| Elwood v Alpha Sigma Phi, Iota Ch. of Alpha Sigma Phi Fraternity,Inc. |
| 2009 NY Slip Op 03659 [62 AD3d 1074] |
| May 7, 2009 |
| Appellate Division, Third Department |
| Patrick Elwood, Individually and as Administrator of the Estate ofScot Elwood, Deceased, et al., Respondents, v Alpha Sigma Phi, Iota Chapter of Alpha SigmaPhi Fraternity, Inc., et al., Appellants. |
—[*1] Littman & Babiarz, Ithaca (Peter N. Littman of counsel), for respondents.
Rose, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered April 3, 2008 inTompkins County, which partially denied defendants' motion for summary judgment dismissingthe complaint.
Plaintiffs commenced this wrongful death action after their son (hereinafter decedent), asophomore at Cornell University, fell to his death in a gorge near a fraternity house owned bydefendant Alpha Sigma Phi, Iota Chapter (hereinafter defendant) in the City of Ithaca, TompkinsCounty. Before he fell, decedent had been drinking heavily and, with his friend Ryan Bridge,attempted to find his way to a party at a different Cornell fraternity house. They drove by twosigns indicating that the street they were on was for local traffic only because the bridge over thenearby gorge was closed. Although they were neither members nor guests of defendant, theythen turned into defendant's private driveway, drove to its parking lot and parked illegally in afire lane. Decedent and Bridge got out of their vehicle and stood conferring in the parking lotdirectly in front of defendant's fraternity house. It was after 10:00 p.m. and there was no party orother event going on there. When Benjamin Dewitt, one of defendant's members, saw them and[*2]questioned their presence, they did not respond. Instead, theyturned and walked away out of sight down a sloping, unlit stone pathway that ran along the sideand to the rear of the house. After stepping inside the house to yell for assistance because hefeared the intruders were vandals, Dewitt followed them, heard a crash and then came uponBridge standing alone near the pathway. Defendant had previously installed a five-foot-highsplit-rail fence on its premises to separate the pathway from the nearby gorge. Although therewas no gate or gap in the fence and no pathway beyond it to the gorge, decedent had crossed tothe other side, proceeded in the dark about six feet through foliage that obscured the edge of thegorge and, tragically, fallen 80 feet to his death. When Dewitt arrived at Bridge's location, thefence was still intact. Later, decedent's blood alcohol content was found to be .26%.
In their complaint, plaintiffs allege that defendants were negligent in maintaining thepremises by, among other things, failing to adequately warn and guard against the danger ofpersons falling into the gorge. Following discovery, defendants moved for summary judgmentdismissing the complaint on the grounds that they owed no duty to decedent because the gorgewas an open and obvious natural hazard, decedent was a trespasser whose presence wasunforeseeable and decedent's intoxication was a superseding cause of his fall.[FN*]Supreme Court found a question of fact as to each ground and denied the motion as to defendant,prompting this appeal. While we agree that questions of fact preclude summary judgment on theother grounds of defendant's motion, we find no record evidence that it was foreseeable thatdecedent would trespass on defendant's private property, cross to the far side of its fence and fallinto the gorge.
A property owner's obligation to maintain its property in reasonably safe condition ismeasured by foreseeability (see Basso v Miller, 40 NY2d 233, 241 [1976]), and "noliability arises where the injured party's presence on the property is not reasonably foreseeable"(Bracci v Roberts, 217 AD2d 897, 897 [1995]; see Scurti v City of New York,40 NY2d 433, 442 [1976]; DeMarrais v Swift, 283 AD2d 540, 541 [2001];Baczkowski v Zurn, 235 AD2d 894, 895 [1997]). As relevant here, "the likelihood ofone entering without permission depends on the facts of the case including the location of theproperty in relation to populated areas, its accessibility and whether there have been any priorincidents of trespassing in the area where the injury occurred" (Scurti v City of NewYork, 40 NY2d at 442). While questions of what is foreseeable are generally for thefactfinder to resolve (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]), thecourts will resolve them as a matter of law where the relevant facts are undisputed and only oneinference may be drawn (see Hendricks v Lee's Family, 301 AD2d 1013, 1013-1014[2003]; Hessner v Laporte, 171 AD2d 999, 999-1000 [1991]).
Here, despite plaintiffs' claim to the contrary, the deposition testimonies of defendant'spresident, adviser and members do not include any admission that visitors, guests or nonmembercollege students were reasonably foreseeable users of the areas of its somewhat secludedpremises that are close to the gorge. In fact, those persons testified that the areas along the sideand rear of the house were only rarely used and then only by fraternity members who, of course,would be well aware of the location of the gorge. In addition, our review of the record disclosesno evidence that there ever had been guests, whether invited or uninvited, in these areas. Further,[*3]there is no evidence that anyone had ever trespassed on theseareas prior to decedent's accident, that there were any prior accidents caused by the proximity ofthese areas to the gorge or that defendant's fence had ever failed to prevent anyone frominadvertently reaching the edge of the gorge.
Inasmuch as plaintiffs have not shown that decedent's presence was anything other than asingular, unexpected and unusual event, defendant's duty of care did not extend to him (see Barry v Gorecki, 38 AD3d1213, 1215 [2007]; Hendricks v Lee's Family, 301 AD2d at 1013; McIntyre vBeaver Dam Winter Sports Club, 163 AD2d 277, 279 [1990]; Pizzola v State of NewYork, 130 AD2d 796, 797 [1987]; compare Mesick v State of New York, 118 AD2d214, 217 [1986], lv denied 68 NY2d 611 [1986]).
Peters, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is modified,on the law, with costs to defendants, by reversing so much thereof as partially denied defendants'motion; motion granted in its entirety, summary judgment awarded to defendant Alpha SigmaPhi, Iota Chapter and complaint dismissed against said defendant; and, as so modified, affirmed.
Footnote *: Plaintiffs did not oppose thedismissal of the complaint against defendant Alpha Sigma Phi Fraternity, Inc. As such themotion was granted dismissing the complaint against said defendant.