because it was "maintained and used for the commercial operation of a railroad, [and was] not the type of property the Legislature intended to encourage landowners to open up for public recreational use by enacting General Obligations Law § 9-103
The legal question framed by the two writings at the Appellate Division, thus, is this: notwithstanding that a property is otherwise suitable for a particular recreational use, is the application of General Obligations Law § 9-103 barred, as a matter of law, because the property has a presently existing commercial use? For reasons stated hereafter, we agree with the dissenter that the property’s commercial use does not have that effect. There should accordingly be a reversal.
We commence our analysis with a review of the decision in Ferres v City of New Rochelle (68 NY2d 446) which, like the case before us, entailed a contention by plaintiff that section 9-103 was inapplicable because of the particular characteristics of the property involved. In Ferres, plaintiff’s suit for damages was based on the city’s negligence in maintaining the supervised public park and recreational facility where he was injured. We held that the Legislature could not have intended that the broad grant of immunity afforded by the statute be given effect to relieve a municipality from its legal responsibilities for properly maintaining a supervised recreational facility which it held open for public use.
We reasoned, from the wording of General Obligations Law § 9-103 and an analysis of its statutory scheme as well as from the relevant legislative history, that the sole purpose of the statute was "to induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities” (id., at 451). The extensive protection from liability conferred, we noted, is the quid pro quo which the statute offers to property owners to induce them to open their lands for recreational use. Because the claim in Ferres involved a supervised public park — a facility operated for the very purpose of furnishing a place for outdoor public recreation, thus making the statutory inducement unnecessary and the grant of immunity under the statute obviously inappropriate — we held that it "would be
Before we address plaintiff’s contention that applying General Obligations Law § 9-103 to defendant’s commercial property would not be consistent with the purpose of the statute as we analyzed it in Ferres, we note our agreement with the unanimous conclusion of the Appellate Division that section 9-103 is not limited to claims arising in wilderness, remote or undeveloped areas (137 AD2d, at 64; see also, Gardner v Owasco Riv. Ry., 142 AD2d 61, 63; Seminara v Highland Lake Bible Conference, 112 AD2d 630; Mattison v Hudson Falls Cent. School Dist., 91 AD2d 1133).
This original restricted reach of the statute has, however,
There is no more reason to make a categorical exception from the scope of General Obligations Law § 9-103 for properties which are in active commercial use than for properties which are not located in remote, undeveloped or wilderness areas. In reaching this conclusion we note that there is nothing in the statute indicating that commercially used property should be treated differently from other property. To the contrary, in Sega v State of New York (60 NY2d 183) we remarked on the unrestricted wording of the statute, noting that "section 9-103 refers to any 'owner, lessee, or occupant of premises’ ” (id., at 190 [emphasis in original]).
A commercial property may be well suited to public use for several of the enumerated activities (e.g., hiking, cross-country skiing, and horseback riding) and yet be in active use for its commercial purpose. The question is whether — notwithstanding its contemporaneous commercial use — the property is the sort which the Legislature would have envisioned as being opened up to the public for recreational activities as a result of the inducement offered in the statute. In other words, is it a 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? If it is, application of General Obligations Law § 9-103
The concurrence would not adopt this test. Rather, it would apply the statute as long as the injured party is "engaged in one of the listed activities at the time of his injury” even when the property is not a suitable area for the public to pursue the particular recreational activity (see, concurring opn, at 51).
Turning to the specific property involved here, it is not disputed that the right-of-way was physically amenable to public use for a number of recreational activities. Plaintiff in his affidavit and in his examination before trial stated that he and others had used the property for more than 10 years for riding snowmobiles, motorcycles, three-wheelers, and other
Finally, we see no merit in plaintiff’s contention that the statute should not apply because when the accident happened he was returning to his home from shopping and having a "bite to eat”. The argument is that he was using his trail bike not for recreation but for transportation and was, therefore, outside the statute. Obviously, that the bike was being used for transportation would not mean that its use was not also recreational. There is nothing in the statute or its history suggesting that the Legislature intended that its application should turn on the subjective intent of the injured person when engaging in one of the enumerated activities (see, Gardner v Owasco Riv. Ry., 142 AD2d 61, 63-64, supra).
Moreover, although section 9-103 states that it applies to "motorized vehicle operation for recreational purposes” (emphasis added), when read in context of the entire statute and in light of the underlying legislative purpose, it is evident that the phrase "for recreational purposes” is used to distinguish between on-road and off-road uses — not to reflect the particular user’s state of mind.
. Use of motorized trail bike is one of the recreational activities.
General Obligations Law § 9-103 (1) (a) provides, in pertinent part, that:
"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 hunting, fishing, organized gleaning as defined in section seventy-one-y of the agriculture and markets law, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes;
* * *
"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” (emphasis added).
. The appeal is before us by permission of the Appellate Division pursuant to CPLR 5602 (b) (1). The Appellate Division certified the following question "Did this court err as a matter of law in affirming the order of the Supreme Court denying a motion by defendant to dismiss the complaint, or in the alternative, for summary judgment?”
. The rejection of the construction limiting the statute to "wilderness, remote or undeveloped” areas, as the Appellate Division noted, is contrary to the view in the First Department (see, Russo v State of New York, 116 AD2d 240) and consistent with the view taken by the Fourth Department (see, Hirschler v ANCO Bldrs., 126 AD2d 971; contra, Michalovic v Genesee-Monroe Racing Assn., 79 AD2d 82, 85).
. The concurrence, although rejecting suitability, does indicate that it would consider other factors in determining the applicability of the statute (see, concurring opn, at 51,52). It does not specify what these factors might be.
. Indeed, the Bill Jacket to L 1972, ch 106 (adding bicycling to the section) includes a memorandum stating that General Obligations Law § 9-103 encourages snowmobile drivers, hikers, horseback riders and others to use abandoned railroad right-of-ways (see, Bill Jacket, at 3, Mem of Assemblyman Frank A. Carroll).
. As originally proposed the amendment would have added only the words "motorized vehicle operation” to the statute (see, Bill Jacket, L 1971, ch 343). Because Vehicle and Traffic Law § 125 defined "motor vehicle”, in part, as "[e]very vehicle operated or driven upon a public highway” (emphasis added), the phrase "for recreational purposes” was added apparently to distinguish between on- and ofF-road driving (see, Mem to Governor’s Coun
Concurrence Opinion
(concurring). I agree that the protection of General Obligations Law § 9-103 is available to defendant and that, accordingly, the complaint should be dismissed. As the plurality notes, "there is nothing in the statute indicating that commercially used property should be treated differently from other property.” (Plurality opn, at 45.)
I cannot join the plurality, however, because of the suggestion, implicit in its analysis, that the statute would not apply to land the court determines to be somehow inappropriate for the listed recreational purposes. Whether the statute applies to a particular piece of property, according to the plurality, depends on whether it is "a 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” (plurality opn, at 45).
Apparently, then, if a recreationist enters land to engage in one of the listed activities and it turns out that the land is not appropriate for that use, the statute will not apply and the landowner will be liable if the recreationist is injured. This, despite the language of the statute, which declares that "an owner, lessee or occupant of premises * * * owes no duty to keep the premises safe for entry or use by others for [the listed activities] or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes” (General Obligations Law § 9-103 [1] [a]).
Plainly, the statute contains no exception for properties which are inappropriate for the listed activities. By creating such an exception, the plurality sends this message to landowners: there is only a duty to keep your land safe for these activities if it is inappropriate for such use. That message is not only puzzling, but given the purpose of the immunity granted by the statute, it seems to me to be ill-advised.
We all agree that the purpose of General Obligations Law
Section 9-103 was designed to allay those fears; by granting immunity to landowners from suits by recreational users of their property, it relieved them of the burden of determining whether their property is safe for the designated activities. In effect, the statute permits a landowner, if he or she so chooses, to ignore with impunity those who enter the land for such purposes. That sense of repose was the inducement offered by the Legislature to encourage open lands. The interpretation of the statute suggested by the plurality, however, would impose the new, but not far different burden of determining whether property is "physically conducive to the particular activity or sport” and "appropriate for public use in pursuing the activity”.
It is not clear what physical attributes of the property will render it inappropriate for a given use. I assume that it must be something other than a dangerous condition or else the statute will never be applicable in the very situation it was designed to address — where an injury is caused by a dangerous condition on the land.
It will certainly prove difficult, even for Judges and lawyers, to draw the line between land covered by the statute despite the presence of dangerous conditions and land which falls outside the statute because it is "inappropriate” for the particular recreational activity. That point is illustrated well enough by the disagreement between the plurality and the dissenters in the present case. It will be even more difficult for landowners to assess their properties against this uncertain standard. Unfortunately, uncertainty in the minds of land
Even if landowners are able to overcome this obstacle and determine which activities their land is appropriate for, still they cannot safely ignore the recreational users. Indeed, unless the property is appropriate for all of the listed activities (from hang gliding to spelunking), the plurality’s standard would seem to require the landowner to patrol the boundaries and allow entrance only to those who intend to pursue the particular activities for which the premises are suited. The other alternatives would be either to risk liability or, what is more likely, to close the property to all. This cannot be what the Legislature intended.
Certainly, the best evidence of the Legislature’s intent, the plain language of the statute, provides no support for the exception advocated by the plurality. If we are to assume, as we must, that the words of the statute were carefully chosen, then that broad language, from which exceptions and qualifying language are conspicuously absent, suggests that the Legislature consciously eschewed such limitations in order to provide clear guidance to landowners.
The plurality misses this point when it asserts that "there could be no public interest in inducing the owners of * * * unsuitable properties to make them available for public recreation” and that "offering immunity * * * to such owners would be pointless and would not further the underlying statutory purpose” (plurality opn, at 46). Granting immunity to owners of unsuitable properties is not "pointless,” because it is not granted to induce them to make their properties available to the public but rather to avoid uncertainty and thereby induce the owners of suitable properties to open their lands. Immunity that is contingent upon a court or jury determining that one’s property is "appropriate” will not be enough security for many landowners, or so the Legislature may have thought.
Thus, the public interest and the statutory purpose can be served by a bright-line test, especially when the test is intended to be construed by laypersons. The Legislature was free to choose that option as the best way to achieve the desired result. The broad language of the statute suggests that such a choice was made. The courts have no authority to substitute their own choice.
I would simply hold, therefore, that the statute is applicable because plaintiff was engaged in one of the listed activities at the time of his injury and because there is no basis in the statute for treating commercially used property differently from other property.
The plurality’s response to my position assumes, incorrectly, that I would leave no room for consideration of factors other than the type of activity the plaintiff was engaged in at the time of the injury. My point is simply that the factor emphasized by the plurality — the suitability of the land for that particular activity — is inappropriate. The activity is, of course, a crucial factor, because the statute is very specific about the activities which give rise to protection for the landowner. But beyond that, the most important factor and the one most consistent with our precedents, is the one we found to be controlling in Ferres v City of New Rochelle (68 NY2d 446, supra). There, we held that a municipal park was not covered by the statute because the park existed for the very purpose of providing recreational opportunities for the public. Public access did not depend on the incentive offered by the statute and the trade-off envisioned by the statute was, therefore, lacking (see, id., at 454).
I would abide by that sound reasoning and, although I do not think it is wise to hypothesize about cases not before us, the principle of Ferres might be equally applicable to the reductio ad absurdum examples offered by the plurality. For example, it is at least arguable that, in the case of the
I suppose that someone may decide to engage in one of the listed activities on land that is clearly inappropriate for the purpose. A bicyclist may try to negotiate a cliff-side path or a hang-gliding enthusiast may try to land in the woods. I cannot understand, however, why we should contort the recreational use statute to ensure that it does not provide immunity to the landowner in such a case, when traditional tort doctrines of foreseeability and comparative negligence would severely limit or foreclose liability anyway.
The list of activities contained in the statute and the principle recognized in Ferres (supra) provide a sound basis for limiting the reach of the statute. I am open to any other exception that is consistent with the statutory language and purpose. Where the statute applies, however, there can be no doubt that it was intended to abrogate the "fundamental rule of [property] owner liability” concerning the landowner’s duty of care (see, plurality opn, at 46). That is what the statute is all about.
Despite the plurality’s reliance on Ferres v City of New Rochelle (68 NY2d 446), the holding in that case provides no support for an interpretation of the statute which would have it apply only if the property is appropriate for the recreational activity that the injured person was pursuing. Under such a test, the statute would have applied in Ferres because the municipal park was perfectly appropriate for the activity involved in that case — bicycling.
Dissenting Opinion
(dissenting). I agree with Judge Hancock’s interpretation of section 9-103 of the General Obligations Law, i.e., that it was enacted to make available to the public areas suitable for recreation by freeing property owners from liability for personal injuries sustained by users engaged in certain permitted activities, that its application depends upon the suitability of the premises for the recreational uses stated in the statute, and that suitability is a question of law for the court. I also agree with him that "suitability” does not, contrary to the holding of the Appellate Division, depend upon whether the property is commercial. A property may be "suitable” for recreational use notwithstanding its commercial nature.
Nevertheless, defendant’s property, the right-of-way of the main line of a national railroad network used by the freight and passenger trains, was singularly unsuitable for recreation
Accordingly, I dissent and vote to affirm the order of the Appellate Division.
Judges Alexander and Titone concur with Judge Hancock, Jr.; Chief Judge Wachtler concurs in result in a separate opinion in which Judge Bellacosa concurs; Judge Simons dissents and votes to affirm in another opinion in which Judge Kaye concurs.
Order reversed, etc.
