Sega v. State , 89 A.D.2d 412 ( 1982 )

OPINION OF THE COURT

Casey, J.

Peekamoose Campsite is a State owned and operated 700-acre public recreational facility located in Ulster County. On July 14, 1976, claimant, a 24 year old, 5 foot 7 inch, 155-pound woman, was acting as a counsellor to a group of teen-age hikers and had, after walking for about two hours, arrived at a bridge which spanned the Rondout Creek in the campsite. The bridge had guardrails on each side consisting of two two inch in diameter horizontal metal pipes. These guardrails were held in position by perpendicular pipe posts with “T” couplings, spaced 8 to 10 feet apart and set in a concrete base. The top horizontal pipe was 3 to 4 feet above ground level and the lower pipe about one-half that distance. When her hiking party stopped at the bridge, claimant elected to sit on the top horizontal pipe of the railing of the second section, with her feet dangling out over the water which flowed 18 to 20 feet below. Having been in that position only a minute, the pipe on which she was seated pulled out of its coupling nearest the entrance to the bridge and collapsed, causing her to fall into the creek.

Claimant contended at trial of the liability issue that the cause of the railing’s collapse was a vehicular accident that had occurred on the 1975 Labor Day weekend, about 10 months before. At that time, a vehicle had struck a cable that had been stretched between the two upright pipes at the bridge entrance to bar vehicles from using the bridge. As a result, the end pipe which held the cable on the side of the bridge on which claimant ultimately sat, was bent inward. Employees of the State, when notified of this accident, inspected the damage, found it slight and decided that repairs were not necessary. Claimant’s engineer testified that the inward bending of the first upright by the vehicular accident twisted the second upright sufficiently to loosen or to slightly displace the top rail from its couplings at that second juncture and when claimant sat on the railing of the second section, her weight caused it to separate completely from its coupling and to collapse, causing her to fall.

The State, on the other hand, urged that after the prior accident of which it admits notice, its employees inspected the damage on several occasions and always found the slightly bent upright firm and solid; that claimant herself also found it so when she shook it before seating herself on the railing; that her use of the railing was not reasonably foreseeable; that claimant’s conduct alone caused her injury and, therefore, the State should not be held liable.

The trial court found that the State owned and controlled the bridge but that the State was not negligent in failing to realize that the prior accident caused a weakening of the rail on which claimant sat, and that the inspections made by the State revealed no defect in the railing and, therefore, the State was not negligent. Accordingly, the claim was dismissed.

Although the Court of Claims absolved the State from ordinary negligence in these circumstances, we believe that the provisions of section 9-103 of the General Obligations Law provide the applicable standard here, and limit the State’s liability more than that of an owner of nonpublic recreational premises for negligence. Since this standard of care is imposed upon the State by statute, the trial court was bound to take judicial notice thereof (CPLR 4511, subd [a]). In our view, public policy prohibits the application to the State of a lesser standard of care than that required by the statute simply because the State failed to assert the statutory standard at trial.^* We also find that although claimant was not actually hiking at the time of her accident, her seating herself on the guardrail was incidental to her entry of the campsite and also to her hiking activity (Curtiss v County of Chemung, 78 AD2d 908, 909), and, therefore, is within the statute.

As the owner and operator of this public campsite, the State, as any owner of lands who opens them for public use, is liable to persons engaged in the recreational activities enumerated in section 9-103 of the General Obligations Law only “for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity” (General Obligations Law, § 9-103, subd 2, par a; Cutway v State of New York, 89 AD2d 406 [decided herewith]). This standard is nothing more than a statutory restatement of the common-law duty of care owed to a licensee (Wight v State of New York, 93 Misc 2d 560, 563) and remained unaffected by the decision in Basso v Miller (40 NY2d 233) which overruled the prior common-law categories of landusers (Curtiss v County of Chemung, supra, p 910).

Translating this statutory standard into common-law language, claimant was required to prove that the railing of this bridge on which she sat constituted an inherently dangerous instrumentality, known to the State, which the State had reason to believe claimant could not have discovered for herself and that the State failed to exercise the necessary degree of care to prevent foreseeable injury to her by appropriate warnings and otherwise (Beauchamp v New York City Housing Auth., 12 NY2d 400,405; Curtiss v County of Chemung, supra). Claimant has failed to prove a breach of this statutory duty. Even if the railing could be considered an inherently dangerous instrumentality, a fact not free from doubt, claimant’s injury was not reasonably foreseeable, but rather was caused by her own conduct in electing to use the railing as a perch from which to view the scenic surroundings and not as the handrail for which it was intended. Furthermore, claimant admits that she tested the railing by shaking it before she climbed upon it and found it to be firm, a condition which was also found by the State employees who inspected it after the 1975 Labor Day accident. The condition of the railing before claimant’s accident was as apparent to claimant as it was to the State. Therefore, the State would have no reason to believe that claimant could not have discovered the dangerous condition herself, if the State employees after their inspection did not know it was dangerous.

Accordingly, claimant’s burden under the statute (General Obligations Law, § 9-103, subd 2, par a) was not met and the trial court properly dismissed the claim.

The judgment should be affirmed, without costs.

* Martin v City of Cohoes (37 NY2d 162), relied upon by the dissent, does not require a contrary result. Martin involved the use at trial of an incorrect condition precedent (notice of defect) as an element of the plaintiff’s cause of action. Here, however, we are confronted with the trial court’s application of the wrong standard of care, which goes to the very heart of the merits of this case. Our power to review a trial court’s improper ruling in the interests of justice despite the defendant’s failure to object is well settled (see 7 Weinstein-Korn-Miller, par 5501.11). Moreover, since the State is the defendant herein, and public moneys are at issue, the strong public policy considerations referred to in Martin come into play.