New York State Court of Claims

New York State Court of Claims

MELLIS v. THE STATE OF NEW YORK, #2000-009-006, Claim No. 94797


Claimant brought this claim alleging negligence against the State in the maintenance and repair of a boat launch site at Moffitt Beach Public Campground in Hamilton County. The Court found that a foreseeably dangerous condition existed, that the State had notice of the condition and failed to correct the condition, and that this condition was a proximate cause of claimant's accident. The Court therefore found the State 100% responsible for claimant's injuries.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

nicholas v. midey, jr.
Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Ed J. Thompson, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
September 26, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

By this claim, claimant seeks damages for personal injuries suffered by him on July 7, 1996, when he injured his left ankle as he was launching his boat at Moffitt Beach Public Campground, a State-owned campground administered by the Department of Environmental Conservation, located on Sacandaga Lake in Hamilton County. Claimant alleges negligence against the State in the maintenance and repair of the main boat launch at this beach. The trial of this claim was bifurcated and this decision addresses the issue of liability only.

The fact of this case are essentially undisputed. Claimant testified that on July 7, 1996, he was attempting to launch his boat at the main boat launch at Moffitt Beach. Claimant had recently purchased a 17 foot Starcraft boat and this was the first time that he was using the boat launch to launch with particular boat. Claimant also testified that he had used this facility on different occasions for approximately four or five years before the date of his injury, and had also utilized this particular boat launch three or four times previously in the spring of 1996. Claimant, however, testified that on each of these prior occasions, he would launch a much smaller boat (12 feet in length) which he could simply pick up off of his trailer and place in the water, without the necessity of having to actually enter the water himself.

On this date, as stated above, claimant was using the boat launch site to launch his recently purchased 17 foot boat for the first time. In order to launch this boat, claimant entered the water covering the base of the boat launch, and walked around to the rear of his boat so that he could slide the boat from the back of the trailer into the water. Claimant was walking barefoot at the time. Claimant testified that as he began to pull the boat into the water, he felt his left foot slide between two concrete slabs, that he heard something "snap"[1]
, and immediately felt pain in his left ankle.
It is claimant's contention that the concrete pads beneath the surface of the water at the boat launch had shifted over the course of time and separated, creating the opening into which claimant stepped, thereby causing the injury to his ankle.

Donald MacHattie, Facility Supervisor at Moffitt Beach at the time of the accident, testified that the condition of the launch site at the time of this accident was "poor", based upon his personal examination of the premises.

John W. Morrison, a Conservation Operations Supervisor with the Department of Environmental Conservation, also testified. It was the responsibility of Mr. Morrison to oversee the operation of several campgrounds, including Moffitt Beach. He testified that he had examined the boat launch area in 1996, prior to the accident. He testified that boaters had difficulty in properly utilizing the boat launch area since it was too shallow. Mr. Morrison had made a recommendation that the launch site should either be repaired or replaced due to the shallow condition of the launch area. He also testified that the concrete slabs on the lake bed had become separated under the water, in that ice during winter months would cause a shifting of the concrete slabs. He also testified that he did not have any reports of any accidents at the boat launch site prior to the date of this accident. The deposition of a non-party witness, Duane L. Saltsman, was also submitted to the Court for its consideration. Mr. Saltsman's testimony established that he was personally familiar with the condition of the launch area at the time of the accident, and that the launch area was "in bad need of repair." (See Exhibit 6, P.10). Furthermore, in his deposition, Mr. Saltsman testified that he had reported the poor condition to an official at the park, and had personally pointed out the defects to him at that time.

It is well settled that the State, as a land owner, has a duty to use reasonable care in maintaining its land in a reasonably safe condition (see,
Basso v Miller, 40 NY2d 233; Preston v State of New York, 59 NY2d 997). The State however, does not insure the safety of those who enter upon its lands, and the mere occurrence of an accident does not establish negligence (Mochen v State of New York, 57 AD2d 719).
In order to prevail in his claim, claimant must show the existence of a foreseeably dangerous condition, that the State had notice of the condition, that the State failed to correct the condition within a reasonable time, and that the failure to correct the condition was a proximate cause of claimant's accident.

In this case, testimony established that the boat launch site was in an extremely poor condition, creating the distinct possibility that an accident could occur. Furthermore, testimony also established that the State had actual notice of this condition, and even with this notice, had not taken any steps to repair the condition or restrict public access to the boat launch site. Furthermore, since the concrete slabs were located below water level, the conditions were not readily apparent to those using the boat launch site. Under the circumstances, therefore, it was inevitable that an accident of this nature would eventually occur. As there is no indication that the State made any attempt to correct the condition of this boat launch site after having the condition brought to its attention, the State must bear responsibility for the accident and the resulting injuries suffered by claimant.

In its post-trial brief, the State raised the affirmative defense of assumption of risk, and contends that claimant knew or should have known from his prior use of the boat launch area, as well as his visible inspection of the area at the time of the accident, that he was taking a risk of injury in using the boat launch site. In order for the doctrine of assumption of risk to apply, however, a claimant not only must have knowledge of the physical defect involved, but also must have an appreciation of the danger produced by the physical condition (see,
Maddox v City of New York, 66 NY2d 270). In this case, there is no evidence that claimant had any prior knowledge of the physical defect existing under the water level which caused his injury, and therefore the Court does not find the doctrine of assumption of risk applicable to the facts of this claim, nor does it attribute any comparative fault to claimant.[2]
Accordingly, the Court finds that defendant State of New York is 100% responsible for the injuries suffered by claimant.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this Decision. The Court will set this matter down for a trial on the issue of damages as soon as practicable.

September 26, 2000
Syracuse, New York

Judge of the Court of Claims

Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
The Court notes that assumption of risk was not pleaded by the defendant as an affirmative defense in its answer, as required by CPLR § 1412.