New York State Court of Claims

New York State Court of Claims

CAMBINDO v. THE STATE OF NEW YORK, #2000-015-510, Claim No. 94159


The State is responsible for an injury caused in a State Park by a picnic table missing its usually attached seating bench when the State failed to discover the defect under its legal duty to reasonably inspect all park apparatus.

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):

Claimant's attorney:
Mark E. Seitelman Law OfficesBy: Jason L. Paris, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael A. Rosas, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 17, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The trial of this claim was bifurcated and this decision addresses the liability issue.

Claimant was born on August 17, 1931 and worked at Metropolitan Hospital as a Mental Health Assistant for approximately twenty-seven years prior to her retirement in February of 1998. The clients with whom claimant worked at Metropolitan Hospital were psychiatric outpatients with varying degrees of disabilities. On July 18, 1995 ten staff persons, including claimant, accompanied approximately thirty clients on a day trip to have a picnic at Lake Sebago in the Harriman State Park. The group traveled from the hospital to the park by bus, arriving at a parking lot near the lake between noon and 12:30 p.m. The group selected a cluster of approximately six picnic tables located in an area near the parking lot for their picnic.

After departing from the bus, claimant carried picnic supplies to the tables and began setting up tablecloths and food for the clients. Claimant continued this activity for approximately forty-five minutes, preparing and setting out food at approximately three or four of the picnic tables prior to arriving at the table where the incident giving rise to this claim occurred. She described the weather as clear and dry and the terrain where the incident occurred as rocky, hard ground with patches of grass and dirt. The Court received into evidence as Exhibit 1 a photograph of the picnic table where the accident allegedly occurred, taken a "few minutes" after claimant fell, which depicts a standard State park picnic table covered with a tablecloth and some items of food.[1]
The table is rectangular in shape and supported by four legs which are joined by cross-members located at both ends of the table. Although not visible in the photograph, testimony established that along one side of the picnic table a wooden bench seat running the length of the table was constructed by the placement of a piece of wood upon the cross members. More importantly, the photograph shows that the bench seat on the opposite side is missing and the cross members at each end of the picnic table are protruding out from the side of the table. To the right of the table is a tree, and in the distance Lake Sebago is visible. To the left of the table in the photograph is a barbecue area which was being used by some of the staff to prepare food.
Claimant testified that she approached the picnic table from the area near the tree carrying a bowl of salad in both hands. She placed the salad bowl on the table and then turned to her left to walk to where other staff members were congregated. At that point, one of her legs hit the protruding wood cross member causing her to fall to the ground breaking her right wrist. Claimant marked upon Exhibit 1 the place where she was standing immediately prior to the fall and circled the cross member of the picnic table over which she tripped. Claimant testified that after her fall she observed the cross member and realized that the bench seat was missing. Claimant stated that none of the picnic tables were moved prior to her accident and no one from her group broke or damaged any seats on any of the tables. She observed that there were no tree roots or rocks in the vicinity nor any pieces of wood on the ground that would have indicated the recent removal of the bench seat. Claimant was wearing prescription eyeglasses at the time of the incident and had not consumed any alcohol or drugs. She stated that she was not distracted prior to the fall and was looking straight ahead and somewhat down to the ground as she turned from the table. She could not recall whether she observed the cross member prior to striking it with her leg.

Kathleen Smith testified that in July of 1995 she was employed by Metropolitan Hospital as a psychiatric rehabilitation counselor and accompanied claimant on the trip to Lake Sebago. She further testified that upon arriving in the parking area the staff unloaded supplies from the bus and transported them to the picnic area which consisted of five or six picnic tables and several barbeque grills. At the time of the accident, Ms. Smith was on the opposite side of the picnic table directly facing the claimant as she placed a salad bowl upon the picnic table depicted in Exhibit 1. Ms. Smith was looking directly at the claimant or slightly down towards the ground when she observed the claimant turn to the left and take one step forward, whereupon she "flipped" and fell to the ground. Ms. Smith testified that the claimant was looking straight ahead prior to her fall and the witness observed that the claimant fell over the cross member which is circled upon Exhibit 1. Ms. Smith testified that Exhibit 1 was a picture taken with her camera by another staff member within a "few minutes" after claimant fell and that no one had rearranged any objects on or around the table prior to the photograph being taken. The witness stated that no one from the group had moved any of the picnic tables or broken any of the tables prior to the accident.

The defendant did not present any witnesses and, at the close of the claimant's evidence, moved to dismiss the claim for failure to establish a prima facie case by the preponderance of the evidence. That motion is denied.

The State, while not an insurer (
Mondore v State of New York, 12 Misc 2d 12, 16), has a duty to maintain its parks in a reasonably safe condition (Byrd v State of New York, 206 AD2d 449). If the State fails to maintain the equipment and apparatus made available for use by the public at its State parks in a reasonably safe condition it will be cast in liability to a person injured thereby (Sharapata v Town of Islip, 56 NY2d 332; Albert v State of New York, 80 Misc 2d 105, affd 51 AD2d 611). Generally, the State will not be held liable unless it had actual or constructive notice of the defective or dangerous condition or involved instrumentality (Laski v State of New York, 96 AD2d 723). However, the State has an affirmative duty to inspect and make certain that those portions of its parks which will foreseeably be used by the public are in reasonably safe condition (Preston v State of New York, 59 NY2d 997) as well as to "inspect, properly maintain and supervise" those items of park equipment it provides for use by the public (Serbalik v State of New York, 204 Misc 2, 5, affd 283 App Div 1136). The failure of the State to make such routine inspections will charge it with constructive notice of a dangerous condition (Serbalik v State of New York, supra at page 5; Meyer v State of New York, 92 Misc 2d 996). Stated differently, "if the defendant has a duty to conduct reasonable inspections, the issue of actual or constructive notice is irrelevant" (Weller v Colleges of the Senecas, 217 AD2d 280, 285, citing Watson v City of New York, 184 AD2d 690; see also 1A NY PJI 481). In Warner v City of Albany, 262 App Div 677, 678, the Third Department held that a government may be "under no obligation to furnish the bench, but having chosen to do so it was bound to exercise due care to see that a reasonably safe bench was provided". Here, it is beyond question that the picnic bench involved in this incident was defective in that the bench seat was missing. Furthermore, the photograph of the bench coupled with the testimony in the record establishing that the physical condition of the picnic table was not altered during the time claimant's group was at the park leads the Court to determine that the condition existed for a sufficient period of time that the State should have discovered it under its duty to inspect thereby charging the State with constructive notice. As to the issue of comparative fault, claimant was in the vicinity of the accident for more than forty-five minutes before it occurred and had the opportunity to observe that the type of picnic tables used in the park had attached bench seats. Since the claimant had been involved with setting up several tables within the picnic area she should reasonably have recognized that the seat was missing as she approached the table and put down the salad bowl. Consequently, the Court apportions 15% of the fault for the occurrence to claimant. The trial of the damages portion of this claim shall be scheduled forthwith.
The Clerk is directed to enter an interlocutory judgment in accord with this decision.

May 17, 2000
Saratoga Springs, New York

Judge of the Court of Claims

[1]All quotations are from the Court's trial notes.