BOUCHARD v. SMILEY BROTHERS INC (1999)

In an action to recover damages for wrongful death, the defendant Smiley Brothers, Inc., appeals from an order of the Supreme Court, Nassau County (McCaffrey, J.), dated January 2, 1998, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the defendant Smiley Brothers, Inc.

The plaintiff's decedent lost her footing while hiking on an advanced mountain trail at the Mohonk Mountain Preserve in New Paltz (hereinafter the MMP) and fell off a rock cliff which bordered the trail.   The trail on which the decedent was hiking was described in trail maps and on a outdoor trailboard as containing, inter alia, rock scrambles and primitive paths that “are often on the edge of cliffs” with no railings.   The decedent was an experienced hiker, having hiked at the MMP on at least 10 prior occasions.

 It is well settled that “[b]y engaging in a sporting event or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;  see, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 543 N.Y.S.2d 29, 541 N.E.2d 29;  Maddox v. City of New York, 66 N.Y.2d 270, 278, 496 N.Y.S.2d 726, 487 N.E.2d 553;  Bruno v. Hunter Mountain Ski Bowl, 248 A.D.2d 660, 670 N.Y.S.2d 325).

 Here, the record demonstrates that the decedent assumed the risks inherent in recreational hiking, including the risk of injury arising from the open and obvious physical features of the advanced trail where the accident took place.   Contrary to the plaintiff's contentions, the dangers posed by the proximity of the rock ledge were open and obvious and, therefore, the decedent assumed those risks which would be commonly associated with its presence, including the possibility of falling as she did (see, Morgan v. State of New York, supra, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).   Since the injury sustained arose from a risk inherent in the recreational activity at issue, and did not involve any sort of concealed or unreasonably enhanced danger (see, Morgan v. State of New York, supra, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202), the motion by the defendant Smiley Brothers, Inc., the owner and operator of the MMP, for summary judgment dismissing the complaint insofar as asserted against it is granted.

MEMORANDUM BY THE COURT.