Relates to the duties of the office of parks, recreation and historic preservation with respect to swimming, diving, bathing or wading by the public in waterbodies

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.