New York State Court of Claims

New York State Court of Claims

ANGE v.THE STATE OF NEW YORK, #2000-013-505, Claim No. 91126


Synopsis


Slip and fall claim involving negligent maintenance of drainage system around water spigot at Cayuga Lake State Park. Claim dismissed

Case Information

UID:
2000-013-505
Claimant(s):
ELEANOR ANGE
Claimant short name:
ANGE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
91126
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
THOMAS C. SAN FILIPO, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: ED J. THOMPSON, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 25, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On July 4, 1993, while attending a family outing, Eleanor Ange fell and fractured the fibula of her right ankle at Cayuga Lake State Park. She attributes her fall to Defendant's improper maintenance of a campground spigot and drainage system. According to Claimant, excess water flowed down a grassy incline adjacent to the spigot creating a muddy, slippery area near the cabin where she and her family were staying. A trial on the issue of liability took place on November 16, 1999 in Syracuse, New York.

The photographic exhibits and the testimony of the Park Manager, John Shaffer, showed that the spigot was located between cabins 5 and 6 and was attached to a wooden post at a height of two to three feet. The area around the spigot was covered with a layer of No. 1 or No. 2 stone. Running from the bed of crushed stone was a trench of buried crushed stone called a "french drain." Excess water from the spigot was supposed to percolate through the bed of stones and into the drain so that it could be carried away to a culvert.

The accident occurred at approximately 9:00 p.m. Claimant, who was then 78 years old and is hearing impaired,[1] was walking with her sister up the grassy incline toward the spigot and cabins. It was dusk, but she was still able to see clearly where she and her sister were walking. In her deposition, she said that the terrain was grassy and looked "okay." She was not aware that it was muddy underneath the grass. As they approached the spigot, Claimant suddenly and unexpectedly lost her footing in mud that she had not previously seen. She fell to the ground, landing on her right ankle which she said she fractured. Mud covered her walking shoes and clothing.

At trial, Claimant used a blue marker to identify the place where she fell on Exhibits 1 and 2, two photographs of the area taken within weeks of the accident. These exhibits show the spigot, the coarse gravel bed and some of the surrounding terrain. The gravel directly under the spigot appears to be wet. Around the gravel, the ground is predominately grassy, but the grass is sparse in some places. Running down the grassy slope from the gravel, there is a worn area where the dirt is significantly more visible than it is elsewhere in the photograph. The blue mark that Claimant placed on Exhibit 1 was on the grassy slope, several feet away from the worn area. The blue mark that Claimant placed on Exhibit 2 is just at the edge of the area.

George A. Scardetta, a licensed professional engineer, testified on behalf of Claimant as an expert with regard to the construction and design of the spigot and drainage system.[2]

Mr. Scardetta prepared for his testimony by reviewing Claimant's Exhibits 1 and 2 and by inspecting the site of the accident on October 18, 1999 -- more than six years after Claimant's fall. He advised that when he visited the site he saw the same worn area shown in Claimant's Exhibits 1 and 2. He described the area as a swale which, in his opinion, was caused by water from the spigot.

Mr. Scardetta ran the spigot to evaluate how and where the water drained. At first, the bed of stones absorbed most of the water. After about two minutes, however, the water began to seep out from the stones and started flowing down the grassy slope, making it damp and muddy. Mr. Scardetta testified that the drainage pattern he observed was dangerous because the grass concealed some of the muddy terrain. The fact that the slippery area was located on an incline further contributed to the hazard.

Mr. Scardetta opined that the area was not properly arranged to drain the water away from the spigot. He felt that the wet, muddy condition could have been eliminated by building an open trench filled with gravel or crushed stone to carry the water away from the spigot area to a catch basin or cobbled trough. He acknowledged on cross-examination that he was not aware of any particular standard within the engineering profession for the design of a spigot and drainage area such as the one in question. He also acknowledged that he was not aware of any other falls that had occurred in the area prior to Claimant's accident.

The Defendant then called Mr. Shaffer, the park manager. He testified that 8 of the 14 cabins, including cabins 5 and 6, did not have any internal plumbing. The spigot in question was one of several spigots which were spaced to serve two cabins each. They were the primary source of water for washing dishes and hands for these cabins and were used routinely for these purposes. Mr. Shaffer stated that approximately 180,000 to 200,000 visitors come to Cayuga Lake Park each year. These visitors are both renters and day trippers. Mr. Shaffer was appointed park manager in 1988. He was not aware of any other accidents that had occurred during his tenure in the area where Claimant was injured. He advised, however, that he would not necessarily know of such falls unless an accident report had been filed. Usually reports are filed only if the patron suffers an injury.

When he learned of Claimant's injury, he sent one of the park officers to investigate. The officer prepared an accident report which was received in evidence as Claimant's Exhibit 10. It reveals that the officer surveyed the scene on July 5th at 11:30 a.m. and noted that excess water had run out of the stone bed and down the grassy incline. The officer returned to the scene about two hours later and took photographs. He noted that "excess runoff was slightly more at time of photos than at first inspection" (Claimant's Exhibit 10, p. 2).

Mr. Shaffer also testified that the french drain which services the spigots between cabins 5 and 6 had not been replaced, repaired or otherwise worked on since he had become manager. He acknowledged that the purpose of the drain and the gravel was to keep the surface of the soil dry. He agreed that if the surface was wet, then the drain was not working properly. Although there was no schedule for inspection of the drains, cabins 1 through 8 were cleaned once a week using water drawn from the spigots. He agreed that if the area surrounding the spigot and the ground adjacent thereto was wet from excess runoff, the cleaning crew would have noticed it.

Mr. Shaffer went on to testify that over the course of a number of years it was entirely possible for a drainage system to become filled and clogged with debris such as dirt and sticks and to stop functioning properly. However, he also noted that he had never seen a report, nor had a report ever been filed, that there was a problem with the spigot or the drainage in the area between cabins 5 and 6 during his tenure as park manager, up to the date of this accident.

As a landowner, the State has a duty to maintain its premises and facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233; McMullen v State of New York, 199 AD2d 603). The State is not, however, an insurer of the safety of all persons who use its premises and facilities (McMullen v State of New York, supra; Tripoli v State of New York, 72 AD2d 823), and the mere fact that an accident occurs in a State-owned facility does not ipso facto cast the State in liability (Preston v State of New York, supra). The burden rests with the Claimant to prove (1) that a hazardous condition existed; (2) that the State had actual knowledge or constructive notice of the hazardous condition but failed to remedy it; and (3) that the hazardous condition was the proximate cause of the Claimant's injury (see, Gordon v American Museum of Natural History, 67 NY2d 836; Lewis v Metropolitan Transportation Auth., 99 AD2d 246, affd 64 NY2d 670).

Having carefully considered the testimony, I find as follows: At the time of her fall, Claimant was walking up the grassy slope. She was stepping near the swale, not in it. The ground was saturated with water runoff from the spigot which made it muddy, slick and dangerous, and caused her fall. The grass concealed the fact that the ground where Claimant was walking was muddy.

Unfortunately for Claimant, the proof did not establish the critical element of knowledge or notice. To rely upon constructive notice, as Claimant does here, it is necessary to show (1) that the alleged defect was visible and apparent; and (2) that it existed for a long enough time for Defendant's employees to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, supra; see also, Faricelli v TSS Seedman's, 94 NY2d 772; Vara v Benderson Development Co., 258 AD2d 932).

The 1993 photographs establish that the condition that caused Claimant's accident was visible and apparent, at least as of the time the photographs were taken, However, proof that the condition existed for a sufficient period of time for Defendant to discover the condition and to correct it, was lacking. Claimant relied primarily on the opinion of Mr. Scardetta, who did not visit the site until six years after Claimant's accident. His testimony about when the condition arose was simply too speculative to be given any weight -- even to the extent that he was relying upon the 1993 photographs.

I am (as anyone would be) sympathetic to the injuries suffered by Claimant. I am also duty bound, however, to dismiss this claim unless Claimant proves that the State did not act as swiftly or as carefully as a reasonable landowner would have acted under the circumstances. On the record before me, I conclude that Claimant has not made that showing. Accordingly, Claim No. 91126 is hereby dismissed.

All motions not heretofore ruled upon are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.


May 25, 2000
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




[1]
At the time of the trial, the Court provided two certified sign language interpreters to assist Claimant.
[2]
The Defendant objected to the calling of this witness and to any testimony he might give on the basis that it did not receive notice pursuant to CPLR 3101(d) until November 4, 1999, eleven days before the trial. I permitted Mr. Scardetta to testify, reserving on the Defendant's motion to strike. Finding that the delay in disclosing Mr. Scardetta did not prejudice Defendant in any way, I will consider his testimony, but I direct Claimant's attorney to pay a $350.00 fine to the Clerk of the Court by check payable to the Lawyers' Fund for Client Protection Fund of the State of New York within 30 days after the filing of this decision (see, Matter of Piscionere, 161 AD2d 596).