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,
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.
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
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
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.
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
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
All motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.