Schoonmaker v. Ridge Runners Club 99, Inc.

— Mikoll, J. Cross appeals from an order and judgment of the Supreme Court at Special Term (Lee, Jr., J.), entered December 14, 1984 in Delaware County, which granted the motion by defendant Ridge Runners Club 99, Inc., for summary judgment dismissing the complaint and all cross claims against it. On September 6, 1980, plaintiff sustained serious injuries when he was struck by a tree cut down by defendant Robert Curtis upon lands owned by defendant Ridge Runners Club 99, Inc. (Ridge Runners). Plaintiff and Curtis were assisting defendants Gary P. Schoonmaker and Craig D. Schoonmaker, brothers of plaintiff, in cutting and gathering firewood for the use of Gary and Craig, who were members of Ridge Runners. Neither plaintiff nor Curtis, however, were members of Ridge Runners. Ridge Runners, a recreational club, owned approximately 460 acres of undeveloped land in the Town of Hancock, Delaware County. Ridge Runners had about 20 members and its land was used by members for hunting, fishing, snowmobiling and camping. Members paid an $800 initiation fee and $15 [859] per month dues. The club also had a long-standing practice of allowing its members to cut down trees on the property for their own use. Although nonmembers were permitted on the premises as long as they were accompanied by a member, they could not cut or take any wood for themselves. Plaintiff alleged that as a result of the accident, he suffered, inter alia, a compound fracture of his right tibia and fibula, a compression of the lumbar area and head injuries. Plaintiff commenced this action against defendants to recover money damages alleged to be caused by their negligence. Ridge Runners asserted in its answer an affirmative defense claiming that it was immune from liability by virtue of General Obligations Law § 9-103, and subsequently moved for summary judgment dismissing the complaint. Special Term granted the motion, dismissed the complaint against Ridge Runners and also dismissed all cross claims of the other defendants against Ridge Runners. Special Term found that General Obligations Law §9-103 was applicable in this case and, therefore, that plaintiff had failed to state a cause of action against Ridge Runners. These cross appeals ensued. The primary question to be decided in this case is whether Ridge Runners is immunized from liability for any negligence by virtue of General Obligations Law § 9-103 (1) or whether the exception provided in General Obligations Law § 9-103 (2) (b) applies, precluding Ridge Runners from receiving such immunity. Plaintiff argues that General Obligations Law § 9-103 (2) (b) applies to this case since Ridge Runners received consideration, in the form of membership fees, in exchange for the permission it gave its members to cut wood on its premises. Plaintiff maintains, therefore, that Ridge Runners is not immune from liability under General Obligations Law § 9-103 (1) for its alleged negligence in causing plaintiff’s injuries. We agree. General Obligations Law § 9-103 provides in pertinent part: ”1. Except as provided in subdivision two, "a. an owner, lessee or occupant of premises * * * owes no duty to keep the premises safe for entry or use by others for * * * cutting or gathering of wood for non-commercial 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; or [860] "b. for injury suffered in any case where permission to pursue any of the activities enumerated in this section was granted for a consideration”. General Obligations Law § 9-103 (1) (a) effects a change, in certain enumerated instances, in the common law’s view of a landowner’s liability for injuries to third parties as a consequence of defects in his property (see, Sega v State of New York, 60 NY2d 183, 191). If this provision applies, plaintiff must prove that Ridge Runners willfully or maliciously failed to guard against a dangerous condition, use, structure or activity (supra, at p 192). However, this immunity from negligence does not apply if the landowner exacts a charge for use of the property (General Obligations Law § 9-103 [2] [b]; see, Sega v State of New York, supra, p 186). It appears that Ridge Runners received a consideration in exchange for its permission to allow members to cut and take wood. This privilege was one of the benefits of club membership. Therefore, the exception applies and Ridge Runners is not immune from liability for its negligence, if any exists. This situation differs from that found in Seminara v Highland Lake Bible Conference (112 AD2d 630, 631-633), where the plaintiff’s occasional purchases from a snack bar on the defendant’s property was held not to constitute consideration for the privilege of bicycling on the property for purposes of General Obligations Law § 9-103 (2) (b). In Seminara, this court found that there was an insufficient nexus between the alleged consideration and the recreational activity (supra, p 633). Here, there is a direct connection between the consideration paid and the activity specified in the statute. Thus, Special Term improperly granted summary judgment dismissing the complaint and all cross claims against Ridge Runners. There is a triable issue of fact raised regarding Ridge Runners’ alleged negligence which must be determined by a jury. Since General Obligations Law § 9-103 (1) is inapplicable, the governing standard of care in this case is the landowner’s duty of reasonable care to those entering its property (see, Basso v Miller, 40 NY2d 233). The foreseeability of the harm is the measure of liability (supra). Testimony elicited during discovery established that Ridge Runners had condoned the cutting down of trees on its property, a potentially dangerous activity. Although it had no rules concerning safety procedures to be followed and it provided no training or safety equipment, members were given complete freedom in cutting down trees. An accident of the kind herein could be found to be foreseeable under these circumstances. Also, a [861] factual issue exists as to whether Ridge Runners’ failure to exert some supervisory or other control over the tree-cutting activity amounted to negligent conduct. Ridge Runners’ reliance on Barnaby v Rice (75 AD2d 179, affd 53 NY2d 720) as support for its contention that this accident was not reasonably foreseeable is mistaken for the instant case is distinguishable. In Barnaby, the property owner was conducting a garage sale. This was not an inherently dangerous activity and the property owner had no knowledge that the deceased infant was left in the vehicle parked by the roadside (supra, at p 181). In the instant situation, Ridge Runners was aware that its members were engaged in the potentially dangerous activity of cutting down trees on its property. The order and judgment should therefore be reversed and Ridge Runners’ motion for summary judgment denied. Order and judgment reversed, on the law, without costs, and motion denied. Casey, Weiss and Mikoll, JJ., concur.