Claimant Eileen Hamilton
seeks damages for injuries she allegedly sustained on June 6, 1993 when she fell
on an asphalt path which circled the lake at Rockland Lake State Park. The
trial of this claim was bifurcated and this Decision pertains solely to the
issue of liability.
The path, which was approximately 3.2 miles long, was used by walkers,
cyclists and skaters. In the past, claimant and her husband had frequently
walked in the park and claimant was very familiar with the path. Claimant
testified that on June 6, 1993, she and her husband, Robert Hamilton
("Hamilton"), arrived at the park at 10:30 a.m. and proceeded to the path from
behind the parking lot next to the
They walked from the boathouse in a southerly direction. Claimant described the
path as in good condition. After they had walked approximately 10 minutes and
200 yards, claimant sensed something behind her and turned to the right toward
her husband. She observed a bicycle approaching them from a distance of less
than 10 feet. Claimant testified that she moved to her left and her left foot
got stuck in a hole located in the middle of the path. Her leg gave way and she
fell. She did not see the hole before falling. Claimant stated that she was
not looking down at the pavement; rather she was looking ahead as she walked.
Claimant described the hole as deep enough to fit her foot up to her ankle,
approximately 6 inches deep.
Before reporting the accident, claimant and Hamilton went to Nyack Hospital.
They returned to the park later that day. Hamilton reported the accident to a
park employee, who walked Hamilton to the site of the accident, while claimant
remained in the car. Claimant maintained that the park employee was David Ries,
whom she saw later at an EBT and at trial.
The park employee prepared a Patron Accident Report (Ex. 4). The report
indicated that it was completed by Michael Grillo and reviewed by David Ries
(Ex. 4). The report stated, "[p]ot hole inspected by David Ries; found an
indentation about ½ " deep and 5" long past the fishing station on bike
path" (Ex. 4). Claimant testified that the size noted on the report was wrong.
She also testified that the report was incorrect in stating that the biker was
traveling in the opposite direction rather than approaching her from behind.
She said that she saw the report for the first time at trial.
On cross-examination, claimant was confronted with the "Notice of
that she had signed. It stated:
said hole/depression was ½" deep and
5" long and is past the fishing station on the bike path. Said hole/depression
was confirmed by David Ries-Park Supervisor on the day of the
acknowledged that she signed this document; however she maintained that she
corresponded with the attorney only by mail and that the description on the form
did not accurately describe the hole. Claimant was shown a photograph of a hole
in the path taken by David Ries on the day of the accident (Ex. F). Claimant
testified that the photograph did not fairly and accurately depict the hole that
caused her accident.
Robert Hamilton testified that he and claimant walked on the path for ten
minutes, approximately 200 to 300 yards beyond the boathouse, when claimant fell
as she stepped into a hole that she had not previously observed. Hamilton took
claimant to the hospital. Later that day, they returned to the park. Hamilton
reported the accident at the park office to an employee, whom Hamilton
identified as David Ries. Hamilton further testified that he and Ries inspected
the hole. Like claimant, Hamilton testified that he saw the accident report for
the first time at trial. He insisted that the report did not accurately
describe the hole.
Hamilton testified that the day after the accident, he returned to the park
and measured the hole at one and a half feet long, one foot wide, and five
inches deep. Like claimant, Hamilton acknowledged his signature on the Notice
of Claim, which described the hole as ½" deep and 5" long, and despite his
signature, testified that the description was not accurate.
David Ries, the supervisor of the park since 1992, testified that on the date
of claimant's accident, there were three permanent staff members who supervised
50 to 60 seasonal employees. Ries explained that he or a staff member inspected
the path daily by driving in a vehicle at a speed of three to five mph. He also
stated that park rangers walk the path daily, looking for any potential hazards.
Additionally, an estimated two million people visit the park annually and report
problems to the park staff. Ries stated that he had performed 400 to 600
inspections during the two years prior to claimant's accident, and in his
experience, a hole of the size described by claimants at trial would not be
overlooked and could not materialize overnight. The path was inspected the day
before claimant's accident and Ries stated that the park policy was to fill
potholes, which measured at least two to six inches deep, within 24 hours of
inspection. Ries further maintained that, on the date of claimant's accident,
the path was inspected. After claimant's accident, Ries inspected the path
south of the boathouse. He slowly walked approximately 500 yards, scanning the
path for any unsafe conditions. The only hole/depression that Ries found was
the one noted on the accident report, which was ½" deep and 5" long. Ries
photographed the hole (Ex. F). He determined that the hole was too shallow
to fill and he took no further action, other than to record his findings on the
Patron Accident Report (Ex. 4).
Ries testified that he met claimants for the first time at his EBT. Ries
maintained that he did not inspect the site with Hamilton and was not the park
employee to whom Hamilton had reported the accident. Ries explained that his
duties did not include completing accident reports, unless he had personally
witnessed the accident. Ries did not witness claimant's accident. He inspected
the path subsequent to claimant's accident and wrote the information on
claimant's Patron Accident Report at that time.
The State, as owner and operator of the park, has a duty to use reasonable
care in maintaining the property in a reasonably safe condition to prevent the
occurrence of foreseeable injuries (
, Basso v Miller
, 40 NY2d 233, 241). The State also has a duty
to warn the public of any latent dangers that are not readily apparent
, Walter v State of New York
, 185 AD2d 536). There is no
duty, however, to warn against a condition which is open and obvious and readily
observable by the reasonable use of one's senses (see
, Paulo v Great
Altantic & Pacific Tea Co.
, 233 AD2d 380).
Moreover, "[n]egligence cannot be presumed from the mere happening of an
accident. It is incumbent upon the part of claimant to show affirmatively by
competent evidence that the injury complained of was caused by reason of some
breach of duty by the State. Negligence must be proven" (
Mochen v State of NewYork
, 57 AD2d 719, 720). In order to prevail on
their claim, claimants must establish: the existence of a foreseeably dangerous
condition; that the State created the condition or had either actual or
constructive notice of the condition; that the State failed to remedy the
condition within a reasonable time; that such condition was a proximate cause of
claimant's accident; and that claimant sustained damages (see
v American Museum of Natural History
, 67 NY2d 836; Ligon v Waldbaum,
, 234 AD2d 347; Mercer v City of New York
, 223 AD2d 688,
88 NY2d 955).
Upon review of all the trial evidence and upon listening to the witnesses
testify and observing their demeanor as they did so, the Court finds that
claimants have failed to establish that defendant is liable. Significantly, the
Court finds that the testimony of claimant and her husband regarding the size of
the hole strains credulity. Notably, their description of the hole at trial was
wholly inconsistent with the Notice of Claim that they had both signed, and
their testimony attempting to explain this discrepancy was not
Conversely, the Court finds the
testimony of David Ries to be most credible and the Court accepts exhibit F as
an accurate depiction of the defect found in the path on the date of claimant's
accident, which is also consistent with Ries' description as set forth in the
Patron Accident Report (Ex. 4). Further, Ries' testimony established that the
path was inspected daily and that a hole, of the size described by claimants at
trial, would not be overlooked and could not materialize
Accordingly, the Court finds that the only defect in the path on the date of
claimant's accident was a hole approximately ½" deep and 5" long and that
defendant's failure to repair such defect prior to claimant's accident does not
constitute negligence (
, Trincere v County of Suffolk
, 90 NY2d 976 [trip and fall
claim based upon a cement slab elevated a little over a half inch above the
surrounding slabs was properly dismissed given all the facts and circumstances
presented including the dimension of the defect in issue]; Iadarola v Meadow
Plaza Dev. Corp.
, ___AD2d___, 707 NYS2d 872 [considering width, depth,
elevation, irregularity, and appearance of defect, Court correctly determined it
was a trivial defect as a matter of law]; Riser v New York City Hous.
, 260 AD2d 564 [pavement which was elevated approximately one inch
above surrounding pavement was a defect too trivial to be actionable];
Tripoli v State of New York
, 72 AD2d 823 [claimant did not establish
State was negligent in its maintenance of park where claimant fell in hole one
foot wide and eight to twelve inches deep in grass covered portion of parking
Accordingly, defendant's motion to dismiss, upon which decision was reserved,
is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 91883.