I. The Current General Obligations Law § 9-103
This section addresses the basic protection offered by the current statute and in what circumstances the law applies.
A. Change in the Liability of Landowners Under § 9-103
The current incarnation of General Obligations Law § 9-103 offers a great deal of protection to landowners. Without the protections it offers, a landowner is subject to liability for ordinary negligence. Section 9-103 protects landowners from suits by those engaged in the specified activities, unless the landowner's failure was willful or malicious.
1. Ordinary Negligence -- Without § 9-103, a landowner must exercise reasonable care under the circumstances. That means that if it was foreseeable that a condition existing on the premises could cause injury and the landowner failed to fix or warn of the condition, he or she would be liable for the resulting injury. Courts look to whether the landowner acted as a reasonable person in keeping the property in a reasonably safe condition see, Basso v Miller, 40 NY2d 233 (1976).
2. GOL's Willful or Malicious Standard -- The ordinary standard is a negligence standard, i.e., if the reasonable landowner would have, and this landowner did not, you have liability. Under § 9-103, however, a landowner is protected from all but "willful or malicious failure to guard, or to warn against, a dangerous condition, use structure or activity".
This requires a showing of a willful intent, in other words "[a] n owner's actions in creating a dangerous condition must be based on a showing of particular, not inferred, malice and willfulness, an not on simple negligence" Farnham v Kittinger, 83 NY2d 520, 529 (1994). Negligence is no longer in the picture, but you need a malicious or willful act to obtain liability. This is very difficult to establish or prove.
B. When does § 9-103 apply?
To receive the protection of § 9-103, the injured person must have been engaged in one of the enumerated activities and the land must be suitable for that activity.
1. Enumerated Activities -- As listed in the statute, the protected activities are hunting, fishing, organized gleaning, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleogical 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. There have been cases discussing whether a person walking on land was engaged in the listed recreational activity of hiking. It could conceivably be argued that a bicyclist was engaged in transportation, but "[o]bviously, that the bike was being used for transportation would not mean that its use was not also recreational" Iannotti v Consolidated Rail Corp., 74 NY2d 39, 47 (1989); see also, Weller v Colleges of the Senecas, 217 AD2d 285 (4th Dept 1995). Thus, even if the bicyclist was partially transporting, he or she could also be recreationing.
2. Suitability of the Land - In addition to the pursuit of one of the enumerated activities, to qualify for the protection of § 9-103, the land has to be suitable for the specific recreational activity. A property is suitable if it is physically conducive to the activity or sport and appropriate for that use. For example, an abandoned railway that was used by off-road vehicles was suitable for the activity of motorcycling, and the creation of a 10 foot deep pit with sides having 80 degrees of slope did not change the overall suitability. Thus, when the motorcyclist fell into the pit and was injured, § 9-103 barred recovery see, Bragg v Genesee County Agric. Socy., 84 NY2d 544 (1994).
Another example is where a girl was injured when she fell from a bicycle while riding down a steep roadway under construction. As part of the construction process the path was strewn with rocks. The court concluded that bicycle riding was not suitable on this land. No discussion of the sport of mountain biking is in the decision. In any event, the action was dismissed because the danger presented was open and obvious see, Ackerrnann v Town of Fishkill, 201 AD2d 411 (2d Dept 1994) (more on this in assumption of risk, infra).
Finally, another motorcyclist was injured when he fell 35 feet at a gravel mine. He had ridden the land numerous times, including the previous day, without incident. However, that day, "[a]s he reached the top of the path that ran up the earthen berm, his bike suddenly plunged into thin air before plummeting almost 35 feet into the bed of the landf~l." Apparently there had been a bit of earthwork since the plaintiffs ride the previous day. The highest court in New York barred plaintiffs claim, finding that the property was suitable for motorcycling see, Albright v Metz, 88 NY2d 656 (1996).
Because mountain bikers often seek out rugged terrain to challenge their technical handling skills, it is unlikely that the difficulty of the terrain would render the property unsuitable.
C. Special Issues
There are some things to keep in mind regarding § 9-103:
1. Farms -- Farm land is treated differently. Farm owners are subject to liability for gross negligence. Gross negligence is still negligence, but the negligence must be so exaggerated to represent a disregard of the consequences of the act and an indifference to the rights of others. It is equivalent to recklessness. Thsi way owners of farm land are not as protected as other landowners.
2. Fee For Use -- If a user has to pay a fee to enter and use the land, the protection offered by § 9-103 vanishes. Landowners who charge are subject to the ordinary negligence standard.
3. Invitee or Trespasser -- The protection of § 9-103 applies whether the landowner permits the user to enter the land or has posted the land.
II. Proposed Changes to the § 9-103
Mark McAniff can give you the history and current status of the proposed changes to § 9-103, so my focus is on the effects of the proposed changes, which fall into three main areas:
A. "any recreational use, including but not limited to"
Right now, a use has to be specifically enumerated to be a protected recreational activity. Bicycling is one of the activities, so this change does not directly impact our cause. However, as new ways of recreating grow, it is good to generally expand the protection offered by the statute.
B. "whether or not a farm"
This language attempts to remove the different standard for farm land. However, it is not proposed that the subsection separating out farm land be changed, so the proposed change would seemingly make the statute inherently contradictory on farm land and liability for gross negligence.
C. Definition of"consideration"
With the increase of privatization, more and more public land passes into private hands. Landowners are faced with the economic necessities inherent in owning land, and the proposed amendment would permit not-for-profit corporations to charge a fee and still receive the protection of the statute as long as the fee is used for the operation and maintenance of the land or the acquisition or more land.
IlL Assumption of Risk Doctrine
Even if the protection offered by § 9-103 is not available to a particular landowner, it is likely that a suit brought by a mountain biker will get dismissed on assumption of risk grounds.
Assumption of risk is actually two distinct doctrines. The first is culpable conduct and reduces recovery in proportion to which the assumption of risk contributed to the injuries. In other words, if a plaintiff partially caused his or her own injury, that percentage fault reduces any recovery. It is the second doctrine, primary assumption of risk, that we are concerned with because it can operate to preclude recovery. Often applied in sporting or entertainment events, "[p]rimary assumption of risk eliminates or reduces the tortfeasor's duty of care to the plaintiff and, in the former case, constitutes a complete bar to recovery" Lamey v Foley, 188 AD2d 157, 163 (4th Dept 1993).
The doctrine of primary assumption of risk reflects the fact that certain activities contain a degree of inherent risk. By participating in an activity, you consent to those injury-causing elements that are inherent in the sport. As a result, by voluntarily participating in the activity, those risks inherent in the activity are assumed and defendant is relieved of its duty of reasonable care to plaintiff.
Mountain biking has inherent risks. By riding a bike on a trial, the cyclist knows there are roots, rocks, bumps, off-camber turns, streams, mud, dropoffs, branches, trees, wildlife -- all sorts of obstacles to be negotiated. We don't always make it, and all of us know that falling is part of our sport. If someone is injured while bicycling, showing the risks of mountain biking to the court will probably result in the case being dismissed.
Assumption of risk encompasses the idea that a defendant only has a duty to make the premises as safe as they appear to be. That rut or log, as long as it's just a root or log and not a trigger for a spring gun, cannot be the dangerous condition giving rise to liability. As in that case where the girl fell riding down a road under construction, because she saw the open and obvious rocks in her path, but decided to ride anyway, her suit was dismissed see, Ackermann v Town of Fishkill, 201 AD2d 411 (2d Dept 1994).
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