Bush v. Village of Saugerties

OPINION OF THE COURT Weiss, J. The Town of Saugerties owns a park called Cantine Field which adjoins and is contiguous to a park owned by the Village of Saugerties called Lions Playground. Combined, the parks provide a wide range of recreational facilities used by both residents and the general public for which no fee is charged. There is a row of maple trees spaced 25 to 30 feet apart along the division line between the two parks. The town installed a steel cable from tree to tree attached with eye hooks screwed into the trees at a height of about 4 to 5 feet above the ground. The cable was a silver-gray color, unpainted, around which the town had wrapped orange-red surveyor’s tape or surveyor’s ribbon to make it more visible and, in addition, at 4 to 5 foot intervals, attached strips of streamers of the same material which hung down from the tape toward the ground. It was not unusual for persons to travel on foot or bicycle from one park to the other and, in the process, go between the trees while crossing the division line. On June 4, 1982, Melissa J. Bush, then six years of age, was riding as a passenger on the cross-bar of a bicycle driven by her aunt, Brenda Williams. While attempting to take a short cut, Williams drove the bicycle between the trees along the common boundary line separating the parks and collided with the steel cable, as a result of which the infant sustained personal injuries. The town removed the cable entirely on the day following the accident. The infant’s mother commenced separate negligence actions against the town and the village. The village commenced a third-party action against the town and Williams. Following examinations before trial, both the [178] town and village moved for summary judgment dismissing the actions against them on the ground that liability was precluded by General Obligations Law § 9-103. Holding that issues of fact existed which required determination at trial, Special Term denied the motions, giving rise to these appeals by both the town and the village. These appeals require this court to decide whether the scope of General Obligations Law § 9-103 immunizes public owners of developed land, in this instance two public parks owned by two municipalities. Plaintiff urges that we distinguish the holding of the Court of Appeals in Sega v State of New York (60 NY2d 183) and instead adhere to the decision of the Appellate Division, Fourth Department, in O’Keefe v State of New York (104 AD2d 43), which involved claims against the State resulting from three drownings at a public marina owned and operated by the State. In sustaining the claims, the O’Keefe decision essentially held that the statutory immunity afforded by General Obligations Law § 9-103 does not extend to a public park or recreational facility open for public use. We agree. As noted by then Justice Hancock, Jr., in O’Keefe, nothing in Sega "precludes us from referring to legislative history in considering * * * the nature of the property and the types of claims which are within the reach of the statute” (O’Keefe v State of New York, supra, pp 45-46, n 2). Indeed, as the Sega court recognized, " ' "the absence of ambiguity facially is never conclusive” ’ ” (Sega v State of New York, supra, p 191, quoting Uniformed Firefighters Assn. v Beekman, 52 NY2d 463, 471). This is particularly pertinent where, as here, a literal application of the statute would work a dramatic change in the rules of negligence applicable to municipalities. In determining the scope of this statute, our primary objective must be to discern the legislative purpose of its enactment, an inquiry that necessitates consideration of its legislative history (Rankin v Shanker, 23 NY2d 111, 114). Since the O’Keefe decision provides a thorough and accurate [179] review of this statute’s historical development, it need not be repeated here. Instead, we need only observe that the initial purpose of its enactment was to open up "tracts of wild or undeveloped property suitable for hunting, fishing and trapping” (O’Keefe v State of New York, supra, p 48) and to protect the uncompensated owner/possessor from claims emanating from such activities (see also, 1 NY PJI 2d 122 [1984 Supp]). In other words, the statute served to open up lands for public recreational purposes by relieving the owner/possessor of potential tort liability, except for wanton or malicious acts. This original purpose is further reflected in subsequent amendments. For example, the 1978 addition of cross-country skiing among the enumerated activities was designed to promote the ski industry while concomitantly protecting the owner/possessor from potential lawsuits (L 1978, ch 187; memorandum of Senator Ronald P. Stafford, 1978 NY Legis Ann, at 150). As the O’Keefe decision points out, a governmental entity does not require similar encouragement to open and maintain a public recreational area (O’Keefe v State of New York, supra, p 47). Nor would any public interest be served by reducing the duty of care owed by a governmental entity in the operation of its public facilities. To the contrary, considering that the frequent users of our municipal parks are children, to define the municipality’s responsibilities in terms of willful or malicious conduct, a lesser standard than that owed a licensee under the common law, would often work the unwarranted result of precluding recovery despite the existence of a viable claim under general rules of landowner negligence (see, Nicholson v Board of Educ., 36 NY2d 798, 800). Moreover, the unique duty owed to the ordinary public users of municipal parks is clearly not what the Legislature intended to alleviate by General Obligations Law § 9-103. As stated in Sega, the purpose of the legislation was to insulate from liability for ordinary negligence "landowners who gratuitously allow persons to use their property for certain enumerated recreational activities” (Sega v State of New York, 60 NY2d 183, 186, supra; emphasis supplied). Once the subject parks were dedicated, an easement was created in favor of the public for the uses to which municipal parks are ordinarily applied (see, Porter v International Bridge Co., 200 NY 234, 245; 42 NY Jur, Parks and Recreation Centers, § 7, at 544 [1965]). Thereafter, the village and town had no absolute right to exclude the general public, plaintiff included (cf. Williams v [180] Gallatin, 229 NY 248). It follows that this is not simply an instance of permissive use to which the statute seemingly is limited. In view of the stated purpose of this legislation, we agree with the O’Keefe rationale that an extension of the statutory protection of General Obligations Law § 9-103 to public parks would render a drastic change in the rules of liability attendant a municipality’s duty to the public, never envisioned nor intended by the Legislature (O’Keefe v State of New York, supra, p 45). Accordingly, we conclude that General Obligations Law § 9-103 does not extend to a municipal park developed and open for public recreational use, where, as in the instant case, the activity involved is a permitted use. There is nothing in this record to suggest that bicycle riding was in any manner restricted in the village and town parks in question (cf. Mattison v Hudson Falls Cent. School Dist., 91 AD2d 1133). Accordingly, the traditional standard of ordinary care should apply (O’Keefe v State of New York, supra, p 44; see, Solomon v City of New York, 66 NY2d 1026). Since questions of fact are readily apparent as to whether the village or town breached its duty to plaintiff, Special Term properly denied the motions for summary judgment. Footnotes [*] Special Term did not address the issue of whether General Obligations Law § 9-103 (1) (a) was applicable in this case; rather, the court found triable issues of fact had been raised which precluded granting the motion and cross motion for summary judgment. Section 9-103 provides that landowners who gratuitously allow persons to use their property for certain enumerated recreational activities including “bicycle riding” are not liable to persons injured on the property except for “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity” (General Obligations Law § 9-103 [2] [a]).