88 A.D.2d 614 | N.Y. App. Div. | 1982
Lead Opinion
— In a negligence action to recover damages for personal injuries, etc., defendants Bering appeal from an order of the Supreme Court, Dutchess County (Jiudice, J.), dated December 9, 1980, which denied their motion for summary judgment. Order affirmed, without costs or disbursements. On February 18, 1973, plaintiff Bari Joy Rochette attended a winter sports event held at Orange Lake in Orange County. Plaintiffs claim that Ms. Rochettp, then aged 11, was severely and permanently injured as a result of a collision on the lake between two ice sailboats. Defendants Bering are 2 of 248 owners of real property adjacent to Orange Lake, who have been named as defendants in this lawsuit. It is plaintiffs’ claim that the defendant property owners are legally responsible for their failure to take such safety measures as were reasonable with respect to the conducting of activities on the lake. The motion for summary judgment by appellants was denied at Special Term on the basis that there existed questions of fact with respect to the legal rights and interests of the Berings in and to Orange Lake by virtue of their title to property adjacent to the lake. It is appellants’ position that assuming, arguendo, they have possessory or ownership rights in the lake, there was no duty owed by them to the infant plaintiff. We disagree. It should be noted that Orange Lake, over a long period of time, has been used for iceboat racing events or regattas. The record further demonstrates that these wind-powered craft, which rest on steel runners, are capable of traveling at high rates of speed on the frozen lake under proper weather conditions. It is the plaintiffs’ allegation that the adjacent landowners have permitted and encouraged Orange Lake to be used for the sport of iceboat racing and, significantly, appellants do not deny knowledge of the use of the lake for winter sports, including iceboat racing. Appellants, however, maintain that they have never used the lake for iceboating, do not belong to any organizations which promote such winter sports events, and further disclaim any knowledge of the unusually large winter event that took place at the lake on the day that the infant plaintiff was injured. Appellants further note that their affidavits indicated they never had “any type of control, management or supervision of any activities .on the lake” and that these allegations of fact went uncontroverted. On the papers before it, however, Special Term properly concluded that it could not make a determination as to appellants’ control of the property, given the inconclusive language in their deed that referred to their predecessor in title’s grant to them of “the right, title and interest, if any * * * in and to the waters of Orange Lake and the land underneath the same” (emphasis supplied). Since Special Term could not ignore the possibility that appellants may have had some interest in the lake, it could not rule out the further possibility that this interest vested appellants with control over the lake sufficient to hold them liable for injuries arising out of activities that took place upon it. Appellants’ liability in negligence or nuisance as owners or
Dissenting Opinion
dissents and votes to reverse the order and grant appellants’ motion for summary judgment, with the following memorandum: In my view, appellants are entitled to the immunity from liability conferred by subdivision 1 of section 9-103 of the General Obligations Law. As noted by the majority, paragraph a of the afore-mentioned statute provides that “an owner, lessee or occupant of premises * * * owes no duty to keep the premises safe for entry or use by others for * * * boating”. The majority concludes that the Legislature, when amending the statute to insert the word “boating” (L 1979, ch 408, § 1), did not intend that iceboat racing be included within the scope of the statute. I cannot concur with that result. When the statute in question was originally enacted, as section 370 of the former Conservation Law (L 1956, ch 842), the Legislature stated that it intended, by enacting the statute, to relieve owners of large tracts of land of the fear that persons using their land for various sporting purposes would hold them liable for injuries suffered during their use of the land. The Legislature thereby hoped that these owners would, as a consequence, refrain from posting notices on their property that the land was private, and hence off limits to outdoorsmen (see Memorandum of Joint Legislative Committee on Revision of Conservation Law, McKinney’s Session Laws of NY, 1956, p 1943; see, also, Curtiss v County of Chemung, 78 AD2d 908; Rock v Concrete Materials, 46 AD2d 300). This consideration applies with undiminished force to iceboat racing. It appears that Orange Lake is very well suited to accommodate the sport. With 248 adjacent real property owners having possible rights of ownership in the lake, it may be presumed that the Legislature intended the statute to encompass a case such as this, rather than have any one of the many adjacent landowners endeavor to deny the benefits of Orange Lake to the iceboat-racing public. The majority infers, from the Legislature’s “manifest desire for precision,” that since iceboating is not explicity mentioned in the statute, the Legislature did not intend that iceboating be subsumed within its terms. I disagree. Besides the fact that this holding frustrates the Legislature’s even more manifest, and indeed explicitly enunciated, purpose in enacting the statute, there is another consideration. It would have been both impractical and unnecessarily verbose for the Legislature to separately specify every subcategory of the outdoor activities mentioned in the statute. In my view, iceboat racing is included within the scope of the term “boating”. Interest in the sport is no recent development. Iceboat racing, alternatively known as ice yachting, has been popular in various circles for several centuries. Indeed, “[i]n 1790 ice-yachting was in vogue on the Hudson River, its headquarters being at Poughkeepsie, New York” (14 Encyclopedia Britannica, [11th ed], p 241, “Ice-Yachting”), which is not far from the location of the accident in question here. By 1900, the Hudson River Club owned more than 50 ice yachts, and one iceboat attained the speed of 140 miles per hour in 1907. “Clearly, in those days, the iceboat was the fastest vehicle man had yet produced” (11 Encyclopedia Britannica [1968 ed], p 1028, “Iceboating”). Iceboat racing is similar, in many obvious ways, to boating on water. The sails and body of an iceboat resemble those of many water boats. The two kinds of boating share many similarities of operation, such as with respect to balancing and steering. Both are largely wind propelled. I conclude that iceboat racing is included within the scope of the term “boating” in the statute, and that, as a matter of law, appellants are entitled to the benefits of section 9-103 of the General Obligations Law. Their motion for summary judgment should have been granted.
