New York State Court of Claims

New York State Court of Claims

MEIGHAN v. New York, #2000-019-001, Claim No. 99677


Synopsis


Claimant ran into a concrete marker while playing in the dark on campgrounds owned by the State. Claimant argued the marker was improperly located in an open area and inadequately maintained. Court found the sole proximate cause of the accident was Claimant's inattentiveness and reckless conduct of running in the dark. No liability found. Claim DISMISSED.

Case Information

UID:
2000-019-001
Claimant(s):
JOSE L. MEIGHAN, JR., an infant under the age of fourteen years old, by his mother and natural guardian, ANA MEIGHAN
Claimant short name:
MEIGHAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99677
Motion number(s):

Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
MALLILO & GROSSMANBY: Michael L. Worthington, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Alan B. Berkowitz, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
April 3, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Ana Meighan brings this Claim as mother and natural guardian of Jose L. Meighan, Jr., an infant under the age of fourteen years old, for injuries Jose L. Meighan, Jr. sustained when he ran into a concrete marker on September 13, 1997 at the Wildwood Campsite located in Wading River, New York. The trial of this Claim, heard on February 9, 2000, was bifurcated and this Decision addresses the issue of liability only.


On September 13, 1997, Jose L. Meighan, Jr. (hereinafter "Claimant"), in the company of his parents and his sister, traveled to the Wildwood Campsite (hereinafter "Wildwood") located in Wading River, New York. Claimant, born on August 13, 1984, was 13 years old at the time of this incident and 15 years old at the time of trial. The Meighans were joined at the campsite by another couple and their two children. Neither of the couples nor any of the children had previously visited Wildwood. Wildwood is a State Park and campground consisting of 322 individual campsites and various support facilities. Claimant and his family arrived in the morning and were assigned to campsite number D43.


The testimony at trial reveals that each individual campsite is designated by triangular concrete markers approximately 18 inches high, located on the side boundaries of each campsite, and positioned approximately 5 ½ feet off the adjoining roadway (hereinafter "markers"). The markers are painted with white flourescent reflecting paint with an apex of each marker facing the roadway. Each campsite is designated by a number which is painted in black on either the left or right side of the marker. The testimony at trial reveals the Meighans located their campsite (number D43) by way of these markers. The testimony also reflects both families, including Claimant, spent the day at the campsite.


As is the case with most State Parks, individual campsites are unlit in order to maintain a natural rustic setting as well as enhance the experience of sleeping and living in the great outdoors. Consequently, as night fell the campsite became dark with the only light source coming from lanterns at the campsite. At that time, Claimant, along with the other children, was playing a form of hide-and-seek in the dark called "manhunt". At approximately 7:45 p.m., while Claimant was running at full speed chasing after one of his companions approximately 5 feet ahead of him, he struck the edge of one of the concrete markers with his left knee sustaining injury. Claimant testified that it was as dark as if his eyes were closed at the time of the accident.


Claimant called New York State Park Police Officer, Jack Sadousky, who investigated the above-described incident. Officer Sadousky was working the 4:00 p.m. to midnight shift on September 13, 1997 when he was notified of an accident at campsite D43 with possible injury. He testified it was "dusk and fairly dark" when he arrived at campsite D43. The Officer described site marker D43 as being white with black flourescent painted letters on the two sides facing the roadway. The witness testified that the back of the marker had not been painted. However, the witness testified that he inspected the marker after the accident and saw blood on the front left portion of the marker which, he speculated, meant Claimant collided with "the painted side facing the road."[1]


On cross-examination, Officer Sadousky indicated that these markers can generally be seen from all areas of a campsite and the flourescent reflective paint would be visible at night when illuminated by a light source. To this witness's knowledge, there had been no prior accidents at Wildwood of this nature relating to these markers. Moreover, Officer Sadousky testified that while preparing his accident report Claimant told him he was "running in the dark without a flashlight" (Cl. Ex. 6) and ran into this marker. Officer Sadousky further testified that during his experience as a Park Police Officer, as well as an EMT, he has seen many trip and fall injuries in the Park, but was unaware of anyone tripping over, or injuring themselves on, the more than 240 markers located in Wildwood.


The State called as its only witness Mr. A. Robert Knellen, a New York State Office of Parks and Recreation employee for more than 50 years. Mr. Knellen has been the Park Manager at Wildwood for the past 10 years and his duties include overseeing maintenance and repair of the grounds. He testified that Wildwood currently has 322 campsites all identified and delineated by these markers. He further testified he was unaware of any prior accidents involving a person running into or stumbling over these markers. Mr. Knellen believed that the entire marker (all three sides) was painted with white reflective paint.


It is a well-settled that a campground owner, here the State:
is not legally obligated to take extraordinary precautions in the operation and maintenance of his premises.... Rather a campground owner is bound to exercise ordinary and reasonable care in maintaining the campgrounds in a reasonably safe condition so as to prevent foreseeable injury [citation omitted].

(Csukardi v Bishop McDonnell Camp, 148 AD2d 657, 658). In any event, the State is not considered an insurer of the safety of every person who uses the campgrounds (Macey v Truman, 70 NY2d 918, 919) and there is no duty to "[w]arn against a condition that can readily be observed by those employing the reasonable use of their senses." (Tarricone v State of New York, 175 AD2d 308, 309, lv denied 78 NY2d 862). Finally, to establish a prima facie case of negligence Claimant must demonstrate the State either created a dangerous condition or had actual or constructive notice of the dangerous condition and a reasonable time to correct it or warn others. (Kraemer v K-Mart Corp., 226 AD2d 590).

Claimant's testimony was inconsistent on the issues of his awareness of this marker and the visibility at the time of the incident.[2]
With respect to his awareness of the existence of this marker, both Claimant and his mother testified they used these markers to help locate their assigned campsite.[3] Moreover, Claimant conceded he was at the campsite from morning until after dark on the evening of September 13, 1997. As such, Claimant had adequate opportunity to observe the campground marker throughout the course of the day in full daylight. Consequently, it is difficult for this Court to credit his testimony that he did not see the marker at any time earlier in the day. Additionally, inconsistencies in Claimant's proof as to the level of visibility were also drawn out during cross-examination. For instance, Claimant testified that he could see his parents from approximately 10-15 feet away; a tree he ran around just prior to colliding with the marker; as well as the friend he was chasing about 5 feet in front of him. However, Claimant also agreed to a description of it being "as dark, let's say, as when you close your eyes." Claimant can't have it both ways. In either event, Claimant is bound to see that which was readily observable by the reasonable use of one's senses either from earlier in the day or at the time of the accident. (Paulo v Great Atl. & Pac. Tea Co., 233 AD2d 380; see also, Clark v State of New York, Ct Cl., June 30, 1998, King, J., Claim No. 90936). In the alternative, it was Claimant's obligation to avoid inattentive, reckless conduct, such as running outdoors in the dark, by which he needlessly exposed himself to serious risk. (Gustin v Finger Lakes Camp, 700 NYS2d 327, 330; Barowsky v State of New York, Ct Cl., November 3, 1999, Ruderman, J., Claim No. 95137).

While the State admittedly installed these markers, no evidence was presented from which the Court might conclude that in so doing the State created an inherently dangerous or defective condition. Claimant now contends the placement of the marker was in and of itself inherently dangerous. However, Claimant submitted no proof that this marker's location on the campground border 5 ½ feet from the roadway and 6 feet from a tree violated any established campground safety rules or regulations, or was otherwise negligent in any way. Alternatively, Claimant argues the marker was defective because of the alleged failure to paint or maintain its rear side with reflective paint. The evidence, however, is inconclusive as to whether it was painted since Claimant's witnesses testified it was not painted and the State's witness testified it was painted.[4]
In any event, Mr. Knellen testified that it was the specific job function of a given employee, Charles Rule, to inspect and maintain these markers, which included painting, on a weekly basis. Mr. Rule was not called as a witness nor was there any evidence submitted that this weekly maintenance plan was unreasonable or not followed in this instance. Assuming, arguendo, the rear side of this marker was not properly painted or maintained as alleged, such is of no moment on these facts. Claimant testified he was looking ahead at the person he was chasing and not down toward the marker. Furthermore, the proof was ambiguous at best as to whether there was a sufficient light source to reflect off the rear portion of the marker even if it had been painted. (See, supra, p 5). As such, in this Court's view, any reflection or improved visibility (that would have been caused by the presence of reflective paint) would not have been noticed by Claimant in any event. Additionally, the blood stain observed by Officer Sadousky also supports the conclusion that Claimant struck his left knee on the front left side of the marker which, all agree, was painted. (Cl. Exs. 7B & 7C). In short, this Court cannot characterize these markers as being inherently dangerous or defective. Nor is there any evidence supporting Claimant's contention the State had actual or constructive notice of a dangerous or defective condition considering there were no prior accidents of the same or similar nature involving these markers in the 10 years they have existed at Wildwood.[5]

Rather, on these facts, this Court is convinced that Claimant's own reckless conduct was the sole proximate cause of his injuries. Claimant, even at the age of 13, must be charged with the knowledge of the inherent danger of running at full speed in the dark outdoors. (
Tarrazi v 2025 Richmond Ave. Assocs., 260 AD2d 468; Plate v City of Rochester, 217 AD2d 984, lv denied 87 NY2d 801; and Pizzola v State of New York, 130 AD2d 796). While the Court certainly has sympathy for the injuries suffered by Claimant, the inescapable conclusion on this record is that Claimant's own inattentiveness, or in the alternative lack of due care, while "running in the dark without a flashlight" was the sole proximate cause of his injuries.

For all of the foregoing reasons, the Claim is hereby DISMISSED. All other motions on which the Court previously reserved or which were not previously determined, are hereby denied.


ENTER JUDGMENT ACCORDINGLY.



April 3, 2000
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1] Unless otherwise specified, all quotations are from the Court's trial notes.
[2] The Court is mindful of the fact that Claimant's age may explain, in part, some of the inconsistencies, but the Court is still left with incompatible representations.
[3] Claimant contradicted himself during cross-examination indicating they used these markers to locate their campsite, but then later denied noticing any marker at all.
[4] A photograph appears to show the rear side of the subject marker unpainted with a greenish hue on the surface. (Cl. Ex. 7). The Court can only speculate that the greenish hue is moss.
[5]Two other slip and fall accidents did not involve these markers.