Were County/Park Commissioners Protected from Liability by Law?

Madelyn Langford and Peter D. Kaufman sued for their injuries sustained after a tree branch fell on them while on a trail in Kennedy Dells Park located in New City, New York. The Park is owned by the County of Rockland and operated by the County of Rockland Park Commission. The County and the Commission moved for summary judgment dismissing the complaint based on the arguments that movants: (1) were immune from liability of negligence pursuant to General Obligations Law § 9-103; (2) lacked actual or constructive notice as to the existence of a dangerous condition involving the tree; and (3) there was no evidence of proximate cause because the hikers’ injuries were caused by a naturally occurring condition, the danger of which was open and obvious and assumed by them.

In support of their motion, the County and the Commission alleged that they were entitled to immunity under GOL § 9-103 as a matter of law because the two elements for applicability were satisfied. Specifically, they alleged that the Langford/Kaufman engaged in a requisite recreational activity and that the Park was suitable for that activity, hiking. In opposition, Langford/Kaufman alleged that the motion for summary judgment could not be granted based on immunity because there were issues of material fact regarding whether the County assumed a duty to act reasonably in the operation and maintenance of a supervised public park and recreational facility. In reply, the County and the Commission alleged that the applicability of the statute was a question of law for the Court to determine and that whether the Park was supervised was irrelevant to the applicability of the statute.

Pursuant to GOL § 9-103, a landowner owes no duty to keep its premises safe for entry or use by others for certain enumerated recreational activities, including hiking. To establish entitlement to summary judgment based upon the statute, a defendant must establish ownership of the property, the plaintiff’s engagement in one of the recreational activities specified by the statute, and the suitability of the property for that recreational use.

The Court found that the County and the Commission made a prima facie showing of their entitlement to judgment as a matter of law by submitting evidentiary proof that the Langford/Kaufman were engaged in hiking, an activity identified in GOL § 9-103, and that the Park was suitable for hiking. But Langford/Kaufman raised a triable issue of fact as to the applicability of the statute. The Park had five hiking trails which were marked and named for the public to traverse. The County’s Park Operations Manager testified that the County checked the trails at the Park and performed any maintenance necessary as park rangers and park security walked through the trails looking for hazards. The Park’s staff was limited to approximately 10 employees with a minimal degree of maintenance and without any supervision of hiking, which supported a finding that the Park was indeed unsupervised by the County. Yet those contentions were belied by the fact that the park rangers and security checked trails on a monthly basis and after any large storm event, as testified by the Park Operations Manager. The County and the Commission had no specific protocol in maintenance, but trees were pruned through visual inspection and after big storms the County closed the Park and opened trails after it cleared fallen trees.

Based upon the foregoing, the Court found that issues of fact existed as to whether the County had undertaken the duty that the law imposes in the operation and maintenance of supervised park facilities. The branch of the County and the Commission’s motion for summary judgment was denied.

The Court next addressed whether the County and the Commission had any notice, actual or constructive, as to any defect of the tree. They alleged that they had no such notice as to any dangerous condition of the tree that fell, and submitted the Park Operations Manager’s affidavit stating that the County’s business records showed no concerns or need for follow-up regarding the tree from the routine maintenance patrols and that it received no notice of a dangerous condition by other means. Additionally, they provided an affidavit from its arborist-expert witness who inspected the tree and concluded that there was a previous small crack in the limb that fell on Langford/Kaufman and had no outward visual signs. In his opinion, “[t]his crack allowed oxygen and water to enter the limb allowing fungal fruiting bodies to grow, but there were no signs of decay or rot in the limb.” Therefore, there were no visible signs that the tree and limb were structurally unsound, dead, or decayed.

In opposition, Langford/Kaufman provided an affidavit from their own arborist-expert witness who opined that the tree was structurally unsound as there was clear indicia of a “target limb.” He stated that “[a]ny reasonable inspection of the canopy at the accident location, would have revealed a NOTICABLE mammoth over hanging and over extending limb which should have been red flagged as a limb ‘reduction or removal’ to an arborist.”

In cases involving falling trees or branches, liability may be imposed if there was actual or constructive notice of the alleged dangerous or defective condition of the tree. Constructive notice may be imputed if the record established that a reasonable inspection would have revealed the alleged dangerous or defective condition of the tree. But a municipality does not have constructive notice simply because a tree is leaning.

Langford/Kaufman’s expert conceded that the limb that fell had no outward visible indicia of decay or disease, as concluded by the County and the Commission’s arborist-expert, and attributed the fall of the limb to its size and extension, rendering it structurally unsound. To an arborist, it should have been a red flag to reduce and remove the limb.

The Court noted that the submissions did not indicate that the Park’s personnel included an arborist who checked the trails. Based upon the foregoing, the Court found that the County and the Commission met their prima facie burden showing that they lacked actual or constructive notice as to a dangerous condition of the tree, and the hikers failed to establish any triable issues of material fact.

The County and the Commission’s motion for summary judgment dismissing Langdford/Kaufman’s complaint was granted. Given that they lacked notice, the Court did not address the issue of proximate cause.