NY's General Obligations Law § 9-103: A Continued Thorn For Plaintiff's In Personal Injury Cases Against Landowners
In Ferland v. GMO Renewable Resources, LLC, the estate of Rene L. Ferland, Jr. filed suit against Fund 6 Domestic, LLC after the decedent died when his snowmobile struck the side of a tractor-trailer that was carrying a load of logs on a private logging road. This road was also used as a snowmobile trail on Fund 6’s property. Fund 6 moved for summary judgment on the grounds that General Obligations Law § 9-103 entitled it to immunity and that the consideration exception to this provision’s grant of immunity did not apply. General Obligations Law § 9-103(1) provides that “an owner…of premises…owes no duty to keep the premises safe for entry or use by others for…snowmobile operation…or to give warning of any hazardous condition…on such premises.” An exception to this exists under G.O.L. § 9-103(2)(b) when consideration is given in exchange for permission to pursue any of the activities enumerated in the section. The plaintiff contended that the consideration exception applied to this case because Fund 6 entered into recreation leases with various non-party fish and game clubs whereby Fund 6 accepted rent in consideration for the clubs to post the leased premises and use them for limited purposes. The key language in the lease agreements was the term “other recreational activities” and the plaintiff argued that this term contemplated snowmobiling, thereby allowing the action to proceed against Fund 6. The Appellate Division disagreed, finding that snowmobile clubs actually maintained the snowmobile trails through volunteer efforts of their members. Further, the court cited to the lease agreement between Fund 6 and the St. Lawrence County Snowmobiling Association that granted the Association permission to use the property for snowmobiling “without charge”. From reviewing the record, the court held that the evidence established that the snowmobile trails were open to the public without charge. Finally, the court gave no credibility to the plaintiff’s attempt to argue that the Association’s use agreement that required it to name Fund 6 as an additional insured on its trail insurance policy, acted as consideration sufficient to trigger the exception. G.O.L. § 9-103 encompasses fourteen different outdoor recreational activities. Whenever a suit is brought against a landowner who has permitted recreational use on its property, it is important to remember G.O.L. § 9-103 as a potential shield to liability – and a continued thorn – in plaintiffs’ personal injury cases against landowners. Special thanks to Michael Nunley for his contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com.
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