Suit Over Fatal Cornell Gorge Drop Advances

     ALBANY, N.Y. (CN) – Questions swirling over the death of a student who fell off a cliff at Cornell University should be resolved at trial, a New York appeals court ruled.
     Khalil Jamal Godfrey King was a 19-year-old sophomore at Cornell when he fell 200 feet to his death in late August 2010 in the Fall Creek Gorge on campus.
     The Ivy League school in Ithaca, N.Y., is bounded on the north and south by deep gorges. Car and foot bridges traverse the gorges; hiking trails run along their rims.
     King’s parents, Steven King and Alexis Mercedes Godfrey of Buffalo, sued the school for damages in 2012, alleging negligence.
     The college sought to dismiss the complaint, citing immunity under general obligations law, which protects owners from liability when their property is used for specified recreational activities, such as hiking.
     In affirming the denial of summary judgment Thursday, the Appellate Division’s Third Judicial Department noted that there is no dispute as to “the circumstances leading up to decedent’s tragic fall, as described by his classmate, Damani Carter.”
     King fell off a cliff on a gorge trail behind the Phi Gamma Delta house on campus, a fraternity also known as “Fiji,” according to the ruling. Carter said he and King had been at a couple of fraternity parties and were walking toward another fraternity at 3:30 a.m. when King, who was intoxicated, quietly told Carter to “run, run” before bolting onto the gorge trail.
     Carter said he stopped running at a clearing and called for King to stop as well, but King continued on. Carter tried calling King’s cellphone a few minutes later but received no answer. King’s body was found the next day below a cliff on the trail.
     Ithaca police determined King had crossed over a split-rail fence that bordered the trail before reaching the cliff, according to the ruling.
     While Cornell argued that immunity applied under general obligations law, the court found that “the critical determination is whether decedent’s activity constituted ‘hiking’ under the statute.”
     “Hiking” is one of the recreational activities enumerated in the statute, which previous litigation defined as “traversing land ‘by foot or snowshoe for the purpose of pleasure or exercise,'” Justice Michael Lynch wrote for the five-judge panel.
     “As described,” Lynch said of King, “he ran down the gorge trail and, in that literal sense, was ‘traveling through the woods on foot’ or ‘hiking.'”
     But “under the distinctive fact pattern presented,” Cornell failed to establish “as a matter of law, that decedent was ‘hiking’ within the embrace of General Obligations Law … at the time of his death,” Lynch wrote.
     The college had also argued that, since the dangers of the gorge are “open and obvious,” it had no duty to warn King of any hazard beyond taking “all reasonable measures to maintain the property in a safe condition,” Lynch added.
     As a matter of law, “open and obvious” means a condition “that could not be overlooked by any observer reasonably using his or her ordinary senses,” according to the ruling. “The situation here is not quite so clear-cut,” Lynch said.
     Lynch noted that photographs from the scene show a sparsely wooded area between the trail’s split-rail fence and the cliff where King fell. Cornell contended the air space seen beyond the trees indicated the gorge, making the hazard open and obvious.
     “We disagree,” Lynch wrote. “Even though the air space reflects a decline in the landscape, the actual condition at the cliff’s edge, and the 200-foot drop-off from the edge, are not depicted.”
     As the Tompkins County Supreme Court found, “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,” he added.
     There also was a question whether Cornell took “reasonable measures” to safeguard the area, which is open to the public as a recreational area, Lynch said.
     Cornell submitted evidence showing warning signs and lampposts along the trail behind the Fiji fraternity, according to the ruling. It also submitted a brochure given to all incoming freshmen that warns of gorge dangers.
     “There is, however, no express warning as to the proximity of the cliff to the trail [where King fell] or any indication that the lampposts illuminated the area leading up to the cliff’s edge,” Lynch wrote.
     “In our view, the adequacy of the warnings and the safety measures taken remain questions of fact for resolution at trial,” he added. “Accordingly, defendant has failed to demonstrate, as a matter of law, that it is entitled to summary judgment dismissing the complaint.”
     Concurring were Presiding Justice Karen Peters and Justices Robert Rose, John Egan Jr. and Eugene Devine.
     Leland Williams of Rochester argued for King’s parents. Nelson Roth, deputy university counsel, represented Cornell.
     Cornell’s gorges, Fall Creek to the north and Cascadilla to the south, have been blamed in more than two dozen suicides by students and others since 1990, estimates show. Other deaths have occurred from illegal swimming in the gorges’ creeks, which are characterized by strong currents and deep pools.
     The 2009-10 school year was particularly tragic with six student suicides off gorge bridges, and five other deaths from accident or illness, according to media reports.
     The city of Ithaca has long capitalized on the gorges’ unique geology with the marketing slogan “Ithaca Is Gorges.” The formations date to the glacial ice age some 12,000 years ago that created the Finger Lakes, including Cayuga Lake, into which the Fall and Cascadilla creeks empty.

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