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July 19, 1990


The opinion of the court was delivered by: Curtin, District Judge.


Plaintiff Peter Rains brought this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671, et seq. The plaintiff is seeking monetary damages for injuries he suffered when he fell into a "manhole" or "inspection hole" located on a breakwater in Buffalo Harbor that is maintained by the federal government.*fn1 According to the complaint, the plaintiff had traveled to the breakwater by boat in order to have a picnic on the structure. At the close of limited discovery relating to the issue of liability, see Item 8, the government filed the motion for summary judgment now pending before the court, asserting that New York's recreational-use statute, N YGEN.OBLIG.L. § 9-103, renders it immune from liability.


The "Old Breakwater" is a stone and concrete navigational structure running 7000 feet from the mouth of Buffalo's outer harbor south along the Lake Erie shoreline. Item 11, Exhibit B at 8. Owned by the federal government and maintained by the United States Army Corps of Engineers, it is one-half to three-quarters of a mile from the Erie Basin Marina and completely surrounded by water. Id., Exhibit B at 7, 12, 46. It can be reached by boat, by helicopter, or by swimming. Id., Exhibit B at 48.

Originally constructed in the 1860s and modified in approximately 1889, the breakwater consists of a stone foundation with a concrete overlay. Id., Exhibit B at 24-25. The concrete overlay has two levels, one close to the surface of the lake, and a second, higher level connected by steps to the first. Id., Exhibit A at 50-51. The only structure built on the breakwater is a navigational device placed at the north end of the breakwater. Id., Exhibit A at 74. The breakwater serves as a navigational aid and as protection for the Buffalo shoreline. Id., Exhibit B at 41, 45, 63.

At intervals of from 100 to 300 feet along the breakwater, there are inspection holes cut in the surface of the concrete overlay to allow examination of the underlying rock structure forming the wall. Id., Exhibit B at 14, 15. Some of the holes are covered by reinforced concrete lids while others are not. Id., Exhibit B at 26, 27. As some of the covers have disappeared over the decades, it has been the policy of the Corps of Engineers to fill the holes with rock. Id., Exhibit B at 27. The Corps of Engineers has estimated that, if left unfilled, these holes can be as much as four to six feet deep, depending on the level of the stone wall beneath. Id., Exhibit B at 25. The filled holes may become deeper and require additional fill as the rocks settle or are forced out of the holes. Item 16 at 63. The plaintiff estimated that the hole he fell into was approximately eight feet deep and thirty inches wide. Item 11, Exhibit A at 58-60.

According to the government, the breakwater is not intended for recreational use; rather it was built and is maintained for navigational purposes only. Id., Exhibit B at 41, 45. Nevertheless, the Corps of Engineers has not closed the breakwater to public use. Apparently with the knowledge of the Corps, the breakwater has been used by boaters for years. Id., Exhibit A at 25, 32; Exhibit B at 41, 45; Item 1 at ¶ 8. In fact, there are iron rings and/or cleats on the breakwater for tying up boats, although it is not clear from the record who placed them there. Item 11, Exhibit A at 74; Item 16 at 59. There are no signs prohibiting use of the breakwater except at the far-north end of the structure, where for a few years several signs have been posted to keep people away from an area frequented by an endangered species of bird. Item 11, Exhibit B at 37-39. The plaintiff testified that he had visited the breakwater approximately five to ten times prior to the accident, and that the breakwater was sometimes used as a "central meeting place" for sailors. Id., Exhibit A at 25, 32-33.

On the day of the accident, September 1, 1986, the plaintiff left the Erie Basin Marina in his sailboat with several guests aboard. Id., Exhibit A at 3-8. It was his intention to sail for several hours and then to dock at the breakwater for a picnic with other sailors. Id., Exhibit A at 20-22; Item 1 at ¶ 7. A flier had been passed around among Rains and other sailors suggesting a meeting at the breakwater that evening. Item 11, Exhibit A at 25, 28. At approximately 5:00 p.m., the plaintiff tied up his boat at the lower level of the breakwater and disembarked with his guests. There also were other boats tied up at the wall. Id., Exhibit A at 21, 26-28, 38-40. The plaintiff and his guests then ate and drank for about an hour and a half on the lower level of the breakwater. Id., Exhibit A at 42, 45-48.*fn2

At about 6:30 p.m. the plaintiff climbed some stairs to the upper level, apparently intending to walk along the breakwater. Id., Exhibit A at 50-52. After only a few steps on the upper level, while walking in one direction and looking in another due to a distraction, the plaintiff fell into an uncovered inspection hole. The plaintiff was able to break his fall into the hole with his hand and elbow, but injured his left knee during the fall. Id., Exhibit A at 53, 56-61; Item 1 at ¶¶ 9-10. After receiving assistance from other people at the breakwater, the plaintiff returned to his boat, motored back to the marina, and drove home. Item 11, Exhibit A at 62, 65-66, 69-73, 75-76.


The central issue is whether the breakwater and the plaintiff's activities fall within the purview of N YGEN.OBLIG.L. § 9-103. That statute provides in relevant part that

  an 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

  bicycle riding, hang gliding, motorized vehicle
  operation for recreational purposes, snowmobile
  operation . . . or to give warning of any
  hazardous condition or use of or structure or
  activity on such premises to persons entering for
  such purposes. . . .

Id. at § 9-103(1)(a). The statute does not, however, limit the liability that would otherwise exist "for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity." Id. at § 9-103(2)(a).

The government argues that the plaintiff's use of the breakwater was "incidental" to his primary activity — sailing — and that his use falls within the activities covered by the statute. Item 11 at 6-9. See also Item 14 at 4-5. The government also contends that the breakwater is "the type of relatively undeveloped structure to which this statute was intended to apply," and, consequently, that it cannot be held liable because the complaint makes no ...

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