BILL NUMBER:S5906

TITLE OF BILL:  An act to amend the parks, recreation and historic
preservation law, in relation to the duties of the office

Purpose of the bill:  To expand the availability of swimming within
state parks by defining the Office of Parks, Recreation and Historic
Preservation's legal duty with regard to persons who choose to swim at
unguarded areas within its facilities so that New York State citizens
can enjoy more recreational opportunities like citizens in neighboring
states.

Summary of provisions:  The bill amends section 3.09 of the Parks,
Recreation and Historic Preservation Law to limit the agency's
liability for ordinary negligence in areas where lifeguards are not on
duty.

Existing law:  There currently is no statutory provision defining the
agency's duty to the members of the public that swim at the agency's
facilities.  The agency is subject to the common law standard of
negligence.

Section 9-103 of the General Obligations Law, known as the
"Recreational Use Statute," provides an affirmative defense in certain
circumstances for landowners, including the State of New York, who do
not prohibit the public from using their land for certain enumerated
              

recreational activities. Swimming, however, is not an activity
included in the statute.

Justification:  OPRHP operates approximately 75 designated swimming
beaches on lakes, ponds, and ocean shorelines in state parks across
New York and provides trained lifeguards, safety equipment and other
generally accepted items, practices and procedures for guarded
swimming areas in the State of New York. OPRHP offers these guarded
areas for public swimming, encourages the public to use them and
presently limits public swimming to only those guarded areas during
particular times.

However, OPRHP's designated swimming beaches represent only a small
portion of the hundreds of miles of coastline and available in-land
water bodies in New York's state parks. This bill seeks to expand
opportunities for the public to enjoy swimming in New York State
waters under the jurisdiction of the agency.

New York State's current policy is the most restrictive in the nation.
While OPRHP limits public swimming to guarded areas out of concern for
public safety and liability, should someone drown or be injured while
swimming or bathing in an unguarded area, many people are prevented
from swimming who would like to do so. All other coastal states have
some form of either statutory immunity or recognized common law
sovereign immunity that provides these states with the legal
protection needed to open up their shorelines to swimming even when
lifeguards are not on duty. See, e.g., Delaware (Del. Code Ann. tit.
7, sections 5901-5907 (West 2013)); New Jersey (N J. Stat. Ann.,
section 2A: 42A (West 2013)); Connecticut (Conn.  Gen. Stat., sections
52-557 (f)-(k) (2013)); Rhode Island (R I. Gen.  Laws Ann , section
32-6); Massachusetts (Mass. Gen. Laws ch. 21, section 17c (2013) (the


legal standard is recklessness); Maryland (MD. Code Ann., Nat. Res.
Sections 5-1101 - 1108); Virginia (VA. Code Ann., section 29.1-509
(West 2013) (the legal standard is gross negligence); and New
Hampshire (N.H. Rev. Stat. Ann., section 212:34).

Because New York State lacks a similar statutory provision, it has
been the long standing practice at OPRHP facilities to eject patrons
from unguarded areas and severely limit the areas where, and times
when, the public can use and enjoy the State's treasured coasts and
in-land water bodies. Whether OPRHP has a legal duty to keep the
public out of these unguarded water bodies is dependent on a host of
factors that will vary from case to case. This proposal seeks to
alleviate that uncertainty by establishing OPRHP's legal duty in
statute for these unguarded areas. Alleviating the uncertainty
occasioned by a case by case analysis under the common law negligence
standard, OPRHP will have the key needed to unlock and open up a
wealth of new water bodies and coastline areas now unavailable to the
public.

Budget implications:  This legislation has no direct fiscal
implications for OPRHP's operating budget.