State Not Liable for Hiker Death

In a June 7, 2012 decision in Arsenault v. New York State, the Appellate Division, Third Department dismissed plaintiffs’ claims (and reversed an earlier decision, which I wrote about here) arising from plaintiff’s decedent being struck and killed by falling rocks while hiking in a state park.  The Court of Claims had denied summary judgment to defendant because there was a question of fact as to the adequacy of the warning signs.

As a landowner, Defendant New York State had the same duty as any other landowner, namely, “to take reasonable precautions to prevent accidents which might foreseeably occur as the result of dangerous terrain on its property … which includes a duty to warn others of the hazards existing thereon”.  However, the “duty to warn … does not extend to open and obvious’ dangers – particularly those encompassing natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses.”

While the court did not find that the falling-rock danger was “open and obvious” as a matter of law, it nonetheless found that “the warnings that defendant admittedly provided were sufficient to apprise claimants and decedent of the very danger that they ultimately encountered.”   The relevant question was “whether the signs that were provided by defendant … sufficiently conveyed the specific danger to which claimants and decedent would be exposed by entering the creek bed and proceeding to the base of the falls”.  The court answered this question in the affirmative:

While claimants each testified that they did not recall seeing any of the relevant warning signs, there is no dispute that those signs were in place on the day in question[.] … [I]n addition to the sizeable “DO NOT ENTER” sign, the remaining warning signs on the pedestrian bridge not only instructed claimants and decedent to “STOP,” “PROCEED NO FURTHER” and “RETURN TO [THE] TRAIL” but, further, expressly and unequivocally advised claimants and decedent of the very hazard that ultimately gave rise to this claim, i.e., falling rocks.  Thus, we are of the view that the size and placement of the signs posted and maintained by defendant, as well as the language employed, were sufficient – as a matter of law – to warn claimants and decedent of the peril at issue. … Simply put, claimants and decedent were bound to see that by which the ordinary operation of their senses was there to be seen … and, although they had been “invited” to explore the park and enjoy its scenic vistas, the warning signs admittedly in place on that day, by their express terms, significantly limited the extent of that invitation.

The court also determined, as a matter of law, that the defendant maintained the park in a reasonably safe condition. This conclusion was supported by evidence that the state provided warning signs, provided “designated trails encompassing or leading to overlooks and viewing platforms from which park visitors could safely view the falls”, built a pedestrian footbridge, and policed the premises by, for example, ticketing hikers deemed to be in violation of park rules.  (At the time of her death, decedent was standing 400 feet beyond what was clearly indicated as being the limits of the safe area.)

Finally, the court rejected plaintiff’s argument based on the fact that “defendant admittedly was on notice that some park patrons … nonetheless would venture into the creek bed and hike to the base of the falls”, holding:

[T]he fact that a relatively small group of people would disregard posted warning signs and violate park rules does not demonstrate either the existence of a pervasive enforcement problem or that defendant’s efforts to curb such illegal conduct were deficient. Nor are we persuaded that proof of such violations is, under all of the attendant circumstances, sufficient to raise a question of fact as to either the adequacy of the warning signs provided or the reasonableness of defendant’s efforts to keep park visitors out of harm’s way.  Some determined hikers will follow a path of their own choosing to a desired destination regardless of the risk associated with that decision, the signs advising against it or the physical barriers impeding their progress. And while defendant indeed cannot turn a blind eye to the behavior of the park’s visitors, it also cannot be cast in the role of an insurer of their safety.