Has the Legislative Intent Behind Labor Law s. 240(1) Been Contravened by Recent Case Law?

This Garbage Dump Looks Like As Good a Place as Any

In Giugliano v. County of Nassau, 2005 N.Y. Slip Op. 09493, an infant plaintiff was injured while snow boarding on a snow covered pile of garbage located near his aunt's house.  The injury occurred when he ran into a piece of garbage which cause him to fall and break his arm. 

The Second Department, held that the defendant was entitled to summary judgment dismissing the complaint due to the doctrine of primary assumption of the the risk, since the infant plaintiff admitted during his deposition that he was well aware of the presence of garbage at that location.

My first thought was to wonder why this kid was snow boarding on a pile of garbage.  I can think of far more palatable places to engage in cold weather pursuits.  But to each their own, I suppose.

I then moved on to consideration of the legal issues.  While I don't disagree with the Court's holding, I wondered why the defendant didn't seek to invoke the statutory grant of immunity available pursuant to General Obligations Law s. 9-103.  The statute provides, in part, that as long as no fee is charged, the landowner owes no duty to keep the premises safe for entry or use by recreational users pursuing listed activities, and that the landowner has no obligation to warn said users of any hazardous condition, use of property, structure, or activity on the property.  The statute was enacted to encourage landowners to open their lands to recreational users by providing statutory immunity from lawsuits resulting from injuries sustained as a result of the enumerated recreational use.

I reviewed the statute and found that the enumerated activities set forth therein are:

hunting, fishing, organized gleaning as defined in section seventy-one-y   of the agriculture and markets law, canoeing, boating, trapping, hiking,   cross-country skiing, tobogganing, sledding,  speleological  activities,   horseback  riding,  bicycle  riding,  hang  gliding,  motorized  vehicle   operation for recreational purposes, snowmobile  operation,  cutting  or   gathering of wood for non-commercial purposes or training of dogs.

I was surprised to see that downhill skiing and snow boarding are not listed activities. That would explain the defendant's failure to invoke the statutory immunity, since it appears to be inapplicable to the activity at hand. 

In my opinion those activities should be included in the statute.  It makes no sense to provide protection to landowners for injuries sustained while sledding, tobogganing or cross-country skiing, while excluding protection for injuries sustained while down hill skiing  or snow boarding.  I don't see a distinction between the activities and it appears that the landowner is being penalized, in a sense, simply because an uninvited recreational user chose to engage in an activity that is not included in the statute.


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Good point. I can't imagine a decision was made to deliberately exclude those activities when tobaggoning (sp?) and sledding are included. That statute needs a re-write along the lines of "recreational activities such as ...."


Maybe they wanted to leave open the issue of people skiing/boarding at Ski Resorts without paying for lift tickets. For instance, in my state - a winterwonderland - backcountry skiers and boarders hike up the back sides of ski mountains, ski/board the back country, then ski down into the resort and hitch hike back to their cars. I've already seen it hundreds of times this season.

So, how do you treat someone who "sneaks" onto a resort then falls victim to the resort's negligence?


Also, the ski industry lobby may have influenced that list ...


You've got to love the detail about the garbage dump. Shows the opinion writer (and our blogger) are awake!


Sorry if I am speaking too much, let me know. Is there any rule of statutory construction that the defendant could have used to argue that the list of enumerated activities was descriptive, not exclusive?

Nicole Black

Wdegraw: The statute excludes landowners who actively open their property to certain outdoor activities, including those who charge a fee, so ski resorts would not be entitled to its protections. And, although I haven't looked it up, I presume that those who enter a resort without paying and are subsequently injured would have to seek redress pursuant to ordinary negligence claims against the resort.

Slickdpdx: The statute is interpreted quite narrowly by case law, so I'm not sure if that argument would work, but it's a good thought.

And, any and all (constructive) comments are always welcome.

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