According to the testimony of the infant claimant, Paola Andujar, she was
injured while rollerblading in the early evening of July 2, 1996, at the skating
rink in Riverbank State Park. Ms. Andujar testified that she had been skating
with her friend, Ms. Concepcion, for several hours when, at approximately 7:00
P.M. a skate wheel on her left foot became stuck in a hole in the rink's
surface, causing her to fall. She said that she had not noticed the hole
earlier, and did not actually see it until approximately one hour after she
fell. She was twelve years of age at the time of the incident.
After the fall, Ms. Concepcion left the rink to find Ms. Andujar's mother,
Silda Ramirez, who had accompanied them to the rink According to the claimant,
when her mother arrived on the scene, approximately 45 minutes later, she did
not tell her how she had fallen, because at that time she did not know what had
caused her to fall. She also testified that she did not point out the hole to
anyone else there. She first told her mother that her fall had been caused by a
hole on the rink's surface when they arrived home that day.
Ms. Concepcion testified for the claimants. She stated that about three or
four hours after they began skating, the claimant's skate became stuck in a hole
in the rink's concrete surface, causing her to fall. She testified that she had
first noticed the hole in the rink surface about two to three hours after they
had begun skating that day. She did not point out the hole to her friend or to
the skate guards at the rink.
Ms. Concepcion testified that approximately two or three days after the fall,
Ms. Ramirez and she returned to Riverbank State Park to take photographs of the
rink (Exhibits 1 and 2). Both Ms. Concepcion and Ms. Andujar testified that
Exhibit 1 is a photograph of the hole that Ms. Andujar's skate went into causing
her to fall; they both testified that they had not noticed the hole the day
before the incident, when they had skated at the rink. Ms. Concepcion described
the dimensions of the hole as being "about three or four inches wide, and two or
three inches deep."
The defendant called the claimant Silda Ramirez as a witness. She testified
that she did not see her daughter fall, and that her daughter did not tell her,
while they were at the skating rink, that she had fallen into a hole because she
was crying. She also said that she did not notice the hole because she was
preoccupied with her daughter's condition.
Darcel Michel, the acting head of Riverbank State Park, testified on behalf of
the defendant. At the time of the claimant's accident, he was responsible for
overseeing the operation of the roller skating rink. Mr. Michel testified that
he would inspect the rink surface on a daily basis to determine if maintenance
was needed, and that he inspected the rink on July 2, 1996. He testified
further that during the summer of 1996 there were two skating sessions per day,
and that at the beginning of each session skate guards would inspect the rink
surface for potential hazards, which would be reported to a supervisor. If the
problem could be fixed right away it would be, and if not, the area would be
barricaded off by orange cones, and a work order would be written. Mr Michel
stated that he conducted a search for any written reports or complaints
pertaining to the incident underlying this claim, and did not find any. He
stated that he did not learn of the incident until after the claim herein was
filed. He testified that he did not observe any defects on the surface of the
rink on July 2, 1996, and that he never observed a hole of the dimensions
testified to by Ms. Concepcion. Mr. Michel said that it would have been
impossible for him or any of his staff to overlook a defect of that
"[T]he mere happening of an accident does not constitute negligence."
Candelier v City of New York
129 AD2d 145, 148. As in any negligence
case, the threshold issue is whether the defendant "had a legally cognizable
duty to prevent the accident" in which the claimant was injured. DiPonzio v
89 NY2d, 578, 582.
As clearly stated by Judge Bell of this Court in
Davis v State of New York
(Claim No. 92168, unreported decision filed
January 30, 1998), "The State's duty with respect to the maintenance of its
facilities is to use reasonable care to guard against foreseeable hazards or
dangerous conditions [citations omitted]. The measure of reasonableness is
essentially factual in nature. Since the State is not the insurer of its
premises, before a finding that the State breached its duty of reasonable care
can be made, claimant had a duty to prove by a fair preponderance of the
evidence that the State created a dangerous condition or had actual or
constructive notice of a dangerous condition and unreasonably failed to remedy
the condition [citations omitted]."
Upon consideration of the testimony and the evidence at trial, the Court finds
that the claimants have failed to meet their burden of establishing, by a fair
preponderance of the credible evidence, that the defendant either created or had
actual or constructive notice of a dangerous condition. The claim is therefore
All motions made at trial not specifically ruled upon are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.