I came across an article recently in the New York Law Journal titled “Drunken Run Could Leave Cornell Liable for Fatal Fall”. It’s about a case judge Ramsey (Ithaca, Tompkins County) recently decided where a drunken, and possibly stoned, Cornell University student suddenly bolted from the friends he was walking with on campus, ran down a marked hiking trail, departed from the trail, ran through the woods, hurdled a split-rail fence, and plunged to his death into the 200-foot gorge below. (The trail is appropriately named “Fall Creek Gorge trail”.)
Cornell moved for summary judgment (to have the case dismissed) based in part on New York’s General Obligations Law §9-103, which says landowners who allow the public to use their property for recreational purposes without charge are generally immune from liability. This law was enacted years ago to encourage landowners to open their fields and woods to hikers, bikers, hunters and others.
Judge Ramsey denied the motion and allowed the case to go to trial. The Judge reasoned that General Obligations Law § 9-103 grants immunity only for recreational activities, such as hiking, and here the kid was not “hiking”. The judge relied on a definition of “hiking” in the Department of Environmental Conservation’s regulations, which says hiking is “walking through trees for pleasure or exercise”. Here the kid was not “walking for pleasure”, the judge said, but rather running wildly through the woods in the middle of the night for unknown reasons.
I am sure there will be an appeal, and who knows where the Appellate Division will land on this issue. It seems incongruous, and unfair, that the law would bar a hiker’s claims but not those of a nocturnal barrier-hurdling drunk.
The judge also rejected defense arguments that Cornell had no duty to warn of the danger of falling into the gorge because it was “open and obvious”. That’s because the photos in evidence showed vegetation that appeared to obscure the lip of the gorge and, remember, it was nighttime.
This is the kind of case that makes folks on the street shake their heads and exclaim, “you can sue for anything in this country!”. But keep in mind that this unfortunate kids parents’ are not saying, “our kid was blameless”. Rather they are saying, “what about you, Cornell”? You knew of five prior falls into your gorge involving alcohol. You knew your students liked to “let their hair down” on the weekends to escape your ivy-league pressure cooker. Given all you knew, shouldn’t you have replaced that flimsy split-rail barrier with a real fence?
Will a jury buy the argument? Stay tuned . . .
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Michael G. Bersani, Esq.
michaels-smolak.com Central NY and Syracuse Personal Injury Lawyers
Michaels & Smolak, P.C.