Opinion
147 CA 22-00809
04-28-2023
Michael DAVIS, Plaintiff-Respondent, v. R. Foster HINDS and Nancy Hinds, Defendants-Appellants.
ERNEST D. SANTORO, ESQ., P.C., ROCHESTER (MARK T. WHITFORD, JR., OF COUNSEL), FOR DEFENDANTS-APPELLANTS. PULOS AND ROSELL, LLP, HORNELL (TIMOTHY J. ROSELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
ERNEST D. SANTORO, ESQ., P.C., ROCHESTER (MARK T. WHITFORD, JR., OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
PULOS AND ROSELL, LLP, HORNELL (TIMOTHY J. ROSELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part against defendant Nancy Hinds and dismissing the complaint against that defendant, and as modified the judgment is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that he sustained when he fell from a tree stand on property owned by defendants. Just prior to the accident, plaintiff and R. Foster Hinds (defendant) installed the tree stand. Defendant supplied the tree stand platform, a ladder, and a ratchet strap that was used to secure the stand to the tree. Defendant had purchased the ratchet strap in a set of three and was aware that one of the straps in that set had previously broken when he tested it. After the tree stand was installed, plaintiff stepped onto the platform to test it and the ratchet strap broke, causing plaintiff to fall. Following a bench trial, Supreme Court determined, inter alia, that defendants were liable for negligence and awarded plaintiff money damages. Defendants appeal.
Contrary to defendants’ contention, we conclude that they are not immune from liability pursuant to General Obligations Law § 9-103. That provision, also known as the "recreational use statute," grants landowners immunity from liability for ordinary negligence when a person is injured while engaged in certain enumerated recreational activities (see Bragg v. Genesee County Agric. Socy. , 84 N.Y.2d 544, 546-547, 620 N.Y.S.2d 322, 644 N.E.2d 1013 [1994] ). The statute provides, as relevant here, that a landowner has "no duty to keep the premises safe ... or to give warning of any hazardous condition ... to persons entering for [the enumerated recreational] purposes" ( General Obligations Law § 9-103 [1] [a] ). However, if a defendant's alleged liability is not premised on any condition on the land but rather is based on the defendant's "affirmative acts of negligence," General Obligations Law § 9-103 is not applicable ( Sabia v. Niagara Mohawk Power Corp. , 87 A.D.3d 1291, 1293, 930 N.Y.S.2d 160 [4th Dept. 2011] ; see Hulett v. Niagara Mohawk Power Corp. , 1 A.D.3d 999, 1001-1002, 768 N.Y.S.2d 535 [4th Dept. 2003] ; Del Costello v. Delaware & Hudson Ry. Co. , 274 A.D.2d 19, 21-24, 711 N.Y.S.2d 77 [3d Dept. 2000] ; Sauberan v. Ohl , 239 A.D.2d 891, 891, 659 N.Y.S.2d 658 [4th Dept. 1997] ; Lee v. Long Is. R.R. , 204 A.D.2d 280, 281-282, 611 N.Y.S.2d 296 [2d Dept. 1994] ). Here, defendants’ liability was not premised on any condition on the land, but rather was based on defendant's alleged affirmative negligence in providing plaintiff with the faulty strap for the installation of the tree stand.
We reject defendants’ further contention that the court's determination that defendant was affirmatively negligent is against the weight of the evidence. "It is well settled ... that the decision of a court following a nonjury trial should not be disturbed on appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence" ( Burke v. Women Gynecology & Childbirth Assoc., P.C. , 195 A.D.3d 1393, 1394, 150 N.Y.S.3d 420 [4th Dept. 2021] [internal quotation marks omitted]; see generally Thoreson v. Penthouse Intl. , 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992], rearg denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298 [1993] ). Based on our review of the record, we conclude that the trial testimony that defendant bought the ratchet strap in a package of three, that another strap in that set had previously broken, and that, despite that knowledge, defendant provided the strap to use in the installation of the tree stand supports the court's determination. We reject defendants’ contention that plaintiff's own conduct constituted an intervening, superseding cause that broke the chain of causation (see generally Hain v. Jamison , 28 N.Y.3d 524, 529-532, 46 N.Y.S.3d 502, 68 N.E.3d 1233 [2016] ). We agree, however, with defendants that the court's determination that defendant Nancy Hinds was negligent could not be reached under any fair interpretation of the evidence (see generally Thoreson , 80 N.Y.2d at 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 ; Tarsel v. Trombino , 196 A.D.3d 1100, 1101, 151 N.Y.S.3d 755 [4th Dept. 2021] ). We therefore modify the judgment accordingly. We have considered defendants’ remaining contentions and conclude that none warrants further modification or reversal of the judgment.