Visitors walk along the paved path south of Ruggles Avenue, in Newport. Beyond this the path, the Cliff Walk becomes a little more rugged.

The Providence Journal / Kathy Borchers

NEWPORT –– Winding between Gilded Age mansions and the pounding surf of the Atlantic Ocean, the fabled Cliff Walk beckoned to newlyweds Simcha and Sarah Berman, of Brooklyn, N.Y., as it has to millions of tourists through the years.

But on a picturesque summer afternoon outside the Breakers mansion, with the perfume of honeysuckle mingling with the briny smell of seaweed, the honeymooners ventured off the paved walkway and down a winding dirt path for a closer view of the water.

Simcha Berman, then 23, was turning to take his wife’s hand when the ground suddenly gave way beneath his feet. He tumbled 15 feet to the top of a seawall, grasping at bushes that ripped from the embankment, then plunged over the wall and fell another 14 feet onto the rocks below. He fractured his spinal cord, and had to be raised from the rocks with ropes and a basket by a dozen Newport firefighters.

Today, Berman is a quadriplegic. Nine years after his Aug. 17, 2000, accident, his 2003 lawsuit against the City of Newport, the State of Rhode Island and the Preservation Society of Newport County, owner of the Breakers, is before the Rhode Island Supreme Court.

Berman’s lawyer, Ronald J. Resmini, contends that the defendants failed to keep the Cliff Walk safe, in spite of prior serious injuries and even deaths. There was no fence where Berman fell, and no warning sign. When the Bermans toured the Breakers, their guide encouraged them to enjoy the Cliff Walk. The suit cites the policy for guides: “Never tell visitors that a certain area is dangerous. If an injury should occur, such a statement could result in a lawsuit charging the society with negligence…”

Most of the Cliff Walk’s 600,000 to 1.2 million annual visitors enjoy the City by the Sea’s biggest tourist attraction without incident. City officials say the riskiest areas are fenced. This spring a fence was built where Berman fell, following erosion from last winter’s storms.

Newport parks official Scott Wheeler says that accidents usually involve people who have defied common sense by venturing too far from the paved walkway or hopping a fence or clambering down rocks from a pathway that bears the warning “cliff” in its very name.

Berman’s lawsuit raises the question of where to draw the line between personal responsibility and public liability.

“I actually had no clue how close I was to the edge,” Berman said in a deposition. He and his wife had strolled there after touring the Breakers. Sarah Berman testified: “I am not the kind of person to take risks. If it had appeared dangerous to me, I can’t imagine that we would have gone.”

THE CLIFF WALK snakes 3 ½ miles along Newport’s eastern shore, from Easton’s Beach in the north to Bailey’s Beach in the south. Centuries ago, it was a pathway for deer. Later, it drew Narragansett Indians and Colonial settlers, who scavenged cargo washed ashore from shipwrecks.

The Rhode Island Constitution of 1843 guaranteed public access to the Cliff Walk “for purposes of fishing and the gathering of seaweed.” In the late 1800s, as the area became a summer playground of the wealthy, the Cliff Walk became a public promenade, evolving into today’s public right-of-way that cuts across 57 privately owned properties.

Time, erosion and hurricanes have taken their toll, requiring continuing efforts to maintain Newport’s crown jewel. Claus von Bulow once chaired the Cliff Walk Committee. U.S. Sen. Claiborne Pell, who lived along the Cliff Walk and once fell off while jogging, helped secure federal funds for restoration. Safety was a constant concern.

In 1987, Salve Regina University student Brian Putney fell to his death off the cliff on Salve’s campus, just north of the Breakers. Salve’s president, Sister Lucille McKillop, had asked the Newport city manager four years earlier to fence the area.

“While I am aware of the public relations concerns … I believe the potential loss of life must take priority over the desire to provide this attraction to tourists,” she wrote. After Putney’s death, she wrote the city, “the proper definition of the edge of the Cliff Walk with chain-link fencing can no longer be put off.”

Putney’s family agreed not to sue, after Salve promised a fence would be put up. But none was. Four years later, on Aug. 6, 1991, a 21-year-old Barrington man, Michael Cain, fell to his death from the same area behind Salve Regina.

This time, the family did sue.

Cain, an honors student at Bryant College, was walking along the cliff at 2 a.m. with two friends when he slipped on a patch of mud weakened by heavy rain. He fell 70 feet to the rocks below. In 1999, the Rhode Island Supreme Court ruled against Cain’s family, saying that because the Cliff Walk officially closed at 9 p.m., he was legally considered a trespasser.

“A visitor to the Cliff Walk certainly should be aware of and appreciate the risks that exist along the edge of a cliff that rises approximately sixty to seventy feet from the ocean,” wrote Chief Justice Joseph Weisberger.

Justice Maureen McKenna Goldberg dissented, arguing that government officials were aware of “the extremely dangerous conditions” for more than a decade. The “well-worn” grassy path made it seem “a perfectly natural area for a stroller to stop, leave the path, and look out over the Atlantic Ocean,” she wrote.

After Cain’s death, the state put up a fence, for a mere $11,960 –– but not along the entire half-mile stretch extending south in front of the Breakers that a state official had warned “poses the most serious threat to the public safety.” Among the sections left unprotected was the spot where Simcha Berman fell in 2000, 23 days after the Supreme Court issued its ruling in Michael Cain’s death.

ON A RECENT SUNNY afternoon, tourists stroll happily along the Cliff Walk behind the Breakers, pausing to snap photos of the wind-swept Atlantic and the breathtaking mansions. A saxophonist play “Summertime.” Barefoot surfers, boards tucked under their arms, hop the fence to climb down to the rocky beach a bit farther south.

Scott Wheeler, who helps take care of the Cliff Walk as Newport’s tree and parks superintendent, points to a rocky beach about 30 feet below, where a couple sits while their two young children wade among the rocks in the surf.

“How do you think they got down there?” he asks. “I’ve seen things that horrified me –– parents allowing their children near the edge.”

Wheeler said that the Cliff Walk Commission struggles to balance safety and preserve the beauty of the experience, putting fences where the paved walkway runs close to the edge.

“If you put it all behind a five-foot fence, haven’t you destroyed the aesthetics?” he says. “It’d be like walking through a hamster tube.”

Resmini, Berman’s lawyer who also represented Cain’s family, has appealed a judge’s decision and predicts oral arguments before the Supreme Court this fall. Last December, Superior Court Judge Melanie Thunberg ruled that the City of Newport and the Newport Preservation Society were protected by a state law limiting the liability of landowners who open their property to the public for recreational use. The judge did note that the Supreme Court has voiced concern about a law that turns accident victims on publicly accessible land into trespassers, and urged the General Assembly to revisit it.

Simcha Berman, now 32, lives with his family in Brooklyn and is studying to become a certified public accountant. Confined to a wheelchair, he requires assistance for such basic tasks as eating and getting dressed.

His wife, Sarah, whom he met three months before their wedding through a matchmaker, divorced him in 2002, with his blessing, after taking care of him for two years. She testified that she struggled with the decision, but a major tenet of their Orthodox Jewish faith is that married couples have many children, which was now impossible. She remarried in 2004.

mstanton@projo.com