New York State Court of Claims

New York State Court of Claims

COOPER v. THE STATE OF NEW YORK, #2000-017-028, Claim No. 93809


The Court dismissed claimant's claim for damages arising from a sledding accident on the grounds that claimant had assumed the risk of injury in participating in this recreational activity and, in any event, claimant failed to establish that alleged breach of duty by defendant was a proximate cause of her injuries.

Case Information

Claimant short name:
Footnote (claimant name) :
The parties previously stipulated that claimant Barbara Oliver has changed her name since the filing of this Claim to Barbara Oliver Cooper.
Footnote (defendant name) :
The parties stipulated at trial that the State of New York owns the Harriman State Park and Silver Mine Recreation area and stipulated to amend the caption to delete the Palisades Interstate Park Commission as a defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Rider, Weiner, Frankel & Calhelha, P.C.By: Michael J. Matsler, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: John Healey, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 10, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant filed the instant claim for damages arising from a sledding accident that occurred on January 14, 1996 at the Silver Mine Picnic Area in Harriman State Park. Claimant contends that defendant was negligent in failing to prevent sledders from beginning their sleigh riding above a designated safe point on the hill which allowed them to gain excessive momentum. A bifurcated trial was held and this decision pertains solely to the question of liability.

The undisputed evidence elicited at trial establishes that on January 14, 1996, claimant, her fiancé Richard Cooper, and several children ranging in age from ten to sixteen, including claimant's ten-year-old daughter Kristy, traveled to the Silver Mine[1]
area of Harriman State Park to engage in sleigh riding. The hill at Silver Mine consisted of two slopes that were available for sleigh riding which were referred to at trial as the left and right slopes. Photographs of the area were admitted into evidence as Exhibits 1 through 9.
Claimant had never been to Silver Mine before this outing and upon arriving at the Park she and other members of her group stood at the bottom of the slopes and observed the conditions and sledders. Claimant estimated that this observation period lasted approximately 30 or 40 minutes before she attempted to go sledding with her daughter. She also testified that while she was standing at the bottom of the hill her fiancé had to push her out of the way because a sledder almost collided with her. Claimant described the sledding area as "pretty crowded" and "chaotic."

The uncontroverted proof also establishes that claimant and her daughter made several attempts at sleigh riding on the right slope within a period of approximately ten minutes. On their second attempt down the hill, a woman collided with them, causing them to attempt another run. However, because claimant felt that the slopes were too chaotic, she aborted the sleigh riding plan and began walking down the left side of the slope with Kristy out of the range of sledders in an attempt to get herself and her daughter to safety.

According to claimant, while she and her daughter were walking down the hill, she looked back and saw two children approaching them fast on a plastic flying saucer. She testified that she had no time to get out of the way, but managed to push Kristy to safety. The sledders collided with claimant, knocking her feet out from under her and causing her to land on her elbow. Claimant could not get up after the accident and was removed from the scene on a stretcher. Claimant was shown Exhibit 4A, which is an enlargement of the photograph admitted as Exhibit 4, and she made a circle on the exhibit to depict the general area where the accident occurred. The Court notes that the circle is below the area where the sheds are located on the hill.

Claimant testified that she did not observe any signs posted prohibiting sledding above any certain point on the hill and was only vaguely aware of the existence of sheds on the premises. However, the undisputed evidence at trial establishes that two sheds were present at the site (
see, Exh. 4) and that the shed on the left as you stood at the base of the mountain looking uphill was higher on the hill than the shed on the right side. Additionally, a sign containing the following prohibition and arrows was posted on the left shed: "Sledding Not Permitted Beyond This Point" (see, Exh. 3).
Claimant was shown Exhibit 4 and she identified the slope on the right of the photo as the location where she and her daughter had been sledding. She recalled that there was a lot of activity on the hill above the sheds and that "most of the people were starting to sled from" the area above the sheds on the date of the accident. She testified that the condition of the slope depicted in the photograph appeared the same as the date that she was there. She admitted that she and her daughter traveled up the slope above the shed area to the area shown in the photograph where a large group of people were gathered, but did not go above that point. She testified that she did not follow the little trail that is shown in the photo that extends all the way up the hill.

On cross-examination, claimant explained that when she arrived at the slope on the morning of January 14, 1996, she did not immediately ascend the slopes, but remained in the general area at the base of the hill for about forty minutes observing people sledding. She conceded that she observed sledders in the area that is depicted on Exhibit 4 above the sheds where the large group of people is gathered in the photo.

Based on her direct testimony that her fiancé had to push her out of the way to avoid being hit by a sledder during the time that they were waiting at the bottom of the hill, claimant conceded on cross-examination that while she was standing at the bottom of the hill and before she ascended the hill the first time, she was aware of the risk of impact with another sledder. She also conceded that while on the hill she was trying to avoid the possibility of an injury to her daughter Kristy which might result if she was hit with a sled. She acknowledged that she was apprehensive the first time she went up the hill because it was chaotic, but she nonetheless attempted to sled down the hill.

Claimant also admitted that she first saw the girls approaching her on the sled a few seconds before impact and when the girls were approximately ten to fifteen feet away. She agreed that she does not know where the children came from on the hill and that she had not seen them prior to what she described.

Kristy Oliver, claimant's daughter, testified that she is 14 and understood the meaning of taking an oath to tell the truth. She recalled that on the date of the accident she "stood around for a while," went sleigh riding by herself and then with her mom. She remembered riding down the hill on a flexible flyer three or four times with her mother. Miss Oliver was shown Exhibit 4 and recognized it as the area where they went sledding. She testified that she and her mother began sledding above the area of the sheds. She also recalled that when she and her mother were walking down the slope, she heard children screaming joyfully, turned around and saw two children on a flying saucer. She thought the children would avoid them, but the next thing she knew was that her mother had been hit and went "head over heels." Kristy estimated that she and her mother were even or below the area of the two sheds at the time of the impact and recalled that the saucer was "going pretty fast."

Richard Cooper, claimant's fiancé at the time of the accident, estimated that he and claimant had been standing at the base of the hill for approximately 30 minutes before claimant's accident. He recalled that from his position at the bottom of the hill he observed a person on the slope in the vicinity of the sheds fly up in the air and come down and saw people converging on the spot. He did not learn that claimant had been injured until he walked up the hill and arrived at the accident scene. Mr. Cooper also recalled that patrol cars had come into the parking lot at the base of the slope several times and that the lot faced the slopes. On cross-examination, Mr. Cooper conceded that claimant may have been below the sheds when the accident occurred. He also agreed that he never saw the children who struck claimant and has no idea where they came from.

Robert W. Rose, a sergeant with the New York State Park Police, testified that he has been employed by the Park Police for 14 years and has been a sergeant since 1992. He is a road patrol supervisor and the Silver Mine area is within the area of his patrol and was in 1996. He explained that when patrolling, he has the duty to observe whether park rules are being followed and to keep peace and order in the park. If he observes noncompliance with park rules, it is his duty to take action. If he responds to an accident, he completes a report and provides it to his supervisor. He is also responsible for reporting unsafe conditions by filing an "unsafe condition report" with the park police. He also testified that it would have been normal routine for his patrol officers to have visited that area in their patrol cars earlier that day.

Sergeant Rose was shown the photographs admitted into evidence as Exhibits 1 through 9, and he recognized them as depicting the Silver Mine picnic area. He testified that the conditions and facilities shown in the photos appear the same as in 1996. He recalled being informed of claimant's accident on January 14, 1996 while he was present at the Silver Mine area in response to an unrelated incident and that he immediately went to the scene. He testified that he found claimant below the area of the shed on the right which he estimated was 100 feet up the slope from the base of the hill. Sergeant Rose administered basic first aid to claimant's arm and called for an ambulance. He testified that because the slope was fairly steep at that point, stokes were used to remove her rather than a gurney because it would have been difficult to wheel a gurney up the snowy slope.

Sergeant Rose testified that after claimant's accident, he filed a report and instructed Ranger Peters to start moving the crowds down from the higher slopes. Sergeant Rose could not say with certainty when the sign prohibiting sledding above the sheds was erected.

Sergeant Rose was Shown Exhibit 10, a report that he authored on January 14, 1996 concerning claimant's accident. He also recognized Exhibit 11 as an Unsafe Condition Report that he had authored almost two years earlier on March 6, 1994 and submitted to the New York State Park Police Headquarter Sergeant James Clark, concerning several sleigh riding incidents at Silver Mine. He testified that he recommended in the report that a snow fence be erected at approximately the half-way point on the hill to prevent sledders from starting at high points on the hill that allowed them to gain excessive speeds while still allowing them to gain enough momentum to sleigh ride. Sergeant Rose testified that, to his knowledge, no such fence was erected after he filed this Unsafe Condition Report on March 6, 1994 and before claimant's accident on January 14, 1996. He testified that he did not specify where the fence should have been erected and was going to leave the precise location of the fence up to the engineers responsible for such decisions. He could not recall whether any signs were posted on the slope prohibiting sledding at the time he made that report. He reiterated that it was his intention in recommending the fence to keep people from going past a point where it would be imprudent for people to sleigh ride.

Claimant called Kieran Quinn, who has been the general park manager for the Palisades Interstate Park Commission for 20 years. Mr. Quinn testified that he is familiar with the Silver Mine area in Harriman State Park and it is within his jurisdiction. Mr. Quinn was aware of a written recommendation that a fence be erected in Silver Mine and had determined that the dangers of putting up such a fence would outweigh its benefits because of a history of accidents arising from people striking fences that are put to keep them from going higher on the hills.

Mr. Quinn was shown exhibits 14 and 15, which he identified, respectively, as work orders which he had approved for small signs prohibiting sledding beyond a certain point at the Silver Mine area dated December 1994 and December 1995. He identified Exhibit 16 as a sign request that was completed on January 1, 1996 for a larger sign also at the Silver Mine area. He was also shown exhibits 3 and 5 and he recognized that the signs shown therein resulted from the January 1996 work order. He testified that he and an employee, Donald Meybohm, made the decision as to where to place the sign. He explained that the decision was made to put the sign at that spot on the shed because they intended to put the sign at the point where the hill was steep enough for sledding but was not so steep as to cause sledders to gain excessive speed.

On cross-examination, Mr. Quinn testified that he was not familiar with any sledding accidents in the area between the two sheds at Silver Mine other than this one. Upon questioning by the Court, Mr. Quinn explained that it was not normal practice to allow sledders to start from above the sign and that when people were observed in the prohibited area they would be directed to move to the area defined by the sign. He testified that typically one or two officers would be on duty in patrol cars at the Harriman section of the park and that the officers were not permanently stationed near the slope.

At the close of claimant's case, defendant moved to dismiss the claim based on claimant's failure to make out a prima facie case that defendant owed a duty of care to claimant. The Court reserved decision on this motion.

Defendant recalled Sergeant Rose, who testified that when he found claimant she was approximately fifty paces down the hill from the shed on the left. He estimated that fifty paces equaled 125 feet. On cross-examination, Sergeant Rose conceded that he did not pace off that distance at the time of the accident, but had done so the night before he testified in Court. He also admitted that he did not mark the location of the accident at the time of the accident, and agreed that he basically guessed or estimated claimant's positioning.

Based on the foregoing proof, claimant seeks to hold defendant liable for its failure to use reasonable care to prevent sledders from beginning their runs in a prohibited area on the hill in question, which was a dangerous condition of which it had prior knowledge. In
Morgan v State of New York (90 NY2d 471), the Court of Appeals held that a participant in a sport or recreational activity "consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (id., at 484). Thus, a landowner or operator of a recreational area will be relieved of liability for risks inherent in the sport "when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks" (id.). Furthermore, "in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are ‘unique and created a dangerous condition over and above the usual dangers that are inherent in the sport'" (id., at 485, quoting Owen v R.J.S. Safety Equip., 79 NY2d 967). The pivotal inquiry in assessing the defendant's duty is whether the accident-causing condition was open and obvious to the claimant.
The Court finds that claimant fully assumed the risk of collision with other sledders, which was inherent in the sleigh-riding activity, given that participants were riding both steerable and non-steerable sleds on a slippery surface with the intention of gaining momentum. More importantly, the risk of collision was one which claimant fully appreciated, given her testimony that she stood at the base of the hill and observed the conditions and participants for some 30 or 40 minutes before sledding and her acknowledgment that she was nearly hit by an errant sledder while standing at the base of the hill shortly after she arrived.

Even assuming that defendant breached its duty of care by failing to prevent sledders from beginning their runs at a point above the area where the sign prohibiting it was placed, claimant has failed to present a
prima facie case of negligence because she has failed to establish that such breach was the proximate cause of her injuries. Contrary to claimant's contention that the sledders who hit her could only have come from that upper, prohibited area, claimant failed to prove by a preponderance of the evidence that those children started their ride at a point above the shed containing the sign. Both claimant and Mr. Cooper testified that they did not know where the children came from and claimant admitted that she first saw them when they were upon her. Additionally, the proof is uncontroverted that claimant's accident occurred below the shed upon which the prohibitory sign was affixed. Thus, the Court cannot find on this record that the sledders who collided with claimant initiated their run in the prohibited area. Given this absence of proof, claimant cannot establish that any lapse in supervision over the sledders by defendant was the proximate cause of her unfortunate injuries.
Accordingly, the Court now grants defendant's motion to dismiss the Claim for failure to make a
prima facie case, upon which the Court reserved decision at trial. All trial motions not heretofore decided are deemed denied.

August 10, 2000
White Plains, New York

Judge of the Court of Claims

At trial, claimant moved to amend the references to "Sterling Mine" to "Silver Mine" in the pleadings and the Court granted the motion with defendant's consent.