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Guest v. Hansen

Limiting Duty to Maintain Safe Premises to Own Property-Galindo and its Exception

The District Court’s adverse decision was largely driven by the difficulty in attaching duty when hazards involved are not located on the negligent party’s property.  Upon reading the Distinct Court decision and realizing the importance of the fact in the District Court’s view and how this one bad fact overrode all the evidence of failings by the College that was evidenced in the record, I realized that to move forward, an exemption to the limitation of safe premised duty to one’s property border needed to be found.  Surprisingly, such an exception was in a case cited in the District Court’s decision.  

In its footnote 14, The District Court cited Galindo v. Town of Clarkstown, 2 N.Y. 3d 633, 636 (N.Y. 2004) and included the quote that “an owner owes no duty to warn or to protect others from a defective or dangerous condition on neighboring premises, unless the owner had created or contributed to it.” (emphasis added)  This exception to limiting duty to a property owner’s border seems to fit the facts at Paul Smith’s College.  Further research in the area, resulted in the location of several pre-2004 cases that can be termed the icy sidewalk cases.

These cases involve property owners who were aware of water flowing from their properties to an adjoining municipal sidewalk. Injuries resulted from the ice that formed from the icy flow.  This is a fluent example applying the rationale of the Galindo exception which recognized that a danger on a neighboring property can be created or contributed to by the adjoining property owner.  Numerous pre-Galindo decisions applied this concept including (Herbert v Rodriquez, 191 AD2d 887, 595 N.Y.S.2d 129, Brady v Maloney, 161 AD2d 879, 555 N.Y.S.2d 925, and Forelli v Rugino, 139 AD2d 489, 526 N.Y.S.2d 847.  Therefore, the goal in an appeal would need to have the Appeals Court consider all the circumstances at Paul Smith’s College prior to the fatal crash which when evaluated would cause the Court to conclude that the hazards that were present on the Lake followed freely from campus grounds to the bonfire party, similar to the icy water flowing to the neighboring properties in these sidewalk cases.

The presentation to the Court focused on the boldness of the students in building a bonfire only 200 yards from a prominent site on campus overlooking the adjoining lake. The bonfire was visible from many buildings and dormitories on campus and the noise and snowmobiles could be heard throughout the campus grounds.  Lakeside Dorm was where Director of Residence Life Tony Marra stayed that weekend while on duty.  Lakeside Dorm directly beside the area of the lake where the bonfire was located, surely visible from its lakeside windows (see campus maps).   

 Facts presented to the Court in support of the contention that the College created or contributed to the dangers witnessed around the bonfire are:

  • Although the State of New York owns the Lake, as they do all the Adirondack lakes, Paul Smith’s College treated the lake in its advertisements and activities as an integral part of their campus experience, including maintaining a structure called a lean-too at various points around the lake.  One only has to visit the Paul Smith’s website to see how prominent the lake is to the overall college experience that the College wishes to promote.
  • The dysfunctional safety and security staff, made so largely by the Safety Officer’s need to defer to Director of Residence Life Toni Marra who often overrode their decisions and judgments to the extent the Safety Officers felt undermined. This was displayed multiple times that fatal weekend. An uncertain chain of authority limited the Safety Officers from taking action when they believed safety was at risk.

·         The frequency of alcohol violations with little indication of effectively strong response by the College, including in designated wellness dormitories.  Confiscation seemed to be the major sanction for violations.

·         Given the students’ perception that the safety officers lacked authority, the students repeatedly demonstrated disrespect towards those officers.

·         Recognizing the lax enforcement of the College’s alcohol polices, District Court Judge Sharpe noted the apparent lassie fair enforcement related to campus drinking in footnote 8 within his decision.

·         The College’s lack of jurisdiction on the Lake was recognized by the Safety Officers, State Police and students.  Given the lax enforcement of alcohol policies on campus, the students knew that they could gather on the Lake with the likelihood that even confiscation was not likely.  Therefore, the students were sufficiently emboldened to build the bonfire in view of many parts of campus, only two hundred yards from a prominent point on campus, an area where spring graduation ceremonies are held.  Although the College lacked jurisdiction, all they needed to do when they witnessed the dangerous activities was to call the State Police. This worked the night before.

·         Numerous student statements point to the interrelationship between the activities on campus and the bonfire party.  Many students testified that how they first attended gatherings on campus where alcohol was present prior to venturing to the bonfire.  Additionally, the students repeatedly went back from the bonfire to campus for warmth on the frigid night.  Without this quick access to and from campus, the large numbers present throughout the night would not have been possible, including Joshua’s group repeated trips including their final return at 4:30 a.m. for the fatal ride.

·         A student testified that the source of the wood for the bonfire was the campus Forestry Cabin.  Without the wood from the campus forestry cabin, there would be no other practical fuel source for a bonfire of any size or duration, as anyone who has attempted to accumulate wood in a frozen, snowy environment can attest.  Therefore, the College could have easily closed off the source of the wood for bonfire parties if it so desired.  Student testimony indicated that similar bonfire parties were held the previous weekends and in prior semesters.

·         The bonfire’s proximity to campus allowed everyone on campus to be aware of the activities since the bonfire activities were visible and audible from many parts of campus.  Also, Toni Marra’s dormitory (Lakeside Dormitory) faced the location of the bonfire and was approximately the same distance as Clinton Dorm where Joshua resided.

·         Unlike most other neighboring property in other situations which likely has the benefit of period police patrol, the College was the only authority who could possibly take appropriate action given the remote location.  The College and State Police knew this, and tragically so did the students.

·         In addition to the drunken truck driver confronted the previous evening, the following demonstrates the College’s disregard for the dangers of driving under the influence:  1) the likelihood that alcohol was a factor in the snowmobile accident on Saturday night which brought Marra and Safety Officer JS to the bonfire party, 2) the reckless snowmobile driving Safety Officer JS testified witnessed around the bonfire, and 3) Ms. Marra’s reaction to the death of a Paul Smith’s student the previous weekend in her testimony during deposition which displayed an apparent lack of concern.  What Marra and the Safety Officers witnessed on Friday and Saturday nights were potential criminal felonies.  If the intoxicated snowmobile driver had survived, the State Police report indicates that he would have been charged with negligent homicide, similar to an intoxicated driver of an automobile who caused a death.

·         In reaction to viewing the events around the bonfire, Safety Officer JS expressed that the situation was extremely dangerous and pressed Ms. Marra to contact the State Police both while advancing to the bonfire location and upon leaving, however, was overruled by Ms. Marra.  That Mrs. Marra recognized that the situation was out of control is evident in her statement to Safety Officer JS that she opted to not intervene since to do so would likely cause a riot based on her stated assumption that students were drinking.

·         This all lead to the students feeling comfortable in spending the Saturday afternoon  using wood from the Campus Forestry Cabin to set up a bonfire close to and within full view of campus which allowed the students to continue the party throughout the night.  Their comfort that the party could continue without intervention was strengthened when Mrs. Marra and Safety Officer JS was present and did not act to limit the activities.  This comfort that the reckless activities around the bonfire could continue unabated throughout the night was clearly furthered and made possible (effectively created or contributed to) by the College.

Although each one of these facts individually would not likely justify holding at the College fell under the “created or contributed to” criteria, most whould consider that the combination of these factors would.  However, the Court uses a very narrow reading of a single case which was decided since the 2004 Galindo decision.

The case cited was Haymon v. Pettit, 9 N.Y.3d 324, 328-29 and from this the Circuit Court concluded thatthis theory of liability is quite narrow and does not appear to apply to activities that are dangerous independent of the landowner’s actions.”  Two problems exist with relying solely on this decision and this impression of the New York Court’s likely view.   The first there are important distinctions between Haymon and this case which makes relying on this single factor questionable.   Second, the Haymon decision cites a case which seems to counter the Court’s rationale.

The major factors viewed important in Haymon which distinguishes it from the situation at Paul Smith’s College are:

·         First, in Haymon the injured was described as “non-patron, third persons.”  In this case the participants at risk around the bonfire were those who Ms. Marra was hired to oversee.   Nothing in the record indicated that Marra and JS thought those around the bonfire were other than students.

·         Second, unlike Haymon where the court could not “imagine” steps available to fulfill any duty, all the College had to do was call the State Police.  It worked the night before with respect to the bonfire party seen from campus by Marra and the Officer Safety Officers.  Then, the State Police was called and which caused the bonfire extinguished and the students dispersed once the State Police arrived on campus. 

·         Third, illegal activities (driving under the influence and underage drinking) were witnessed around the bonfire.  Those illegal activities were known to be prevalent on the campus from which it flowed.

·     Finally, the Panel placed great weight on Haymon’s reference to risks that existed independent of the defendant’s acts.  Granted the risk of an alcohol associated snowmobile crash exists independent from the activities around the bonfire, but the same applies to an icy sidewalk and virtually any identifiable risk.  The question is whether the acts of the property owner materially contributed to magnifying such risk on neighboring property.  Without the demonstrated indifference by the College, the proximity and extent of activity around any bonfire party would be much less; therefore the risk of a tragic outcome would be greatly reduced. 

To solidify this last point, contrast the events that fatal weekend at Paul Smith’s College and the adjoining lake with what would have occurred at a campus which vigorously enforced policies for student conduct.   First, there would be no open party in such close proximity, audible and visible to many points on campus, to act as a magnet to attract participants who were not otherwise aware of the event.  Granted, with tightened enforcement, students may opt to select a more distant location for the party which was outside the view of campus security.   While this may likely occur, the event’s attraction would be diminished and the attendees limited to those diehards actively seeking such parties.  Also, the ready source of wood from a campus facility is absent.  The attendance, duration, and overall dangers would surely decline as well the distance being a disincentive, especially for those students not actively seeking such an outlet.  

Therefore, if the College practiced the appropriate diligence on campus such that students were concerned about possible sanctions for violations, that bonfire party would not have been anywhere near as accessible, well attended and as long in duration.  Furthermore, the bonfire party was surely extended once “Marra and JS did not undertake to stop the party; in fact, they adopted a hands-off approach, implying their acquiescence in the continuation of a dangerous activity that was underway.”

 While the Court states that students around the bonfire were no worse off as result of the visit by Marra and JS, this is not the case.  After their appearance, the students could assume that the party and reckless snowmobile riding could continue indefinitely, as it did to a tragic end.  Without the focus and warmth of the bonfire, there would be no focal point for snowmobile riding in the early morning, and four young women would not likely stand around in the cold waiting for a ride, especially one who was shown to be reluctant to ride at all.

One only needs to consider the relative caution that Kristine exhibited that night.   Despite being among scores of heavily drinking students, post-mortem testing showed Kristine had minimal alcohol in her system, substantiating very limited use.[1]  Although her traveling companions rode snowmobiles earlier in the evening, the fatal ride was her first ride and occurred only after she saw the others return from safe rides.   If she was at all anxious to ride, she would have been one of the first to ride at 4:30 a.m. not the last.  However, after witnessing seemingly safe rides and experiencing probable peer pressure, Kristine unfortunately overrode her better judgment, with fatal consequences.  One can only conclude that if Kristine saw signs that the College disapproved of the activities or if the access to rides was much more remote on the lake, she would never have been placed in that position to have to make a choice.

 The case cited in Haymon which conflicts with the Circuit Court’s decision is Griffin v 19-20 Industry City Assoc., LLC (37 AD3d 412 [2d Dept 2007).  The Griffin decision undermines the Circuit Court’s limited reading of Haymon that this theory of liability is quite narrow and does not appear to apply to activities that are dangerous independent of the landowner’s actions.” 

This post-Galindo icy sidewalk decision held no duty for the property owner, not that the icy flow was independent from the landowner’s actions, but there was no duty since the landowner was not aware of the dangerous flow.   Therefore, knowledge and inaction would have been sufficient to create duty under the Galindo exception in Griffin.  Overt action by the property owner in physically creating the danger would not be necessary.  Like an icy flow from a neighboring property, an act of a property owner can well be inaction with respect to a dangerous condition on their property which flows to a neighboring property, as surely occurred with the cited dangerous activities on the Paul Smith’s campus which flowed to the lake.

 More information on the case can is available through the following links.

Links to Documents in the Court Record Links to Commentary

 


 

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In loving Memory of Kristine Guest