New York State Court of Claims

New York State Court of Claims

SCHNEPF v. THE STATE OF NEW YORK, #2000-016-114, Claim No. 100441, Motion No. M-62600


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):

Alan C. Marin
Claimant's attorney:
Joan Agostino
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, AAG
Third-party defendant's attorney:

Signature date:
January 8, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Gerard Schnepf was injured June 6, 1998 on the Montauk Downs Golf Course while descending the steps leading down from the thirteenth tee. At issue is the defendant's motion to dismiss the claim on the basis that Schnepf assumed the risks inherent to golfing, including those related to its natural terrain, and in any event, what caused his injury was apparent or readily foreseeable.[1]

While a regular golfer, Schnepf had only played the Montauk Downs course once previously -- a year or two before this incident. The first twelve holes that June day wereuneventful. The tee area for the thirteenth hole was described by Robert O. Cosgrove, the course manager and greenskeeper, in his deposition. The area is elevated about twenty feet from the path below for golf carts. A series of eleven steps leads to the first level platform and another step goes up to the actual tee area. The series of steps is made of two overlapping railroad ties; each step is about six inches deep and "inside the railroad ties...clay and dirt." (Cl affirm, exh B, p.12).

According to Schnepf's deposition testimony[2], he had gone up the steps without any problem, hit his tee shot with his driver and started down the steps, with one member of his threesome in front of him and the other golfer behind. On about the third step, his foot landed on a rock and he fell. Claimant could not recall if there was a railing along each side of the steps, but did say that as he was falling he grabbed onto a wooden rail on his right.

According to claimant, the rock was the size of a softball, and three to four inches of it protruded above the step surface. Schnepf stated that the railroad tie steps were filled with "hard packed dirt"; they contained no grass or stones (id., exh A, p. 21). The accident report submitted with claimant's papers provided that when the area was inspected after the incident by supervisor Sue Wuehler, she found "2 rocks higher than ground approximately 1 inch on third step from top" (exh C).

The Court of Appeals in Morgan v State of New York, 90 NY2d 471, 484, 662 NYS2d 421, 426 (1997), in deciding four cases involving sports mishaps, explained:

Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks...Thus, to be sure, a premises owner continues to owe a "a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" [citations omitted].

A golf course is of course natural terrain. For example, the rough bounding the fairways is just that and could well have errant branches, rocks, etc; but that is a risk comprehended by golfers. Here the steps, while obviously a lot rougher in design than a building staircase, are manmade. Taking the facts as claimant presents them for the purposes of this motion, a stone imbedded in a step and protruding three or four inches above is not a foreseeable risk. It is however a close call, and there are any number of cases that make it look so; but Schnepf's lawsuit can be distinguished.

In Conway v Deer Park UFSD No. 7, 234 AD2d 332, 651 NYS2d 96 (2d Dept 1996), plaintiff slipped on a sewer lid while running for a fly ball in a softball game. The appellate division upheld the grant of summary judgment for defendant: Conway admittedly observed the lid prior to the accident and supplied no evidence that would raise a triable issue of fact as to whether the sewer cover, which was intentionally installed as part of the field, unreasonably increased the level of risk; the placement of such lids was consistent with the prevailing practice for the design and construction of such a field; and there was no issue of maintenance - the cover was not loose or ajar. Similar is Bruno v Town of Hempstead, 248 AD2d 576, 670 NYS2d 864 (2d Dept 1998), which arose from a softball field injury caused by a protruding in-ground sprinkler. The case was dismissed; the record established that sprinklers were commonly found on softball fields and that plaintiff was aware of same.

Defendant relies on a recent Order of Judge Leonard Silverman of this Court involving virtually identical facts - a trip and fall on the steps at the same golf course, albeit the fourth hole. Galski v State of New York (cl no 97611; Memorandum Opinion and Order filed September 25, 2000, found in def affirm, exh A). But there the claimant "surmises" that he tripped on a knot protruding from the natural timber and made "no allegation that the step itself was in a state of disrepair, only that as constructed it was hazardous" (id. pp 2 & 4).

Distinguishing between the manmade and the natural on a golf course hardly results in a bright line for determining which risks are inherent to the sport. Thus in Egeth v County of Westchester, 206 AD2d 502, 614 NYS2d 763 (1994), the Second Department dismissed the action of a golfer who was injured while walking over a mound of earth that separated the seventh green from the path used by golf carts. What happened to Schnepf is distinguishable from the facts in Egeth:

The plaintiff testified that she was aware of the mound of earth having traversed it on a prior occasion, and the photographic evidence reveals it to be a gently sloping feature of the golf course...[T]he risk of injury, if any, was apparent, foreseeable, and voluntarily assumed by the plaintiff...Moreover, we find that the terrain around the green was inherent to the nature of the golf course and that, under the circumstances, the plaintiff was not unnecessarily or unreasonably exposed to danger...

206 AD2d at 502; 614 NYS2d at 764 (citations omitted).

Although Schnepf did use the steps just a few minutes before, on his way up to the thirteenth tee, the protrusion may not have been open and obvious. He – and for that matter, his threesome -- had played the first twelve holes of the course without noticing this kind of problem.[3] There was no reason to be especially alert for it at the thirteenth hole; moreover, as noted above, when claimant ascended the steps his golfing partners were right with him. In any event, a determination that the protrusion was open and obvious will turn on a more complete development of the facts. See Michalski v Home Depot, Inc., 225 F 3d 113 (2d Cir 2000). Compare with Paone v County of Suffolk, 251 AD2d 563, 674 NYS2d 761 (2d Dept 1998), where the parties' submissions were unequivocal that the hole in an asphalt basketball court surface was clearly visible.

In view of the foregoing, IT IS ORDERED that the motion of defendant (M-62600) be denied.

January 8, 2001
New York, New York

Judge of the Court of Claims

The following papers were reviewed -- 1) from the defendant: a Notice of Motion to Dismiss and supporting Affirmation including exhibits A and B; a Memorandum of Law; and an Affirmation in Reply to Claimant's Opposition; 2) from the claimant: an Affirmation in Opposition including exhibits A through C, and a Memorandum of Law.
Each party submits claimant's May 24, 2000 examination before trial of the claimant: cl affirm, exh A; def affirm, exh B.
Schnepf's deposition is, however, ambiguous as to whether the tee areas for the first twelve holes were similarly elevated.