Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/12/Weirich-v-Finger-Lakes-Land-Trust.pdf">Weirich v Finger Lakes Land Trust</a>, </em>Plaintiff brought suit against the Defendant after suffering injury after falling down a steep slope in a nature preserve. Defendant, a nonprofit organization, is responsible for the conservation of Carpenter Falls through a stewardship agreement with the State Department of Environmental Conservation. The Stewardship Agreement provides the scope of activities in which Defendant is required and permitted to perform, including: “routine maintenance and rehabilitation activities on the kiosk, parking area, and trail segments.”</p>
<p style="text-align: justify;">Plaintiff approached steep and slippery rocky terrain with no handrails and plaintiff slipped and “fell off” the cliff, and he was injured. Plaintiff filed this current action claiming the accident occurred as a result of Defendant's negligence under the theory of premises liability.</p>
<p style="text-align: justify;">As part of their duties, Defendant was required to maintain the kiosk area located at the entry point of the trail but was restricted to only post signage approved by the DEC. At the time of the accident, there were three “warning signs” at the kiosk area.</p>
<p style="text-align: justify;">Defendant filed a motion for summary judgment arguing that they do not possess control over this land and therefore do not owe a duty and plaintiff assumed the risk by walking off the demarcated path.</p>
<p style="text-align: justify;">The lower Court, as a threshold question, determined that there was no duty of care. In the case at hand, while the Court recognizes that Defendant contracted to inspect and maintain Carpenter Falls, and Plaintiff was within the zone of intended safety services, the Court ruled that Defendants did not have <em>exclusive control</em> of the land and that this specific injury was not foreseeable Defendant were only responsible for maintaining and removing trees and brush on the trails. The DEC expressly maintained a certain level of control within the stewardship agreement and thus the Defendant was not liable for the area where plaintiff fell.</p>
<p style="text-align: justify;">The lower Court also ruled that the plaintiff assumed the risk by engaging in the activity of trail hiking and therefore must assume the risk inherent in recreational hiking, including obvious features of the trail, as any trail in close proximity to a cliff or rock ledge, there is an inherent danger of falling. Plaintiff was hiking and climbing rocky terrain close to a cliff's edge and there was testimony that the change in slope elevation was sudden and without warning. However, rather than turning around, he continued. Further, the Court finds that the three signs placed at the kiosk adequately warned Plaintiffs of the inherent dangers. Therefore, the Court finds that with hiking (or even walking with sightseeing at a waterfalls) there comes inherent danger with slippery terrain, cliffs, and rocks, there comes the inherent risk of falling.</p>
<p style="text-align: justify;">Thanks to Paul Vitale for his contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.</p>