Column: Summer guide to NY’s recreational use statute

By Christopher Potenza & James L. Maswick – Guest Columnists
 

It’s a universal truth that Western New Yorkers covet warm weather. But with an uptick in sun and temperatures comes an increase in litigation against property owners for alleged injuries from outdoor recreational activities. New York’s “Recreational Use Statute,” General Obligations Law § 9–103, is intended to both limit a property owner’s liability for such claims and to entice property owners to keep their properties open for certain delineated recreational or sporting activities by limiting a property owners’ risk for negligence claims arising out of the use of the property. The law provides that an owner, lessee or occupant of the premises owes no duty to keep the premises safe for entry or use by others for participating in an enumerated activity such as hunting, fishing, organized gleaning (which, of course, is “the harvest of an agricultural crop that has been donated by an owner, lessee, or occupant of premises or occupant of a farm by persons who are sponsored by a charitable not-for-profit organization” as defined by New York Agriculture & Markets Law §71-y), canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs, or to warn of any hazardous condition on such premises to recreational visitors. 

The law also, importantly, provides that the property owner who gives permission to another to pursue such recreational activities on the premises does not thereby extend any assurance that the premises are safe for such purpose, does not assume responsibility for or incur liability for any injury, or create a duty of care to the user. A plaintiff can overcome this protection if (1) he or she can show the property owner engaged in a willful or malicious failure to warn or guard against a dangerous condition, (2) where consideration was paid to the land owner in exchange for the recreational use of the property, or (3) when a permissive user injures another to whom duties are owed by the property owner.  

Recognizing the value and importance to New Yorkers of pursuing recreational activities, this statute immunizing landowners from liability arising from recreational activities will result in more properties being made available for such uses. Of course, if a fee is charged to a property user, a higher standard of care is owed to those who utilize the property.  Now this all seems pretty straightforward—if you allow someone to mountain bike on your property without charging a fee, you cannot be liable when he or she eventually crashes into a tree. But, as you can guess, it’s never that simple.  

Recently, the Fourth Department addressed the breath of this statue in Cummings v. Manville. The plaintiff was allegedly injured when he struck a pothole while riding a four wheel all-terrain vehicle on a gravel road. The issue before the Court was whether the property was conducive to this recreational activity. The road where the accident occurred was the sole means of access to three homes, and while located in a rural area, the two-lane private road was used for residential purposes, including school bus access. In light of this, the Fourth Department found that the physical characteristics of the road were residential, and not recreational in nature, and thus the defendant could not rely on the General Obligations Law § 9–103 defense.

Christopher Potenza, ESQ., is a member of Hurwitz & Fine, P.C., and leads the firm’s statewide toxic tort and environmental litigation team: [email protected]
James L. Maswick, ESQ., is an associate in its Lake Placid office and regularly handles litigation and premises liability cases: [email protected]

For the original article as it appears in Business First, click here.