Albright v. Metz

defendants would be immune from liability for ordinary negligence as provided by General Obligations Law § 9-103. We conclude that the land was suitable for motorbiking and affirm the order of the Appellate Division.

In 1976, defendant Harlen W. Metz, Jr., purchased over four acres of property adjacent to Spawn Hollow Road in Bethlehem, New York. It is undisputed that Metz utilized the property exclusively as a gravel mine prior to 1988. The mining activity during this period resulted in the creation of earthen slopes above the pit which ran along the perimeter of the property. A similar earthen path, or berm, had previously existed on the northern boundary of the property.

In April of 1988, Metz was issued a permit by the New York State Department of Environmental Conservation (DEC) to use the property as a gravel mine and as a "solid waste management facility,” or landfill, in accordance with 6 NYCRR part 360. Although active mining or excavation of the property was discontinued in approximately 1989 or 1990, gravel from the property was stockpiled and later used to cover the landfill material. .

In April of 1991, the plaintiffs son rode his motorized dirt bike up the road from his home and entered the northwest corner of the Metz landfill as he had done many times before, including the previous day, without incident. As he reached the top of the path that ran up the earthen berm, his bike suddenly plunged into thin air before plummeting almost 35 feet into the bed of the landfill.

Plaintiff filed this personal injury action against defendants Metz and H.W. Metz General Contracting, Inc. Metz and Metz Contracting subsequently moved for summary judgment dismissing plaintiffs complaint based upon General Obligations Law § 9-103.^[1] By cross motion, plaintiff sought to dismiss defendants’ affirmative defense premised on General Obligations Law § 9-103. In opposition to defendants’ motion, plaintiff

As stated in the permit issued to Metz by the DEC, the "[s]ite shall be secured against entry when owner or operator are not present.” Fencing of the site was not required however. Although a "site” is defined under the regulations as "the geographically contiguous property of a solid waste management facility and includes the land area of that facility and its access roads, appurtenances and land buffer areas” (6 NYCRR 360-1.2 [b] [154]), the DEC regulations regarding public access to areas around landfills have little to do with restricting recreational use.^[2]

The purpose of 6 NYCRR part 360 "is to regulate solid waste management facilities” (see, 6 NYCRR 360-1.1 [a]). The "Operational requirements for all solid waste management facilities,” as set forth at 6 NYCRR 360-1.14, provide that "[p]ublic access to facilities and receipt, of solid waste may occur only when an attendant is on duty” (6 NYCRR 360-1.14 [c]). Access to and use of the facilities may be controlled by "natural barriers or other suitable means” (6 NYCRR 360-1.14 [d]). The regulations further require a facility owner or operator to establish a "control program” to "assure that only solid waste authorized by the department to be treated, disposed of or transferred at the facility is being treated, disposed of or transferred at that facility” (6 NYCRR 360-1.14 [e] [1]).

These access regulations are clearly targeted at unauthorized dumping in the facility rather than banning potential public recreational use of natural barriers, access roads or land buffer areas which are distinct and apart from the landfill itself. We further note that even the guidelines governing the regulation of hazardous waste management facilities refer to the prevention of unknowing and/or unauthorized entry into "the active portion” of the facility (6 NYCRR 373-2.2 [f] [1]) defined as "that portion of a facility where treatment, storage or disposal operations are being or have been conducted” (6 NYCRR 370.2 [b] [5]). Of course, the Metz landfill does not fall into the latter "hazardous” category since it was only authorized to accept bricks, concrete, soil, rocks, lumber, trees, brush and stumps.

To the extent plaintiff argues that the land’s suitability must be judged by its "general characteristics” and that the general characteristic of the property at issue is landfill,

plaintiff ignores the fact that portions of Metz’s land were not used as landfill and it was in these other areas that plaintiff’s son injured himself while motorbiking.^[3] Moreover, while the parties dispute whether the property had been altered during a 24-hour period to create a cliff where none had existed, such a change would not vary the result here. It is the general suitability of the property that governs. In Bragg we stated:

"The statute removes any obligation on the landowner 'to keep the premises safe * * * [and] to give warning of any hazardous condition * * * to persons entering for [recreational] purposes’ (General Obligations Law § 9-103 [1] [a]). If this language is to have any force, suitability must be judged by viewing the property as it generally exists, not portions of it at some given time. Any other test, which requires the owner to inspect the land, to correct temporary conditions or locate and warn of isolated hazards as they exist on a specific day, would vitiate the statute by reimposing on the owner the common-law duty of care to inspect and correct hazards on the land” (Bragg, supra, 84 NY2d, at 552).

When interpreting statutory language, " 'the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle’ ” (Ferres v City of New Rochelle, 68 NY2d 446 , 451 [emphasis in original, quoting People v Ryan, 274 NY 149 , 152]). As this Court explained:

''The premise underlying section 9-103 is simple enough: outdoor recreation is good; New Yorkers need suitable places to engage in outdoor recreation; more places will be made available if property owners do not have to worry about liability when recreationists come onto their land” (Bragg, supra, 84 NY2d, at 550; see also, Ferres v City of New Rochelle, 68 NY2d 446 , 451, supra).

Here, plaintiff’s son was injured while motorbiking on an

earthen berm above the Metz landfill pit. Applying General Obligations Law § 9-103 to the facts of this case is consistent with the legislative purposes underlying that statute and the regulations of the DEC.^[4]

Plaintiffs remaining contention is that the statute does not protect Metz Contracting from negligence claims arising from its maintenance of the property. The statute reaches "owner[s], lessor[s] or occupant[s]” (General Obligations Law § 9-103 [1]). Thus, three different levels of property interests may be protected against common-law negligence claims arising from injuries to recreationists on real property when the statute applies. Nevertheless, the statute does not protect those who may not be classified as owners, lessors or occupants.

Metz Contracting submitted uncontested proof that it did not own the property and neither party has argued that the company was a lessor. Thus, General Obligations Law § 9-103 is only properly applied to Metz Contracting if it can be deemed an "occupant” under the statute. Plaintiff contends that Metz Contracting is not an occupant since it did not control access to the land or hold the right to exclude people from the property.

Metz’s DEC permit required him to establish procedures to control dumping, disposal and mining in the facility. There is no argument that Metz Contracting, owned and controlled by Metz, functioned as his work crew and agent in managing the property in accordance with the DEC regulations. Thus, Metz Contracting’s authorized presence on the premises was sufficient to bring it within the meaning of occupant in the statute. The record here fully supports the Appellate Division’s determination that General Obligations Law § 9-103 encompasses Metz Contracting.

The order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order affirmed, with costs.