New York State Court of Claims

New York State Court of Claims

CHAPMAN-HEICHEL v. THE STATE OF NEW YORK, #2000-004-008, Claim No. 101656


Synopsis


Falling rock in Watkins Glen. No notice/negligence.

Case Information

UID:
2000-004-008
Claimant(s):
CHRISTINE CHAPMAN-HEICHEL, Individually and as Parent and Natural Guardian of JUSTINE J. CHAPMAN-HEICHEL, f/k/a JUSTINE J. CHAPMAN, Infant
Claimant short name:
CHAPMAN-HEICHEL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101656
Motion number(s):

Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
FREDERICK M. CERIO, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: James E. Shoemaker,Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 23, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Justine is aptly described as a "lovely 7-year-old...young lady" by her attending physician (Cl. Ex. 2) a view confirmed by observation of her in the courtroom and a photograph of her in evidence. (Cl. Ex. 8) Justine was injured on August 9, 1999 when she was struck by a falling rock or rocks at the Watkins Glen State Park (Park). A rock hit the back of Justine's head and the same rock or a different rock struck her right forearm. The rock that struck her arm caused a "Probable right distal radius buckle type fracture" (Cl. Ex. 2) and the injury to the back of her head was subsequently closed with six stitches. Fortunately, both injuries were such that Justine did not suffer any permanency.


The facts that give rise to this Claim are not in substantial dispute.


On the date of the accident, Justine accompanied her grandmother, Linda Chapman, to the Park. They ascended the gorge in the Park by a trail and steps (there were apparently 832 steps en route), traveling the approximately one and one half mile to the top of the gorge. They then began to retrace their steps down the gorge to the entrance of the Park. The gorge ascended in an east to west direction. As they returned down the gorge, proceeding easterly, they were walking along a path which was located against the north wall of the gorge some distance below the top of the gorge and some distance above the bottom of the gorge. (see, Cl. Ex. 3 and 5) A stone wall followed the southerly edge of the pathway, demarking the path from the gorge below. (see, Cl. Ex. 3 and 5) As they continued their downward journey, they came to an area referred to at trial as the show area. (see, St. Ex. B) In that area there was a break in the wall on the south side of the path. The break led to a stairway that descended the face of the gorge to what appears to be a cul-de-sac area, located some distance below the path, where visitors to the Park could gain a closer view of the gorge below. (see, Cl. Ex. 10) At the time, employees of the Park were replacing the stairs that led to the lower cul-de-sac by placing new cut stone slabs on the existing worn stair slabs. (see, Cl. Ex. 10) Beyond the opening in the wall that led to the aforedescribed stairs and further to the east a hose was stretched across the trail which carried water to the workmen on the stairs. There were plastic cones in place marking the location of the hose crossing the trail. (see, St. Ex. G) As Justine and her grandmother proceeded east down the path, but before reaching the entrance to the stairs descending to the cul-de-sac, some shale type stones or rocks dislodged from the face of the gorge directly above the path and, after striking a ledge on the face of the gorge, continued downward.[1]


Linda Chapman testified that as she and Justine were approaching the show area she was "holding on my granddaughter's hand and we were close to the wall and all of a sudden we heard rocks starting to fall. People started shouting, run get out of here, you know".[2] Asked what happened next, Linda Chapman recalled that "We got to the opposite side...maybe ten feet or more away from that wall at that point. She was screaming...and I went to reach for her and I noticed the blood on my hands...and I turned her around and that's when I noticed the back of her head was all bloody". Linda Chapman observed the workers who were replacing the stairs. She was asked if they were using any tools and machinery and she responded, "They were using chisels and a hammer kinda chipping, probably cutting, I don't know, probably cutting, making a mark to cut a piece of rock or something". Asked if the work being done was "loud", she responded that it was, adding, "it just made an echoing sound in a cavern like that".


Clifford Lott, the assistant Park manager, described a scaling procedure that had been followed at the Park in years past and that had been performed on the walls of the gorge in the show area on April 12 and April 13, 1999. Mr. Lott testified, "What we do is...starting at the end of March or early April...we repel from the cliffs above...when the scalers come down...from the top, they tap away all the stone on the way of the face [sic] down, to knock any loose stone down and they go up through the entire gorge". State's exhibit C is a photocopy of two pages from a daily log kept at the Park which reflects the fact that the gorge walls in the show area were scaled on April 12 and April 13, 1999.


Ross Lovell was one of the Park employees who were engaged in replacing the stairs, at the time of the accident. He described the equipment being used as a "stone table, a bucket of tools and a drill". Asked on cross if the work being done caused echos, he responded, "a little". Asked to describe "in your own words" his "observations that day when the accident occurred with Justine", Lovell testified "Well, it was a very, very nice day. The Park was very busy. I had just seen several people walk through the small opening that I can see the gorge wall at the top of my steps, walked by there, and shortly thereafter is when I...heard the commotion". Asked "And you could see rocks coming from above?", he responded, "Correct". Mr. Lovell also testified, "Well, I knew some stones had fallen on the trail and I could hear some people yelling and making noise, so I immediately rushed up there to assess the situation". It was Mr. Lovell who made the previously described marks on Claimant's Exhibit 3. (see supra, p 3, fn1)


State's Exhibit D in evidence[3]is a photograph of a sign which reads in pertinent part:
WARNING

PROCEED WITH CAUTION

STAY ON MAIN TRAILS

KEEP AWAY FROM CLIFF EDGE

BEWARE OF FALLING ROCKS

AND LOOSE STONE ON TRAIL

PEOPLE ON TRAIL BELOW

DO NOT THROW OR KICK

STONES INTO GORGE

On cross-examination, Linda Chapman was asked if she saw this sign before she took Justine "up to where Jacob's ladder is?" and she responded, "Yes, this sign has always been there to my knowledge".


From the foregoing certain conclusions can be safely reached. First, it was foreseeable to Park employees and, indeed, to Linda Chapman that rocks and stones might fall from the face of the gorge above onto the path below and that those rocks might strike a visitor to the Park. That was the clear import of the warning sign which Linda Chapman had previously seen. Second, it is clear that the effort to dislodge loose stone and rocks on the face of the cliff by repelling down the cliff face and taping the cliff face in the spring, prior to the time that the Park opened, was not completely successful, a realty also demonstrated by the posting of the warning sign. Third, there is no question that Justine, seven years old at the time, did not understand the import of the warning set forth on the warning sign.


The State is not an insurer of park visitors (Tripoli v State of New York, 72 AD2d 823), but it has a duty to maintain its parks in a reasonably safe condition to prevent the occurrence of foreseeable injuries. (Basso v Miller, 40 NY2d 233) A breach of that duty, however, cannot be inferred from the mere happening of an accident. (Mochen v State of New York, 57 AD2d 719)


"In an action brought by an infant to recover damages for personal injury the contributory negligence of the infant's parent or other custodian shall not be imputed to the infant". (General Obligations Law § 3-111)


Although one must empathize with Justine in assessing what must have been a scary and painful experience, the Court must dismiss this Claim, since the State did not violate a legal duty to Justine. In the Court's view, the steps taken by the State to lessen the risk of rocks falling from the face of the gorge onto the path below were reasonable and the warning given to patrons of the Park that rocks might indeed fall from the face of the gorge onto the path below was reasonable as well. In point of fact, there was no proof that the steps taken or the warning given were inadequate in any way or that there was a history of falling rock accidents in the Park which would have dictated some further or more extensive measures or warnings. In this regard, there was no proof, expert or otherwise, that the effort to dislodge loose rocks by repelling down the face of the cliff in the spring prior to the time that the Park opened was performed in a negligent or inadequate fashion. Further, this Court is not prepared to infer that the sound of tapping a rock surface with a hammer caused rocks to dislodge from the gorge wall, at least not without some estimate of decibel levels and expert input on the subject.


Finally, it is clear that Linda Chapman was not negligent in any way in deciding to take Justine in the Park, after having read the warning sign. She was justified in believing, which the Court infers from the proof was actually the case, that the risk of a rock falling and striking either Justine or her was remote and that that risk was an acceptable one when juxtaposed against the pleasure that both would experience in traversing the gorge. Were the Court to reach a contrary result, logic would dictate a warning sign that reads:
NO CHILDREN ALLOWED IN THE GORGE
Or, worse:
NO PARK PATRONS ALLOWED IN THE GORGE
The Claim is dismissed.


ENTER JUDGMENT.



June 23, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
Claimant's Exhibit 3 is a photograph of the gorge. The "X" mark on the face of the gorge above the path with an arrow directly beneath the "X" pointing downward, another "X" mark directly on the surface of the path and a "O" with an arrow pointing downward, were made by a Park employee who testified that he actually saw the rocks as they came down the cliff. The upper "X" on the face of the gorge is his estimate of where the rocks dislodged, his "X" on the trail is where he estimated Claimant was hit and his "O" is his designation of the location where the workers were installing the new stair treads.
[2]
Unless otherwise indicated, all quotations are from the Court's trial notes or from the trial electronic recording cassettes.
[3]
See also State's Exhibit I, previously marked Claimant's Exhibit 12 for identification, but ultimately re-marked and offered into evidence as State's Exhibit I.