Lawsuit Against Cornell Can Continue; Drunk Student Was Not “Hiking” When He Fell Off Cliff

An upstate trial court recently held, in King v. Cornell University, that defendant Cornell University was not entitled to summary judgment in a lawsuit brought by the parents of an intoxicated student (Khalil Jamal Godfrey King) who died after falling from a 200-foot tall cliff into the Fall Creek gorge on Cornell’s campus.

The (tragic) facts, according to the court:

[King’s friend] Carter had been communicating with King, who was at a party at the LUL fraternity, by text messages for most of the night of August 27 — 28. They met at the Psi U fraternity, where King may have smoked marihuana. Carter reports that King was visibly intoxicated. They left Psi U and walked to the SAE fraternity located on McGraw Place to visit friends. As they approached the SAE house, at approximately 3:30 a.m. — 3:40 a.m. on August 28, King made a motion to Carter indicating that he should back up and said in quiet voice, “run, run.” Carter does not know what prompted King to flee. Carter started running and King passed him as they both ran onto the Fall Creek Gorge trail behind the Fiji fraternity house, where Carter stopped running and called for King to stop running; however, King continued running west on the trail toward the Stewart Avenue bridge and passed from Carter’s sight. King did not answer calls Carter made to King’s cellphone a few minutes later, at 3:45 p.m. and 3:48 p.m. It is further undisputed that King’s body was located in the bottom of the Fall Creek gorge, near the location where he was last seen by Carter, on August 29, 2010; that he died instantly after landing on his head; and that he had a blood alcohol level of 0.167% at the time of his death.

Plaintiff claimed that defendant was negligent; defendant countered that plaintiff’s claims were barred by New York General Obligations Law § 9-103, which “grants immunity for ordinary negligence to landowners who permit members of the public to use their property for specified recreational activities without charge … including hiking.”

Section 9-103 provides, in pertinent part (with emphasis added):

[A]n owner, lessee or occupant of premises … owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning …, 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, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes[.] (Emphasis added.)

The court held that the decedent was not “hiking” when he fell, and therefore that GOL § 9-103 did not bar plaintiffs’ claim:

Although not specifically defined under the statute, hiking is defined in the Department of Environmental Conservation rules and regulations [6 NYCRR 197.2(a)] as traversing land by foot or snowshoe for the purposes of pleasure or exercise. Thus, walking is hiking for purposes of the statute only when done for pleasure or exercise. Inasmuch as it is undisputed on the present record that King was walking to a friend’s house when he decided to flee for some unknown reason, with no suggestion in the record that he was walking – or running – for either pleasure or exercise, it cannot be said, as a matter of law, that he was engaged in hiking when he fell into the gorge.  (Emphasis added by court.)

The court next rejected defendant’s argument that the gorge was “a natural geographical phenomenon presenting an open and obvious danger of which it neither had a duty to warn nor enclose”:

There is insufficient proof in the record to establish, as a matter of law, that the gorge in the area where King fell was open and obvious; in fact, there is no evidence whatsoever of the conditions which existed at the edge of the cliff where plaintiff fell.  While defendant submitted photographs of the trail, there are no photographs which depict the edge of the gorge, nor is there an affidavit from any person describing the area along the edge, or rim, of the gorge where King fell, specifically indicating whether it is an open and obvious condition or whether it is obscured by vegetation or other obstructions. [T]he photographs submitted by defendant show the presence of vegetation between the trail and the gorge that could make it difficult to see the edge of the cliff.

Defendant submitted evidence “to show that it discharged its duty to warn by providing warnings of the specific hazards encountered by King”. This evidence included warning signs and a “gorge safety brochure with detailed warnings” provided to King and his parents prior to his enrollment.

However, there was insufficient evidence to justify a conclusion, as a matter of law, that defendant maintained its premises in a reasonably safe condition:

[T]he photographs submitted by defendant show the presence of vegetation between the trail and the gorge that could make it difficult to see the edge of the cliff and a split-rail fence that may not have served as an adequate barrier to departures from the trail. Moreover, it is not possible to determine whether defendant maintained the premises in a reasonably safe condition without evidence of the conditions that existed at the edge of the cliff from which King fell, which is entirely lacking in the present record.

The court therefore denied defendant’s motion for summary judgment.

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