The Third Department determined questions of fact had been raised about foreseeability and negligence in an action based upon plaintiff’s diving into shallow water incurring a spinal injury.  The incident occurred in April on an unusually hot day:

The dynamic of this case is that the accident occurred on an unseasonably warm spring day, well before the swimming season would normally commence. With the lake levels reduced, plaintiff’s professed expectations of water depth were tragically proven unfounded. Compounding the problem, as explained by plaintiff’s wife, was the fact that the water was not clear enough to see the bottom. Despite plaintiff’s initial protests about going in the water, the fact remains it was extremely hot, the children had been swimming and plaintiff was wearing swim trunks. [Defendant] acknowledged that “[i]t wouldn’t have surprised [him] for them to get in the water.” Under these circumstances, whether it was foreseeable that plaintiff would dive into the water presents a question of fact for the trier of fact to resolve … . Whether defendants breached their duty of care by failing to inform plaintiff of the reduced water level also remains a question of fact .. . Correspondingly, a triable issue of fact remains as to whether plaintiff was actually aware of the depth of the water and dove in reckless disregard of his own safety. As such, his conduct cannot be characterized as a superseding cause as a matter of law … . Toyryla v Denis, 2014 NY Slip Op 05483, 3rd Dept 7-24-14

The Third Department determined questions of fact had been raised about whether plaintiff’s decedent was “hiking” within the meaning of the General Obligations Law when he fell into a gorge to his death on property owned by defendant Cornell University in Ithaca.  The court also determined there was a question of fact whether the dangerous condition was open and obvious:

Defendant maintains that it is shielded from liability by General Obligations Law § 9-103 (1) (a), which, as pertinent here, “grants a special immunity to owners . . . from the usual duty to keep places safe” when individuals use their property for specified recreational activities, including hiking … . The enumerated activities covered under the statute “are essentially self-explanatory” …. “Hiking” has been described as “traveling through the woods on foot” … and as “traversing land ‘by foot or snowshoe for the purpose of pleasure or exercise'” … . Comparatively, this Court recently determined that a person walking her dogs on a paved walkway was not engaged in “hiking” under the statute …. With one exception not applicable here, a person engaged in one of the enumerated activities is “presumed to be doing so for recreational purposes” without regard to his or her subjective intent ….

The critical determination is whether decedent’s activity constituted “hiking” under the statute. As described, he ran down the gorge trail and, in that literal sense, was “traveling through the woods on foot,” or “hiking,” as defined in Sega v State of New York … . The statute, however, speaks to specified recreational categories reflecting the intent of the Legislature “to allow or encourage more people to use more accessible land for recreational enjoyment” … . Viewing the facts in the light most favorable to plaintiffs, the nonmoving party, we agree with Supreme Court that, under the distinctive fact pattern presented, defendant did not establish, as a matter of law, that decedent was “hiking” within the embrace of General Obligations Law § 9-103 (1) (a) at the time of his death … .  * * *

…[A] question of fact remains as to whether the cliff’s edge was visible and obvious or presented a latent, dangerous condition necessitating an appropriate warning… . King v Cornell Univ, 2014 NY Slip Op 05393, 3rd Dept 7-17-14