Sena v. Town of Greenfield

Casey, J. Appeal from a judgment of the Supreme Court (Keniry, J.), entered September 30, 1996 in Saratoga County, upon a verdict rendered in favor of plaintiffs against defendant Town of Greenfield. Plaintiff Patrick Sena (hereinafter plaintiff), a 46-year-old father of two sons, was injured on January 22, 1989, while sledding down a hill in the Town of Greenfield, Saratoga County. The accident occurred on plaintiff’s first ride that day down the hill when, he claims, the sled struck a -brownish protruding area that threw him and his son, who was riding on his back, aloft. Plaintiff sustained serious injury when his son landed on his pelvic area, causing, among other injuries, a spinal fracture. As a consequence, plaintiff and his wife, derivatively, sued defendant Town of Greenfield (hereinafter defendant) and the manufacturer of the sled that plaintiff was using. Plaintiffs also commenced a second action against defendant Albany Medical Center Hospital and the surgeon who treated him for his injuries. The two actions were consolidated. Plaintiffs subsequently settled with the hospital and the surgeon, and the action against the manufacturer of the sled was discontinued before trial. Defendant’s motion for summary judgment based on the immunity afforded defendant by General Obligations Law § 9-103 (1) (a) was denied. After a jury trial, defendant was found totally liable for plaintiff’s injuries and plaintiffs were awarded $810,000 for past pain and suffering, $2,500,000 for future pain and suffering, $180,000 for past derivative losses and $250,000 for future derivative losses. Although Supreme Court denied plaintiffs’ posttrial motion to set aside the verdict as against the weight of the evidence, it found the award for future pain and suffering excessive and reduced it to $1,000,000. Defendant now appeals. Although defendant did not appeal the denial of its motion for summary judgment, such denial “is res judicata of nothing except that summary judgment was not warranted” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book [680] 7B, CPLR C3212:21, at 327; see, Gargiulo v Oppenheim, 95 AD2d 484, 492, affd 63 NY2d 843). Consequently, Supreme Court was not precluded from directing an appropriate verdict after trial. It is our opinion that General Obligations Law § 9-103 applies to this action and relieves defendant from all liability, compelling the reversal of the judgment in its entirety. Plaintiffs have attempted to avoid the limited liability afforded defendant by this statute by likening the area where the accident occurred to the supervised public park facilities present in Ferres v City of New Rochelle (68 NY2d 446). The record testimony and the type of area where plaintiff was injured clearly dispels such a position. The property involved here is a large tract of generally unimproved land estimated at between 12 and 20 acres which adjoins defendant’s highway garage. The two or three structures located on this land are used mainly for storage and maintenance of Highway Department equipment. The vacant land behind these structures is used mainly for the storage of materials and heavy road equipment. Up until the 1970s, the Highway Department had removed sand and gravel from the site for highway maintenance and repairs. As a result, a “gravel pit” developed causing defendant’s inhabitants to refer to the site as the “gravel pit” or “gravel bank”. At about 300 or 400 yards from this pit, some people had scoped out a baseball field and erected a pavilion-like shed. No building permit or approval of this baseball field was obtained from defendant. In any case, these limited improvements do not change the character of this land to a regularly supervised public recreational facility, which would make the provisions of General Obligations Law § 9-103 inapplicable (see, Wilkins v State of New York, 165 AD2d 514, 517). In 1988, at the urging of a Town Board member and others, the Highway Superintendent agreed to have his employees grade the “gravel pit” to make it less steep and more suitable for sledding. Far from creating a regularly supervised public recreational facility, this grading simply indicated that defendant was affording permission to its residents and others to sled there and that the “gravel pit” as graded was suitable for that purpose. This determination of general suitability for the recreational activity pursued is a question of law for the court (see, Bragg v Genesee County Agric. Socy., 84 NY2d 544, 552). Although defendant graded this hill and knew it would be used for sledding, it did not advertise its use as such or charge a fee. In Bragg v Genesee County Agric. Socy. (supra), the Court of Appeals mandated the application of General Obligations Law [681] § 9-103 to a similar situation when it stated that “if the plaintiff is engaged in a recreational activity enumerated in the statute [which includes sledding] and the land is conducive and appropriate for the chosen type of recreation, the statutory purpose is fully realized because suitable land is opened up to those who engage in activities deemed worthy of pursuit” (id., at 551). In Sega v State of New York (60 NY2d 183, 190 n 2), the Court of Appeals permitted the application of General Obligations Law § 9-103 on appeal where that section applied to the underlying facts and circumstances under the Bragg test, even though that statute had not been applied to the case at the trial level. In the same manner, General Obligations Law § 9-103 should be applied on this appeal since all of the statutory conditions have been met. Where, as here, the statute applies and plaintiffs have not demonstrated that defendant’s conduct was willful or malicious, the judgment must be reversed and the complaint dismissed (see, Bragg v Genesee County Agric. Socy., supra). Crew III and White, JJ., concur.