Opinion
# 2019-032-024 Claim No. 128391 Claim No. 128311 Motion No. M-93105 Motion No. M-93072
04-09-2019
TANYA A. ENGLER, as ADMINISTRATRIX OF THE ESTATE OF JORDYN M. ENGLER, DECEASED; and JEFFREY S. ENGLER v. THE STATE OF NEW YORK
E. Stewart Jones, Hacker & Murphy, LLP By: Ryan M. Finn, Esq. The Kindlon Law Firm, PLLC By: Lee C. Kindlon, Esq. Hon. Letitia James, Attorney General By: Douglas R. Kemp, Assistant Attorney General
Synopsis
Defendant's summary judgment motions denied.
Case information
| UID: | 2019-032-024 |
| Claimant(s): | TANYA A. ENGLER, as ADMINISTRATRIX OF THE ESTATE OF JORDYN M. ENGLER, DECEASED; and JEFFREY S. ENGLER |
| Claimant short name: | ENGLER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128391, 128311 |
| Motion number(s): | M-93105, M-93072 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | E. Stewart Jones, Hacker & Murphy, LLP By: Ryan M. Finn, Esq. The Kindlon Law Firm, PLLC By: Lee C. Kindlon, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 9, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Tanya Engler filed a claim as the administratrix of the estate of Jordyn Engler, her fourteen-year-old daughter who tragically drowned in the Esopus Creek on September 5, 2015, in the Town of Shandaken, New York. Specifically it is alleged that defendant, as landowner of the property, was responsible for the drowning, as it had notice of a dangerous condition, consisting of a large group of downed trees and other debris in the Esopus Creek known as a "strainer", and failed to remedy the condition. Jeffrey Engler, Jordyn's father, who was divorced from Tanya Engler at the time of Jordyn's death, was with Jordyn that fateful day. He commenced a separate action alleging that defendant, as the owner of the property, knew about the strainer, invited the public to use the Esopus Creek for tubing, dramatically increased the water flow that day, and took no action to remedy the strainer, which defendant knew was a dangerous condition.
Defendant filed a summary judgment motion in both actions, arguing that: (1) the release of water from the Shandaken Tunnel into the Esopus Creek is a function protected by governmental function immunity, because it was a discretionary decision to release the water; (2) General Obligations Law § 9-103 grants immunity to certain recreational activities, including boating which should include tubing; (3) the owner of property has no duty to warn or protect against an open and obvious condition that is inherent or incidental to the nature of the property; (4) the area where the drowning occurred is in the Catskill Park Forest Preserve which is protected by New York Constitution Article XIV, § 1, that ensures that such land "shall be forever kept as wild forest lands"; and (5) this Court should not create a duty that would be a limitless expansion of tort liability for naturally occurring features in wild waterways. In support of its motion for summary judgment, defendant submitted transcripts of examinations before trial and affidavits in support of its motion. Both Tanya Engler and Jeffrey Engler oppose defendant's summary judgment motions.
FACTS
Mr. Engler, who is an experienced tuber, intended to take Jordyn tubing in the Esopus Creek over the Labor Day weekend of 2015. Mr. Engler knew from Facebook that a portal release of water was happening that weekend which makes the water flow faster and rise higher (Deposition of Jeffrey Engler, hereinafter "Engler Dep.", p. 31). He claimed that a New York State website also provided the same information. Jordyn had limited tubing experience and never participated in tubing on the Esopus Creek.
On September 5, 2015, Mr. Engler and Jordyn went to F&S Tube Rental (F&S) around 10:00 a.m. to rent tubes (Engler Dep. at 20, 23). There, Mr. Engler signed the appropriate paperwork and F&S gave them a "quick" safety briefing (id. at 26). When Mr. Engler and Jordyn were aboard the bus taking them to the drop off point, Mr. Engler questioned why they were not being brought to the site that he had previously used on prior occasions, near the "Cemetery Lot" (id. at 29). The driver explained that F&S simply did not drop off at that location any longer (id. at 27). Mr. Engler asked the bus driver if he and Jordyn could be taken to Cemetery Lot site and the bus driver said "no problem" (id. at 28). Mr. Engler testified that the driver may have said that the cemetery drop-off site was dangerous (id. at 35). After the bus driver dropped them at the cemetery drop-off site, Mr. Engler and Jordyn took their tubes and walked down a path to the Esopus Creek (id. at 38). There were no signs along the way (id. at 39).
When Mr. Engler and Jordyn first entered the creek, the current was hardly moving (Engler Dep., p. 44). They walked out ten to fifteen feet and the current became very strong (id.). The water was approximately one and a half feet high, coming up a little higher than Mr. Engler's knee (id. at 43). At that point, Mr. Engler heard a very loud sound downstream, which he later learned was the strainer (id. at 41-42), but he could not see the strainer due to the angle of the creek and the location of the strainer (id. at 45). At that point, Mr. Engler observed that the current was stronger than what he experienced before in that area, and he made the decision for him and Jordyn to leave that area and walk to a different area (id. at 47). They were each holding on to their tubes and walked halfway out of the creek before stopping to take a picture together (id.). While Mr. Engler was putting the camera back on his wrist, he heard Jordyn scream (id.). By the time Mr. Engler turned around, she had been swept into the creek and was ten to fifteen feet away (id.). Mr. Engler immediately jumped deeper into the creek and screamed to Jordyn (id. at 49-50). Jordyn became trapped underneath a tree in the strainer, but threw her arm into the air to signal where she was (id. at 50). Mr. Engler reached Jordyn's location but could not extricate her from underneath the tree (id. at 51). He became unconscious and was swept away by the current, eventually waking up downstream on the opposite side of the creek (id. at 52). He was eventually rescued by an emergency worker (id. at 57).
Walter J. Maleonskie was the driver of the bus for F&S on September 5, 2015 (Deposition of Walter J. Maleonskie, hereinafter "Maleonskie Dep.", p. 7). He remembered the Englers coming into the shop to pick up tubes. He testified that the normal process was for the tubers to receive a three to five minute safety briefing. Tubers were also given life jackets and offered safety helmets (id. at 13). There was also a sign posted about the dangers of the Allaben Cemetery site (Allaben site), which is the site at which Mr. Engler requested to be dropped off, including that the strainers made that location unsafe and that only experienced tubers should use that spot to enter the creek (id. at 14-15). The sign stated that F&S did not drop people off at the Allaben site (id. at 15). Mr. Maleonskie testified that Mr. Engler asked about being dropped at the Allaben site multiple times (id. at 16). On that day, Mr. Maleonskie dropped the Englers off at the Allaben site to look around, because Mr. Engler expressed that he had many memories of tubing there (id. at 15-16). Mr. Maleonskie left them so that they could look around and he intended to return for them to take them to the designated F&S drop off point (id. at 16-17). The Englers took their life jackets and tubes with them off the van (id. at 22). By the time he returned for them, there were emergency vehicles everywhere (id. at 25).
Michael Formont was a co-owner of F&S in 2015 (Deposition of Michael Formont, hereinafter "Formont Dep.", p. 6). He testified that prior to Hurricane Irene, the put-in site for tubing was at the Allaben site, or the Allaben fishing access point (id. at 9). After Hurricane Irene, the put-in location was changed to a location downstream from the Allaben site, because trees built up larger over the years on the left side of the creek, and the water levels were lower at the Allaben site (id. at 9). He remembered Mr. Engler coming into his shop on September 5, 2015. Mr. Engler said that he always used F&S in the past (id. at 11). Mr. Formont gave his three minute safety briefing. He and Mr. Engler engaged in conversation regarding the Allaben site, and Mr. Formont explained that debris existed there, but he did not elaborate about the size of the debris nor did he use the word strainer (id. at 17).
Brenan Tarrier, an Assistant Engineer for the Bureau of Water Resource Management at the Department of Environmental Conservation (DEC), is responsible for requests made to the DEC for recreational releases of water into the Esopus Creek (Affidavit of Brenan Tarrier, hereinafter "Tarrier Aff." ¶ 43). He explained that the Esopus Creek is a tributary of the Hudson River and is impounded to create the Ashokan Reservoir (id. ¶ 14). The Schoharie Creek is a tributary of the Mohawk River and is impounded to create the Schoharie Reservoir (id. ¶ 15). These two reservoirs are the only reservoirs in the Catskill Watershed (id. ¶ 16). The New York City Watershed is comprised of the Croton Watershed, and the Catskill and Delaware Watersheds (id. ¶ 18). The Shandaken Tunnel connects the Schoharie Reservoir to the Esopus Creek and is upstream from where Jordyn drowned (id. ¶ 21). The transfer of water within the New York City water system from the Schoharie Reservoir through the Shandaken Tunnel to the Esopus Creek is governed by 6 NYCRR Part 670 (id. ¶ 23). A maximum of four recreational releases may occur between May 1 and October 31 of any year (id. ¶ 43; 6 NYCRR 670.5 [b]). All requests for recreational releases must be submitted to the DEC Reservoir Releases Manager in writing no later than April 15 of each year (Tarrier Aff. ¶ 39). Mr. Tarrier reviews these requests and considers several factors to determine whether to approve the request (id. ¶¶ 48-54). If the DEC approves the request, Mr. Tarrier sends a request to the Reservoir Releases Manager for the New York City Department of Environmental Protection (id. ¶ 55). For both approvals and denials, he notifies the entity or entitites who made the request, and directs that the DEC's website be updated to reflect whether the request was approved or denied (id. ¶ 56). On November 25, 2014, Mr. Tarrier received a request from Marc Hollander, on behalf of the Kayak and Canoe Club of New York, the Appalachian Mountain Club, the Town of Shandaken, and the American Canoe Association, for four recreational releases between June and October 2015 (id. ¶ 57). Two release dates were approved, one of which was September 5-7, 2015 (id. ¶ 60).
William Rudge is a Natural Resources Supervisor at the Region 3 Office of the DEC (Affidavit of William Rudge, hereinafter "Rudge Aff." ¶ 1). He has worked for the DEC in various positions since 1985 (see Rudge Aff.). He has been aware of woody debris located in the Esopus Creek for as long as he has worked at the DEC (Deposition of William Rudge, hereinafter "Rudge Dep.", p. 10). The Esopus Creek is located within the Shandaken Wild Forest management plan, which is a management unit of the Catskill Forest Preserve (id. at 12). He stated that no protocols existed for removing woody debris in that area (id.). The policy of the DEC for woody debris on State lands is that such land is governed by the "Forever Wild" provision of the State Constitution (id. at 10). Although the DEC puts up signs near the Esopus Creek regarding the rules and regulations regarding fishing access sites and invasive species, no signs are placed regarding woody debris in the creek (id. at 15-16). Access to the Esopus Creek from the Allaben site is intended for fishermen, although the DEC is aware that other users, such as boaters or swimmers, utilize the site (id. at 16). The DEC was aware that tubers accessed the Esopus Creek at that point (id. at 18).
Mr. Rudge testified that Mike Flaherty of the DEC attended a meeting of the Stream Access and Recreation Committee of the Ashokan Watershed Stream Management Program (AWSMP) in January 2012 and October 2014 (Rudge Dep. at 13, 19). At these meetings it was suggested that more signage be erected to warn about the potential hazards in the area, but the DEC did nothing to address the issue (id. at 14-15). However, Mr. Rudge was not aware of the concerns raised during the meetings prior to Jordyn's drowning (id. at 15). Although posting a sign about the danger would be possible, it was not the policy of DEC to do so (id. at 16, 18). But after Jordyn's death, the DEC posted a sign (id. at 22). He did not think that the DEC inspected the Esopus Creek for strainers before Jordyn's death, and they have not done so after her death (id. at 22-23). He testified that the strainer is visible from the path leading down to the creek from the parking lot (id. at 65).
During the weekend of September 5, 2015, there was a recreational release of water from the Schoharie Reservoir from the Shandaken Tunnel, which he admitted was an invitation for people to use portions of the Esopus Creek for tubing and kayaking (Rudge Dep. at 24). Mr. Rudge testified that after Jordyn's death, the DEC did not analyze its properties to assess if there were other dangers because, according to Mr. Rudge, the Allaben site is not a "developed" facility to which the DEC invites the public, like a hiking trail (id. at 23). However, he wrote an email to Mike Flaherty and others, on September 8, 2015 after Jordyn's death stating: "One issue that we should address is the perception that Article XIV of the State Constitution is to blame. While his (sic) area is managed under that provision (forever wild), that does not prevent us from undertaking actions to eliminate hazards" (Finn Aff., Exhibit A, p, 17). The e-mail also stated that hazards are "routinely" eliminated on hiking trails (id.).
Almost a month after Jordyn's death, the DEC oversaw a project where the New York National Guard performed chainsaw work in the Esopus Creek to clear the strainer (Rudge Dep. at 36). According to Mr. Rudge, no permit for the work was necessary because the DEC oversaw the project (id. at 37).
Despite knowing about other strainers that existed in the creek as far back as 2002, the DEC did not develop a plan to remove them from the creek (Rudge Dep. at 43). Mr. Rudge was confronted with a letter written by an owner of a local tubing company, dated June 12, 2007, alerting the DEC about two dangerous strainers in the creek, one of which was the strainer where Jordyn drowned (id. at 47-48). The owner of the tubing company indicated that the strainers developed as a result of a flood in 2005 and asked the DEC for help to alleviate the problem. The DEC did not take any action after receipt of this letter (id. at 49). Mr. Rudge testified that there have been at least four deaths on the Esopus Creek due to individuals being swept into strainers (id. at 79). At a meeting of the AWSMP Stream Access and Recreation Working Group on September 30, 2015, Mr. Rudge indicated that the "forever wild" provision is not an obstacle when addressing a public health issue (Finn Aff., Exhibit A, p. 39).
Brian Drumm is the Manager of the Bureau of Ecosystem Health in the Division of Fish & Wildlife at the Region 3 Office of the DEC (Affidavit of Brian Drumm. hereinafter "Drumm Aff." ¶ 1). He is responsible for the Stream Protection Program in Ulster and Sullivan Counties (id. ¶ 8). Mr. Drumm states that woody debris in streams is not "inherently bad" and is important to healthy stream systems (id. ¶ 15). Unless a property owner intentionally places a rock or debris in a stream without a permit, the DEC has no legal mechanism to remove woody debris from a stream, even if it causes a hazard (id. ¶ 20). Because New York State has more than 70,000 miles of rivers and streams, it is not "fiscally or physically possible" to remove all debris from all streams (id. ¶ 22).
Marc Hollander, an active kayaker on the Esopus Creek and an active member of several associations regarding canoeing and kayaking, testified that the strainer became worse after Hurricane Irene in 2011 (Deposition of Marc Hollander, hereinafter "Hollander Dep.", pp. 13-14). The strainer was approximately 25 feet wide and five feet high (id. at 24). He took a group out in August 2014 upstream from the strainer, and after observing the conditions of the creek, including the strainer, he did not allow several people in his group to put in (id. at 25). There was a meeting of the AWSMP in October 2014 meeting wherein the conditions of the strainer were discussed and a representative from the DEC, Mike Flaherty, was present. Mr. Hollander discussed the possibility of signage at the October 9, 2014 for anglers and white-water enthusiasts to notify them of possible dangers in the creek (Finn Aff., Exhibit A, p. 2). It was noted that individuals received permission to remove hazards by DEC, but are reluctant to do so due to liability concerns (id. at 4).
After Jordyn's drowning, an emergency meeting of the AWSMP Stream Access and Recreation Working Group was called. Mike Flaherty and William Rudge attended. Mr. Hollander received permission from Mr. Rudge to put up two signs, at the road and at the trail near the Allaben site, to warn of the hazard of the strainer (Finn Aff., Exhibit A, p. 9). The sign by the trail was later replaced by the DEC with its own sign. Mr. Hollander did not believe the strainer was visible from the end of the path at the put-in point at the Allaben site. There is a bend in the creek and a bank blocking the view, so that the strainer does not come into view until a person is in the creek (Hollander Dep. at 90). He testified that if a person did not know what to look for, it may just look like trees (id. at 91).
Harry Jameson, who has run a white-water rafting business on the Esopus Creek for 38 years, was informed of Jordyn's drowning by the DEC who called him that morning looking for the contact information as to how to shut down the water release, so that they could extract Jordyn's body (Deposition of Harry Jameson, hereinafter "Jameson Dep.", p. 9). He concurred with Mr. Hollander that the strainer was 25 feet wide and five feet underwater (id. at 12). He testified that the strainer was naturally created in 2005, but it had been the size it was at the time of Jordyn's death since 2011 (id. at 12-13). He stopped using the Allaben cemetery access point in 2005 because of the strainer (id. at 20). In 2007, he wrote a letter to the Regional Director of thr DEC, complaining of the strainers and the safety of water enthusiasts (Finn Aff., Exhibit A, p. 34). The DEC responded that it would issue him a temporary revocable permit, if he would care to remove the strainer (Jameson Dep. at 20). The DEC also told him that the strainer was on State land and was protected by the "forever wild" provision of the State Constitution (id. at 22). Mr. Jameson ultimately decided not to apply for a temporary revocable permit to remove the strainer himself, as he was concerned about costs and liability (id. at 57).
DISCUSSION
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 [1980]). The proponent of a motion for summary judgment must establish a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here the claimants (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212 [b]).
Before the Court reaches the question of whether material issues of fact exist as to claimants' negligence cause of action, the court must determine whether defendant " 'was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose' " (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 713 [2017], quoting Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]). In that regard, the Court of Appeals has recognized that "[a] governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its government and proprietary functions" (Miller v State of New York, 62 NY2d 506, 511-512 [1984]). At one end of the continuum are purely governmental functions, which are " 'undertaken for the protection and safety of the public pursuant to the general police powers' " (Sebastian v State of New York, 93 NY2d 790, 793 [1999], quoting Balsam v Delma Eng'g Corp., 90 NY2d 966, 968 [1997] [additional citations omitted]). On the other end of the continuum are "proprietary functions in which governmental activities essentially substitute for or supplement 'traditionally private enterprises' " (id., quoting Riss v City of New York, 22 NY2d 579, 581 [1968]; see also Drever v State of New York, 134 AD3d 19, 22 [2015]). The State is generally immune from negligence claims arising from activities that are purely governmental functions, absent a special relationship between the State and the injured party (see Drever v State of New York, supra at 21). In contrast, the State is subject to suit under ordinary negligence principles applicable to non-governmental entities where the conduct at issue constitutes a proprietary function (id. at 22).
"The varying nature of civic activities engaged in by the State may sometimes partake of both proprietary and governmental aspects" (Sebastian v State of New York, supra at 793). Thus, to categorize an act along the aforesaid continuum, the Court must carefully "examine 'the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred' " (id. at 794, quoting Miller v State of New York, 62 NY2d at 513 [internal quotation marks and additional citations omitted]). Claims against the State which are alleged to arise out of the ownership of its land must be carefully scrutinized to determine whether the alleged act or omission implicates a proprietary responsibility or a governmental one (Miller v State of New York, supra at 513).
Here, the Court is presented with a specific act and an omission to act out of which Jordyn's drowning allegedly arose: the release of the water into the Esopus Creek and the non-removal of a known strainer from the Esopus Creek.
Defendant argues that the release of the water was a discretionary governmental act for which it is immune, and relies upon County of Nassau v S. Farmingdale Water Dist., 62 AD2d 380 [2d Dept. 1978]. Defendant's reliance on County of Nassau is misplaced. In that case, the act in question was that of a municipality supplying water to its inhabitants, and the Court held that such act was a governmental function as it was "directly related to the health, safety and welfare" of the public (County of Nassau v S. Farmingdale Water Dist., supra at 390). In Billera v Merritt Constr., Inc., the Third Department explained that "where a municipality can be seen to be serving dual governmental and proprietary roles, we must look to 'the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred' " (Billera v Merritt Constr., Inc., 139 AD3d 52, 57 [3d Dept. 2016], quoting Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 [1982]). Here, the water was released "to protect and enhance the recreational use of the of waters" (Tarrier Aff. ¶ 37). Significantly, Mr. Tarrier's affidavit establishes that the main purpose of the release of water into the Esopus Creek on September 5, 2015 was recreational, and was to be performed "without impairing an adequate supply of water for power production or for any municipality which uses water . . . for drinking and other purposes" (id. ¶ 38, quoting 6 NYCRR 670.1). In Billera, the Third Department found that questions of fact remained as to whether a municipality's failure to repair a water main implicated a governmental function or a proprietary function as modern water systems are used to supply water to both homes, which may implicate a proprietary function, and hydrants, which may implicate a governmental function (Billera, supra, at 57). Here, the Court does not find such a dual purpose, rather, the Court finds that the release of water into the Esopus Creek was a proprietary function, akin to an amusement park. Mr. Tarrier's affidavit establishes that the primary purpose of the September 5, 2015 water release was recreational, and that considerations as to whether the release would impair water supply for drinking and other purposes were secondary. Thus, the release of water into the Esopus Creek on September 5, 2015 was not solely "related to the health, safety and welfare of the community" (see Matter of Bethpage Water Dist. v Daines, 67 AD3d 1088, 1090 [3d Dept. 2009], lv denied 14 NY3d 707 [2010]). Based upon the foregoing, the Court determines that the release of the water was a proprietary function and defendant is not immune from liability for allegations of negligence arising from the release of water into the Esopus Creek on September 5, 2015.
Regarding the State's failure to remove the strainer, the law provides that where the State acts in a proprietary manner as a landowner, and must take reasonable precautions to prevent accidents which might foreseeably occur on its property due to dangerous terrain, including a duty to warn against hazards by posting signs (Preston v State of New York, 59 NY2d 997, 998 [1993]; Basso v Miller, 40 NY2d 233, 238-239 [1976]; Cohen v State of New York, 50 AD3d 1234, 1235 [3d Dept. 2008], lv denied 10 NY3d 713 [2008]; MacDonald v City of Schenectady, 308 AD2d 125, 128 [3d Dept. 2003]). Here, the ownership of the land is not in dispute. By the testimony of Mr. Rudge, and the attendance of Mr. Flaherty at the AWSMP meetings, the defendant knew of the existence of the strainer, and the dangers presented by it (Rudge Dep. at 10, 48-49; Finn Aff., Exhibit A, p. 2). Trees that collected debris remained across part of the Esopus Creek for many years (Rudge Dep. at 48-49; Finn Aff., Exhibit A, p. 34). A question of material fact exists as to whether it was reasonable for defendant to ignore it, particularly when high volume releases of water occur in that area up to four times per year, and the DEC was aware of the recreational uses of the creek (Rudge Dep. at 24).
An open and obvious risk may effect the foreseeability of an accident or the comparative negligence of a claimant and negate a landowner's duty to warn, but would not obviate the duty to keep the premises in a reasonably safe condition (MacDonald v City of Schenectady, supra, at 128-129). Whether an alleged dangerous condition is latent or open and obvious is generally a question of fact (Walters v County of Rensselaer, 282 AD2d 944, 945 [3d Dept. 2001]), that requires clear and undisputed evidence (Tagle v Jakob, 97 NY2d 165, 169 [2001]).
Defendant maintains that it did not have a duty to warn those using the Esopus Creek about the strainer because it was an open and obvious condition. In Preston v State of New York, 59 NY2d 997, 998-999 [1983], the Court of Appeals held that when the State invites people on to its land for a specific purpose, like swimming, it has a duty to inspect and remove hazards or to give appropriate warnings. This duty is not created by the mere ownership of the land, but by inviting the public to the land (Preston v State of New York, supra at 998). The Court recognized that the State is not an insurer for all areas to which it invites the public; rather, there must be some proof that the potential danger could have been neutralized or should have been discovered by defendant (id. at 999).
Here, the State posted on a website that the release of the water would occur on a certain date, thereby alerting the public that the conditions on the Esopus Creek would be conducive to recreational activities for those who enjoy a rapid current (see Tarrier Aff. ¶ 56). The State knew that a dangerous strainer was in the area of the water release. However, the State has not established by clear and undisputed evidence that the strainer was open and obvious to the Englers (see Tagle v Jakob, supra at 169). The testimony of Mr. Engler and Mr. Hollander is contrary to that of Mr. Rudge as to whether the strainer was observable from either where the Englers were standing when Jordyn was swept away, or from the bank of the Esopus Creek where the path is located. Further, the photographic evidence submitted on this motion does not depict the strainer from the place where the Englers were standing when Jordyn was swept away. Based upon the foregoing, the Court is unable to ascertain whether the danger presented by the strainer was open and obvious.
Defendant also maintains that the duty to warn or protect does not extend to natural geographic phenomena, the dangers of which can be readily observed by those employing the reasonable use of their senses (Arsenault v State of New York, 96 AD3d 97, 101 [3d Dept. 2012]; Cohen v State of New York, 50 AD3d 1234, 1236 [3d Dept. 2008], lv denied 10 NY3d 713 [2008]; Cramer v County of Erie, 23 AD3d 1145, 1146 [4th Dept. 2005]). In Cohen, supra, the Court held that a whirlpool in a State park was an open and obvious natural geographic phenomena (Cohen v State of New York, supra at 1236). The Court in Cohen also noted that the State does not owe a duty with respect to transitory conditions in particular, such as sandbars (id.). Other types of transitory natural geographic phenomena are: sandbars, the ocean floor, and recently formed rip currents (Herman v State of New York, 63 NY2d 822 [1984]; DeWick v Vill. of Penn Yan, 275 AD2d 1011 [4th Dept. 2011]; Graham v County of Suffolk, 34 AD3d 527 [2d Dept. 2006]; Smyth v County of Suffolk, 172 AD2d 741 [2d Dept. 1991]). Here, the strainer in the Esopus Creek was stationary, and had been the same approximate size for several years (Jameson Dep. at 12-13). Moreover, defendant has not established that the dangers presented by the strainer are "readily observed" (Arsenault v State of New York, supra at 101). Thus, the Court finds that defendant has not set forth sufficient evidence that the danger posed by the strainer was readily observable as a natural geographic phenomena.
Defendant's argument that the non-removal of the strainer was a reasonable action because of the status of the land as "forever wild" under Article XIV of the New York State Constitution is of no avail.
The purpose of [this] constitutional provision . . . was to prevent the cutting or destruction of the timber or the sale thereof, as had theretofore been permitted by legislation, to the injury and ruin of the Forest Preserve. To accomplish this end in view, it was thought necessary to close all gaps and openings in the law, and to prohibit any cutting or any removal of the trees and timber to a substantial extent (Association for Protection of the Adirondacks v MacDonald, 253 NY 234, 238 [1930]; see also Matter of Residents' Comm. to Protect the Adirondacks, Inc. v Adirondack Park Agency, 2 Misc 3d 1221[A], 2009 NY Slip Op 51542[U] [Sup Ct, Albany County 2009]).
Thus, the Court of Appeals has "indicated that only those activities involving the removal of timber 'to any material degree' will run afoul of the constitutional provision" (Matter of Balsam Lake Anglers Club v Department of Envtl. Conservation, 199 AD2d 852, 853 [3d Dept. 1993], quoting Association for Protection of the Adirondacks v MacDonald, supra at 238; see also Matter of Protect the Adirondacks! Inc. v Department of Envtl. Conservation, 42 Misc 3d 12227[A], 2013 NY Slip Op 52299[U] [Sup Ct, Albany County 2013]). The original purpose for the passage of Article XIV was to stop the unchecked removal of timber, which was causing "depredations" on forest preserve land (Association for Protection of the Adirondacks v MacDonald, supra at 239). Defendant does not present any interpretation of Article XIV that suggests that the purpose of that constitutional provision was to prevent the removal of a hazardous conglomeration of downed trees and other debris that has fallen into a stream frequently used for recreational purposes by the public. Mr. Rudge's memoranda to Mr. Flaherty and others after Jordyn's death substantiates that the DEC knew that the "forever wild" argument was tenuous at best (Finn Aff., Exhibit A, p. 17). To raise this as a sacrosanct defense to avoid liability, when the DEC had its own doubts, undermines an important constitutional provision which should be used sparingly and under the proper circumstances.
The Court further finds that General Obligations Law § 9-103 does not apply to the instant action. Courts have found that the Legislature carefully delineated limited activities for which defendant could not be held liable for damages (Sega v State of New York, 60 NY2d 183, 919 [1983] [holding that the scope of General Obligations Law § 9-103 is "restricted to a limited number of activities"]; see also Cummings v Manville, 153 AD3d 58, 64 [4th Dept. 2017], appeal dismissed 30 NY3d 959 [2017]; King v Cornell Univ., 119 AD3d 1195, 1196-1197 [3d Dept. 2014]; Drake v Sagbolt, LLC, 112 AD3d 1132, 1134 [3d Dept. 2013]; Rochette v Town of Newburgh, 88 AD2d 614, 615 [2d Dept. 1982], appeal dismissed 57 NY2d 777 [1982]). Tubing is not a specified activity within General Obligations Law § 9-103 for which landowners are shielded from liability and the Court declines to interpret the statute in general terms to include tubing within the parameters of boating.
The requirement of specificity of the activity for which the landowner seeks to be shielded from liability is underscored by recent legislative attempts to amend General Obligations Law § 9-103 to shield State and public corporations from liability for accidents resulting from the specific activities of kayaking, surfboarding and scuba diving on New York City beaches. The bills to provide immunity from liability for accidents resulting from said activities died in committee during two consecutive legislative sessions (2015 NY Senate Bill S3006; 2014 NY Senate Bill S7294).
Based upon the foregoing, it is hereby
ORDERED that defendant's motions for summary judgment (M-93105; M-93072) are DENIED. Claim numbers 128311 and 128391 will proceed to a trial on liability on October 21-25, 2019. The parties shall appear for a pre-trial telephone conference on October 15, 2019 at 10:00 a.m.
April 9, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim (Claim No. 128311), filed on August 4, 2016. 2. Verified Claim (Claim No. 128391), filed on August 22, 2016. 3. Notice of Motion for Summary Judgment (Claim No. 128311), dated November 6, 2018; Affirmation in Support of Motion for Summary Judgment, affirmed by Douglas R. Kemp, AAG on November 6, 2018, with Exhibits A through L annexed thereto; and Memorandum of Law in Support of Motion for Summary Judgment, dated November 6, 2018. 4. Notice of Motion for Summary Judgment (Claim No. 128391), dated November 6, 2018; Affirmation in Support of Motion for Summary Judgment, affirmed by Douglas R. Kemp, AAG on November 6, 2018, with Exhibits A through K annexed thereto; and Memorandum of Law in Support of Motion for Summary Judgment, dated November 6, 2018. 5. Affidavit of Brian Drumm, sworn to on November 5, 2018. 6. Affidavit of William Rudge, sworn to on November 5, 2018. 7. Affidavit of Brenan Tarrier, sworn to on November 1, 2018. 8. Affirmation in Opposition to Defendant's Motion for Summary Judgment, affirmed by Ryan M. Finn, Esq. on January 9, 2019, with Exhibit A annexed thereto. 9. Affirmation of Lee C. Kindlon, Esq., affirmed on December 20, 2018, with Exhibits 1 through 2 annexed thereto; and Memorandum of Law in Response and Opposition, dated December 26, 2018.