                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 17, 2014                     517931
________________________________

STEVEN KING et al., as
   Coadministrators of the
   Estate of KHALIL JAMAL
   GODFREY KING, Deceased,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

CORNELL UNIVERSITY,
                    Appellant.
________________________________


Calendar Date:   May 29, 2014

Before:   Peters, P.J., Rose, Egan Jr., Lynch and Devine, JJ.

                             __________


     Nelson E. Roth, Cornell University, Ithaca, for appellant.

     Leland T. Williams, Rochester, for respondents.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Rumsey, J.),
entered August 16, 2013 in Tompkins County, which denied
defendant's motion for summary judgment dismissing the complaint.

      On August 28, 2010, decedent, a 19-year-old sophomore at
defendant, fell to his death in a gorge on campus. Plaintiffs,
who are decedent's parents, commenced this action against
defendant to recover damages for negligence. Defendant answered
and, after limited discovery, moved for summary judgment
dismissing the complaint, arguing that it was immune from
liability pursuant to General Obligations Law § 9-103 and,
alternatively, not negligent as a matter of law. Recognizing
that decedent's status as a student does not preclude application
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of the statute (see Weller v Colleges of the Senecas, 217 AD2d
280, 285 [1995]), Supreme Court denied the motion in a thorough,
well written decision (41 Misc 3d 451 [2013]). Defendant now
appeals.

      We affirm. The circumstances leading up to decedent's
tragic fall, as described by his classmate, Damani Carter, are
not disputed. At approximately 3:30 a.m., the two students were
walking to a fraternity house on campus. Carter described
decedent as intoxicated, and others indicated that he may have
smoked marihuana earlier in the evening. As they walked,
decedent motioned for Carter to back up and then decedent ran
toward Carter, quietly saying "run, run." Not knowing why
decedent gave this direction, Carter started to run and decedent
passed him as they entered the gorge trail behind "the Fiji
fraternity." When Carter came to an opening in the trail, he
stopped and called for decedent to do the same, but decedent
continued on. Minutes later, Carter called decedent on his cell
phone, but there was no response. The next day, decedent's body
was found below the cliff bordering the trail where Carter last
saw him. The City of Ithaca Police Department investigated and
determined that decedent had crossed over a split rail fence that
ran along the trail in order to get to the cliff's edge.

      Defendant maintains that it is shielded from liability by
General Obligations Law § 9-103 (1) (a), which, as pertinent
here, "grants a special immunity to owners . . . from the usual
duty to keep places safe" when individuals use their property for
specified recreational activities, including hiking (Farnham v
Kittinger, 83 NY2d 520, 525 [1994]). The enumerated activities
covered under the statute "are essentially self-explanatory" (id.
at 526). "Hiking" has been described as "traveling through the
woods on foot" (Sega v State of New York, 60 NY2d 183, 193
[1983]) and as "traversing land 'by foot or snowshoe for the
purpose of pleasure or exercise'" (Cometti v Hunter Mtn.
Festivals, 241 AD2d 896, 897 [1997], quoting 6 NYCRR 197.2 [a]).
Comparatively, this Court recently determined that a person
walking her dogs on a paved walkway was not engaged in "hiking"
under the statute (see Drake v Sagbolt, LLC, 112 AD3d 1132, 1134
[2013]). With one exception not applicable here, a person
engaged in one of the enumerated activities is "presumed to be
                              -3-                517931

doing so for recreational purposes" without regard to his or her
subjective intent (Bragg v Genesee County Agric. Socy., 84 NY2d
544, 552 n 3 [1994]; see Farnham v Kittinger, 83 NY2d at 527-528;
Cometti v Hunter Mtn. Festivals, 241 AD2d at 897).

      The critical determination is whether decedent's activity
constituted "hiking" under the statute. As described, he ran
down the gorge trail and, in that literal sense, was "traveling
through the woods on foot," or "hiking," as defined in Sega v
State of New York (60 NY2d at 193). The statute, however, speaks
to specified recreational categories reflecting the intent of the
Legislature "to allow or encourage more people to use more
accessible land for recreational enjoyment" (Farnham v Kittinger,
83 NY2d at 525; see Sena v Town of Greenfield, 91 NY2d 611, 615
[1998]; Albright v Metz, 88 NY2d 656, 661-662 [1996]). Viewing
the facts in the light most favorable to plaintiffs, the
nonmoving party, we agree with Supreme Court that, under the
distinctive fact pattern presented, defendant did not establish,
as a matter of law, that decedent was "hiking" within the embrace
of General Obligations Law § 9-103 (1) (a) at the time of his
death (see Farnham v Kittinger, 83 NY2d at 525, 527-528).
Consequently, the court properly denied this aspect of
defendant's motion.

      Next, defendant maintains that since the dangers of the
gorge are open and obvious, it had no duty to warn decedent of
any hazards and that all reasonable measures to maintain the
property in a safe condition had been taken. A landowner is
required to both maintain its property in a reasonably safe
condition and "to warn of a latent, dangerous condition of which
the landowner is or should be aware" (Soich v Farone, 307 AD2d
658, 659 [2003]). The duty to warn does not extend to the open
and obvious dangers of natural geographic phenomena (see Cohen v
State of New York, 50 AD3d 1234, 1235 [2008], lv denied 10 NY3d
713 [2008]; Tarricone v State of New York, 175 AD2d 308, 310
[1991], lv denied 78 NY2d 862 [1991]; see also Freese v Bedford,
112 AD3d 1280, 1281 [2013]; Arsenault v State of New York, 96
AD3d 97, 101 [2012]; Walter v State of New York, 185 AD2d 536,
538 [1992]). While generally a question of fact, "[f]or a
condition to be open and obvious as a matter of law, it must be
one that could not be overlooked by any observer reasonably using
                              -4-                517931

his or her ordinary senses" (Arsenault v State of New York, 96
AD3d at 102 [internal quotation marks and citations omitted]).
Defendant likens this case to the situation in Tarricone, where
the plaintiff fell from a cliff ledge adjacent to an overlook
along the road, which "was open and obvious for all to see"
(Tarricone v State of New York, 175 AD2d at 309; see Doyle v
State of New York, 271 AD2d 394, 395-396 [2000]). The situation
here is not quite so clear-cut. In the area of decedent's fall,
approximately 35 feet from the cliff, there is a split rail fence
that borders the gorge side of the trail. The photographs and
videos submitted by defendant depict a sparsely wooded area
between the trail and the gorge, sloping downward toward the
gorge. Defendant maintains that the air space observable beyond
the trees reveals the rim of the gorge, rendering the cliff
hazard open and obvious as a matter of law. We disagree. Even
though the air space reflects a decline in the landscape, the
actual condition at the cliff's edge, and the 200-foot drop-off
from the edge, are not depicted. We agree with Supreme Court
that a question of fact remains as to whether the cliff's edge
was visible and obvious or presented a latent, dangerous
condition necessitating an appropriate warning (see Walters v
County of Rensselaer, 282 AD2d 944, 945-946 [2001]; compare
Walter v State of New York, 185 AD2d at 538).

      A further question is whether defendant took reasonable
measures to safeguard the area. In this regard, it is important
to recognize that the gorge area is open to the public and has
been designated as a recreational area (see ECL 15-2714 [3]
[hh]). Defendant provided affidavits and photographic evidence
showing that three signs were placed along the trail behind the
Fiji fraternity stating the following: "WARNING NATURAL AREA USE
EXTREME CAUTION." In addition, three lampposts were situated
along the trail in the area of decedent's fall, as well as the
split-rail fence. Finally, defendant provides incoming freshman
with a brochure entitled "The Gorges of Cornell – Path and Safety
Information." There is, however, no express warning as to the
proximity of the cliff to the trail, or any indication that the
lampposts illuminated the area leading up to the cliff's edge.

      In our view, the adequacy of the warnings and the safety
measures taken remain questions of fact for resolution at trial.
                              -5-                  517931

Accordingly, defendant has failed to demonstrate, as a matter of
law, that it is entitled to summary judgment dismissing the
complaint.

     Peters, P.J., Rose, Egan Jr. and Devine, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
