Cornell student Khalil King died when he fell 200 feet into the Fall Creek Gorge.
Cornell student Khalil King died when he fell 200 feet into the Fall Creek Gorge. (Anile Prakash)

ALBANY – A jury should decide whether Cornell University did enough to provide warnings that a potentially deadly drop-off awaited an intoxicated sophomore who strayed from a hiking path on the Ivy League school’s campus, an upstate appellate court ruled July 17.

A unanimous panel of the Appellate Division, Third Department, also said in King v. Cornell University, 517931, that the family of student Khalil Jamal Godfrey King may challenge the college over the physical safeguards it provided to hikers around the trail on the rim of the 200-foot-deep gorge.

The 5-0 panel denied the university’s motion for summary judgment, based on the ground that an intoxicated King brought on his own death by running on the trail in the early morning hours of Aug. 28, 2010, while heading with a friend from one frat house to another.

The body of King, a 19-year-old from Buffalo, was found the next morning at the base of Fall Creek Gorge. Police said he apparently crossed over a split-rail fence that ran along the edge of the trail and walked or ran over the 35 feet between the trail and the rim of the gorge and fell to his death.

According to court papers, King had an estimated blood alcohol level at the time of his death of 0.167 percent, or about twice the level of a drunken driver. There were also indications from friends who were partying with him that night that he was smoking marijuana, according to the court’s ruling.

Cornell said it was shielded from liability under General Obligations Law §9-103(1)(a), which grants immunity to property owners when others use their land for specific recreational activities, including hiking. But the appeals court said King’s action of running down the trail did not strictly meet the definition of “hiking.”

In addition, Justice Michael Lynch wrote for the court, the dangers of the Fall Creek Gorge were not as “open and obvious as a matter of law” as the university maintained when arguing that the school had no duty to warn people of any hazards.

Still photos and video of the area between the split-rail fence and the rim of the gorge reveal a “sparsely wooded area … sloping downward toward the gorge,” but not necessarily providing a clear view that such a precipitous drop was approaching, the court said.

“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,” Lynch wrote.

Also for a jury to decide is whether the warnings were adequate around the spot where King left the trail, the court said. It noted that in addition to the split-rail fence, there were three lampposts in the area where King left the trail along with signs reading, “WARNING NATURAL AREA USE EXTREME CAUTION.”

“There is, however, no express warning as to the proximity of the cliff to the trail, 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.”

Presiding Justice Karen Peters (See Profile) and Justices Robert Rose (See Profile), Michael Lynch (See Profile) and Eugene Devine (See Profile) joined in the ruling.

The decision upheld denial of Cornell’s motion for summary judgment by Tompkins County Supreme Court Justice Phillip Rumsey (NYLJ, Aug. 21, 2013).

Steven King and Alexis Mercedes Godfrey are coplaintiffs in the case on behalf of their son’s estate.

The King family attorney, Leland Williams of Rochester, said Khalil King was not blameless in the accident that led to his death because he had been drinking and smoking marijuana. But Williams said there had been five student deaths due to falls into gorges around Cornell in the years before King’s death and that the university shares a measure of responsibility.

“After things happen with a pattern after so many events, somebody should be held accountable,” Williams said in an interview.

He said he would cite cases at trial in which split-rail fences have been determined to be ineffective barriers against dangerous hazards such as the Ithaca gorges.

Williams is also the plaintiff’s attorney in Ginsburg v. City of Ithaca, 5:11-cv-1374, which is scheduled to go to trial beginning next month in federal court in Utica. In that case, Williams will argue on behalf of the family of another late Cornell student, Bradley Ginsburg, that Cornell and the city of Ithaca were negligent for not doing more to prevent students from committing suicide by jumping from bridges spanning the gorges that crisscross Cornell’s campus (NYLJ, March 26, 2014).

Cornell counsel Nelson Roth represented the university.

A Cornell spokesman declined to comment on the ruling, citing the ongoing nature of the case.

@|Joel Stashenko can be reached at jstashenko@alm.com. Twitter: @JoelStashenko