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TO: Professor C
FROM: Witt
DATE: November 26, 2014
RE: Marc Scout/The Green Club – New York Recreational Use
I. Questions presented
I. For the purposes of New York’s recreational use statute granting owners immunity
from liability, is a person using property for one of the enumerated activities, specifically hiking,
if the person enjoyed walking on a path through the woods to a swimming hole and was injured
while walking away from the swimming hole to his knapsack off trail?
II. For the purposes of New York’s recreational use statute granting owners immunity,
was consideration for permission to pursue an enumerated recreational activity given when a
person paid a membership fee for “unlimited use of the facilities” of a country club and went
hiking and swimming in a naturally wooded area owned by the club?
II. Brief Answers
I. Likely yes. Common law provides that hiking is traversing land by foot for the purpose
of pleasure or exercise and is determined by a factors test which considers all of the facts and
circumstances of a person’s activity. The injury must also be incidental to hiking for the statute
to apply. Our client enjoyed about a half mile walk on a path through the woods and tripped over
a log while walking away from a swimming hole to get his knapsack for his return walk. The
enjoyment of traversing the path on foot along with these factors will likely transform his actions
into hiking.
II. Likely not. Common law provides that consideration for permission to pursue a
recreational activity exists when there is a sufficient nexus between the thing paid for and the
activity. Here, the plaintiff paid a membership fee to use the club’s facilities but was injured on

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wooded land owned by the club and used by others who had not paid any fees. The club’s
ownership of the wooded area is likely not a sufficient nexus between the fee paid for facilities
and the use of the wooded area.
III. Facts
Our client, Marc Scout, has asked whether he can bring a negligence action against The
Green Club for failing to remove a tree limb from its property. He is seeking damages for pain
and suffering as well as medical expenses. There is a concern that the club may be immune
under New York’s recreational use statute.
The Green Club owns a 150 acre parcel of land consisting of, among other structures,
swimming pools and tennis courts. The rest of the land is comprised of natural wooded areas.
Marc paid a $10,000 fee to become a member of the club in April 2014. The brochure provided
to new members stated that the fee was for “unlimited use of the facilities” and included a map
of the property. It is unknown whether the map included trails or otherwise identified the wooded
areas as facilities. On August 16th
, after a tennis lesson, Marc’s instructor told him about a path
and natural swimming hole that the staff used a couple of times a week over the summer. Marc
preferred swimming holes to pools, so he went to his car to get his knapsack and swimming
trunks and then changed into his walking shoes. He located an old dirt road 200 yards behind the
tennis courts. The road was grown over with grass but made a clearing through the trees. Marc
said he enjoyed listening to the running water of a stream as he traveled through the woods. After
traveling for one-half to three-quarters of a mile, he spotted the swimming hole, ducked behind a
large tree and changed to go swimming. After a 15 minute swim, Marc was walking back to the
tree where he left his knapsack when he tripped over a large limb and was injured.

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IV. Discussion
The Green Club would likely be immune under New York’s recreational use statute if
Marc brought a negligence action. Marc was likely hiking in the wooded area owned by The
Green Club, which he probably did not pay to use. In addition, the land was suitable for use and
there is no evidence showing willful or malicious action.
Under New York’s recreational use statute, a defendant owes no duty to keep premises
safe for use by others if five elements are met. N.Y. Gen. Oblig. Law § 9-103 (McKinney 2014);
Ferres v. City of New Rochelle, 68 N.Y.2d 446, 449-50 (N.Y. 1986). First, the plaintiff must
have used property for one of the specifically enumerated recreational activities. § 9-103(1)(a).
Second, the property must have been suitable for recreational use. Bragg v. Genesee Cnty. Agric.
Soc’y, 84 N.Y.2d 544, 548 (N.Y. 1994). Third, the defendant must be an owner of the land. § 9-
103(1)(a). Fourth, any failure to keep the premises safe must not have been willful or malicious.
§ 9-103(2)(a). Fifth, the plaintiff must not have given consideration for permission to use the
land. § 9-103(2)(b). The sole purpose of the statute is to induce property owners to permit
persons to come on their property to pursue specified activities so that the public can reasonably
pursue outdoor recreation. Ferres, 68 N.Y.2d at 451.
In this case, the owner, willful, and suitability elements are undisputed. For the owner
element, a defendant can own either private or public land. Sega v. State of New York, 60 N.Y.2d
183, 190 (N.Y. 1983). The Green Club is an owner because it owns the naturally wooded land
where Marc was injured. § 9-103(1)(a). To meet the willful element, an owner’s actions must be
based on a showing of particular, not inferred, malice and willfulness. Farnham v. Kittinger, 83
N.Y.2d 520, 529 (N.Y. 1994). There are no facts showing that the club’s failure to remove a
fallen tree limb from under a pine tree was willful and malicious. § 9-103(2)(a).

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For the suitability element, New York’s Appellate Division, Second Department, has
ruled that suitability is determined by how the property generally exists. Morales v. Coram
Materials Corp., 853 N.Y.S.2d 611, 617 (N.Y. App. Div. 2008). In Morales, plaintiff was
injured while engaged in a recreational activity, four-wheeling, in a gravel pit owned by
defendant. The lower courts found, based on testimony stating “riders had operated ATVs on the
property for several years,” that the land was suitable based on its prior use. Morales, 853
N.Y.S.2d at 617. In our case, the land was used for swimming by club staff a couple of times a
week during the summer before Marc’s injury in August. Just as the general existence of the land
in Morales was suitable given its prior use, the general existence of the club’s land in our case, is
also suitable given its prior use by staff.
The remaining two elements are in dispute. The first is whether Marc was using the land
for one of the specified recreational activities, namely hiking. The second is whether Marc gave
consideration for permission to pursue hiking.
A. Recreational Use
Marc was likely using the property for one of the enumerated activities under the statute,
specifically hiking, because although his purpose was to reach a swimming hole, he enjoyed
taking a path on foot about a half mile into the woods. His injury was also likely incidental to
hiking because it was the result of his walking in the woods after swimming to get his knapsack
for his return hike.
For an owner to be immune under the statute, a plaintiff must have used the property for
one of the enumerated activities. § 9-103(1)(a). Hiking, not swimming, is one of the activities
covered by the statute. Id. A person was hiking under the statute if two requirements are met.
First, a determination of whether a person was hiking must be made by applying a factors test.

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Guillet v. City of New York, 500 N.Y.S.2d 946, 948 (N.Y. Sup. Ct. 1986). Second, the plaintiff’s
injury must have been incidental to hiking. Sega, 60 N.Y.2d at 193. See Cramer v. Henderson,
503 N.Y.S.2d 207, 208 (N.Y. App. Div. 1986). Here, both requirements are in dispute.
1. Recreational Use: Hiking Requirement
Marc was likely using the land for hiking, even though his purpose was to go swimming,
given a consideration of all the facts and circumstances regarding his travel to the swimming
hole. These include the half-mile trek, the overgrown path in the woods, his preparation in
changing into walking shoes, bringing water and swimming trunks, and his enjoying the walk.
Hiking, under the statute, means traversing land by foot for pleasure or exercise and is
determined by a factors test. Guillet, 500 N.Y.S.2d at 948; See Cometti v. Hunter Mountain
Festivals Ltd., 660 N.Y.S.2d 511, 513 (N.Y. App. Div. 1997). This test takes into consideration
all of the facts and circumstances of a person’s activity including the path taken, length and
purpose of the journey, topography, and subjective intent. Guillet, 500 N.Y.S.2d at 948; But see
Cometti, 660 N.Y.S.2d at 513 (reasoning that subjective purpose is irrelevant). When interpreting
the meaning of hiking under the statute, it should be construed according to its ordinary and
popular significance. Gaugh by Rousseau v. Cnty. of Dutchess, 638 N.Y.S.2d 290, 291-92 (N.Y.
Sup. Ct. 1996); See also Cometti, 660 N.Y.S.2d at 512 (asserting that the meaning of hiking is
self-explanatory).
In Cometti, the New York Appellate Division, Third Department, held that a person was
hiking if the facts and circumstances support the conclusion that she was traversing land by foot
for the purpose of pleasure or exercise. Cometti, 660 N.Y.S.2d at 513. In Cometti, after putting
on sturdy boots, the plaintiff travelled on foot down a mountain trail, instead of taking a Skyride,
to find a location to watch a race. Id. at 512-13. The court reasoned that her subjective purpose to

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watch the race was irrelevant and instead considered her preparations, the nature of taking a path
down a mountain, and her voluntary choice to walk rather than use the Skyride. The court held
that these facts and circumstances supported the conclusion that she was traversing the property
for pleasure and exercise such that her activity fell within the meaning of hiking. Id. at 513; See
also Guillet 500 N.Y.S.2d at 948 (outlining that factors to consider include the path taken and the
length, purpose, and topography of the journey).
In our case, on a warm day, rather than using the swimming pools provided by The Green
Club, Marc decided to traverse land by foot to a swimming hole. He changed into walking shoes
and brought a bottle of water and swimming trunks to find an old dirt road 200 yards away. He
enjoyed listening to the running water of a stream as he traversed a path on foot, one-half to
three-quarters of a mile through the woods to get to a swimming hole.
Our case is analogous to Cometti because in both cases, plaintiffs prepared for and took a
path on foot for a purpose other than hiking. Cometti, 660 N.Y.S.2d at 512. In Cometti, the
plaintiff put on sturdy boots and took a path down a mountain, rather than use the Skyride, to
find a place to watch a race. The court, disregarding subjective purpose looked at these facts and
determined that the plaintiff’s actions in walking down the path were hiking. Id. at 513. In our
case, Marc put on walking shoes, grabbed a water bottle, and enjoyed taking a path through the
woods to reach a swimming hole rather than using the pools available to him. Just as the
voluntary preparation and traversing land by foot on the path was enough to transform the
plaintiff’s actions to hiking in Cometti, so will Marc’s choosing a swimming hole in the woods
over a pool, his preparation in putting on walking shoes and bringing a water bottle, and his
enjoying listening to a stream as he took a path one-half to three-quarters of a mile long through
the woods likely bring his actions within the meaning of hiking as it is commonly understood.

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See also Gaugh, 638 N.Y.S.2d at 291-92 (explaining that the ordinary meaning of hiking does
not apply to a minor who only walked 500-600 feet through a field to play with her brother).
It could be argued that Marc was not walking within the ordinary meaning of hiking
given the indefinite parameters of the factors test and considering that some courts use subjective
intent as one of these factors. E.g., Guillet, 500 N.Y.S.2d at 947-48 (reasoning that subjective
intent and purpose can be relevant in determining whether a person is hiking under the statute).
The argument would likely point out that Marc’s subjective purpose was to go swimming. While
courts such as Guillet may look to subjective intent or purpose, it is not dispositive. In Guillet,
although the court considered the plaintiffs’ subjective purpose to reach Indian caves, it was
outweighed by the fact that they had engaged in a pleasant summer walk on a warm day through
the woods and the court held that they were hiking. The analogous facts of our case, therefore,
would likely outweigh Marc’s subjective purpose if it were considered.
2. Recreational Use: Incidental Activity
Although Marc was not actually hiking at the time of his injury, his injury was likely
incidental to hiking because there is a relationship between his hiking and his actions at the time
when he was walking through the woods to get his stuff for a return hike back to the club after
swimming.
An injury is incidental to a specific recreational activity, hiking, if the plaintiff’s actions
under the circumstances and at the time of injury were sufficiently related to it. Sega v. State, 60
N.Y.2d 183, 193 (N.Y. 1983); Hulett ex rel. Hulett v. Niagara Mohawk Power Corp., 768
N.Y.S.2d 535, 539 (N.Y. App. Div. 2003). In Sega, the Court of Appeals of New York held that
an injury was incidental to hiking because the plaintiff’s action of resting on a rail at the time of
injury was sufficiently related to hiking. Sega, N.Y.2d at 193. In Sega, the plaintiff was hiking

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when she decided to rest on a railing that collapsed and injured the plaintiff. Sega, 60 N.Y.2d at
188. The court reasoned that although the plaintiff was not walking when she was injured, the
acts of sitting on the rail were sufficiently related to hiking to justify the conclusion that she was
hiking when she fell. Sega, 60 N.Y.2d at 193.
In Hulett, New York’s Appellate Division, Fourth Department, held that an injury was
incidental to the enumerated activity, bicycling, even though the plaintiffs were walking at the
time because of their circumstances in bicycling before and their intention to continue. Hulett,
768 N.Y.S.2d at 539. In Hulett, the plaintiffs were riding their bicycles, one of the enumerated
uses under the statute, when they reached railroad tracks. They got off their bicycles and walked
them across the tracks intending to continue riding. They attempted to walk back across the
tracks again after putting their bikes near some bushes to get money they had left on the other
side when they were struck by a train. Hulett, 768 N.Y.S.2d at 538. The court concluded that
“under the circumstances of this case,” the activity the plaintiffs were engaged in at the time they
were injured was sufficiently related to their bicycle riding. Id.
In our case, after 15 minutes in a swimming hole to which he had hiked about a half mile
to, Marc climbed out and began walking back to a tree where he had left his knapsack so that he
could hike back to the Club. While walking back to the tree, he tripped over a large limb and was
seriously injured.
Our case is similar to Sega because in both cases, the plaintiffs were not hiking at the
time of injury. In Sega, the plaintiff rested from hiking and was sitting on a railing when she was
injured. Sega, 60 N.Y.2d at 193. The court held that sitting and resting from hiking were
sufficiently related to traveling through the woods on foot to justify that she was hiking when the
accident occurred. Id. In our case, Marc was walking through the woods back to his knapsack to

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change for his hike back to the club after swimming. Just as the injury in Sega was considered
incidental to hiking based on the plaintiff’s actions being related to walking through the woods,
Marc’s actions would likely be considered incidental to hiking, even though he was not hiking at
the time, because an injury from walking through the woods in preparation for a hike back is
related to hiking.
Our case is also similar to Hullet because in both cases, the plaintiff’s overall
circumstances included prior recreational activity and an intention to continue the activity. In
Hullet, the plaintiffs were walking across train tracks to retrieve money left on the other side
when they were struck by a train. They had been riding their bicycles prior to their crossing the
tracks and were intending to resume riding after. Hulett, 768 N.Y.S.2d at 538. The court held that
the plaintiffs were engaged in the activity, bike riding, at the time of injury because their activity
was sufficiently related to their bike riding under the circumstances. Hulett, 768 N.Y.S.2d at 539.
In our case, Marc hiked about a half mile to a swimming hole where, after swimming for 15
minutes, he was walking back to a tree to get his knapsack to hike back. Just as bicycling in
Hullet was determined to be the activity engaged in at the time of injury based on the
circumstances of their biking before and intention to bike after, Marc’s activity will probably be
determined to be hiking based on his overall circumstances in hiking before swimming and
intention to hike after.
It could be argued that Marc’s injury was incidental to swimming because he was
walking away from a swimming hole when he was injured. Cramer, 503 N.Y.S.2d at 207 (ruling
that a plaintiff’s actions at the time of accident were sufficiently related and incidental to
swimming while walking away from a swimming hole). While the Cramer case is similar, it
does not provide the facts or reasoning for the court’s finding, including whether the plaintiff had

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hiked at all. The stronger argument, therefore, is that an injury while walking in the woods after a
hike and swim in order to resume a hike is sufficiently related to hiking.
B. Consideration
Marc likely did not give consideration to use the wooded area for recreational use under
the statute because his membership fee was only for unlimited use of the club’s facilities, which
likely did not include the wooded area.
In order for an owner to be immune under the statute, the plaintiff must not have given
consideration for permission to use the land. § 9-103(2)(b). Consideration for permission to
pursue a recreational activity exists when there is a nexus between the money paid and the
specific recreational activity. Heminway v. State Univ. of N.Y., 665 N.Y.S.2d 493, 495 (N.Y.
App. Div. 1997); Weller v. Coll’s of the Senecas, 635 N.Y.S.2d 990, 994 (N.Y. App. Div.
1995).Courts also look to whether the land is used by the unpaying public in determining
whether a fee was paid for use. See Heminway, N.Y.S.2d at 495. The statute was enacted
primarily to induce those who ordinarily would not open up their lands for recreational use to do
so with the incentive of immunity under the recreational use statute.
In Heminway, the Appellate Division, Fourth Department, held that no consideration for
permission to pursue a recreational activity existed where there was no nexus between a fee paid
for a lodge and the use of a hill that the lodge owned. Heminway, 665 N.Y.S.2d at 495. In
Heminway, plaintiff paid a $25 fee for use of a lodge and was provided a tube for sledding on a
hill behind the lodge where he was injured. The lodge allowed the public to use the hill for
sledding even without paying the fee. The court held there was no nexus between the fee and the
use of the hill because the fee was not for sledding. Id.

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In our case, Marc paid an annual fee for membership at The Green Club. A brochure
given to new members stated that the $10,000 fee was for “unlimited use of the facilities” and
included a map of the property. The property contained, among other things, tennis courts and
swimming pools. The remainder of the land is comprised of natural wooded areas also owned by
the club. Staff are not allowed to use the swimming pools, but can use the swimming hole in the
wooded area without paying a fee.
Our case is analogous to Heminway because in both cases, the plaintiff paid a fee for use
of facilities provided by the defendant and were injured on land open to the public and owned by
the defendant. Heminway, 665 N.Y.S.2d at 493-95. In Heminway, the plaintiff paid a $20 fee for
use of a lodge. The lodge allowed people who had not paid the fee to use the hill behind it for
sledding. Id. The court held that consideration had not been paid for permission to use the land
because there was no nexus between the fee and the use of the hill. They also noted that people
who had not paid could use the property. Id. In our case, Marc paid a $10,000 fee for use of The
Green Club’s facilities. The club allowed its staff members, who had not paid a fee to use the
natural wooded land. Just as there was no nexus between the fee and use of land in Heminway
because the land was open to the public and the fee was only for use of the lodge, there is also
likely no nexus between the fee paid by Marc and his use of the wooded area because the land
was open to the public and the fee was only for the use of the facilities.
It could be argued that the wooded area was a facility because it was also on the map and
it may not have been open to the general public. The stronger argument, however, is that given
the use by the staff, who are not allowed to use the facility’s pools, the land was probably open
to the public. Also, without more information, it is more likely that the map included the entire

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property to make its members aware of the opportunity of using the land, rather than to define an
entire wooded area as a facility.
V. Conclusion and Recommendations
In conclusion, The Green Club would likely be immune under New York’s recreational
use statute if Marc brought a negligence action. The Green Club owned the wooded area, which
was suitable given prior use, and there is no evidence showing willful or malicious action. The
elements in dispute are whether Marc was using the land for hiking when he was injured and
whether he paid a consideration to use the wooded area.
Hiking is traversing land by foot for the purpose of pleasure or exercise and is determined
by a factors test. It should be construed according to its ordinary and popular meaning. Given the
distance travelled, Marc’s dress, preparation, enjoyment of the walk, and the wooded
environment, it is likely that he was walking in the woods in the same sense that a hiker, as the
term is usually understood, would have.
An injury is incidental to hiking if the actions under the circumstances and at the time of
injury were sufficiently related to it. Marc’s overall actions in hiking to the swimming hole and
walking back to his knapsack to hike back are probably incidental to hiking.
The second element, consideration for permission to pursue a recreational activity, exists
when there is a nexus between the thing paid for and the recreational activity. Marc paid a fee to
use the club’s facilities but was injured on wooded land owned by the club and used by others
who had not paid a fee. Therefore, there is likely no sufficient nexus between the fees paid by
Marc and his use of the wooded area because the fee was only for the use of the facilities.

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Accordingly, I would recommend waiting until we have more facts before going ahead.
Marc could sue; however, the cost of pursuing his action may be unnecessarily risky given the
minimal effort it would take to gather facts we need, such as investigating the brochure or
property maintenance which might reveal that the woods were facilities. Many of the courts also
ruled that hiking was an issue of fact for a jury, and he may want to prepare for the costs and
effort of litigation. Another option for Marc may be to consider mediation and settlement, which
might offer a better chance of his recovering damages. I also recommend research into other
applicable laws in Marc’s action, such as the law for the maintenance of premises, specifically
that owners will not be held liable for injuries arising from conditions on property that are
inherent or incidental to the nature of property, and that could be reasonably anticipated by those
using it.