The running track encircles the football field.
According to the park's maintenance supervisor, Prince Stanley, the track is a
thin, rubberized surface laid on top of twelve to eighteen inches of concrete.
A number of expansion joints were part of the original construction and as thick
as the underlying concrete; however, Stanley testified that the surface of the
track was subject to buckling. In January of 1995, a perpendicular cut was
made across the surface of the track, which became the spot where claimant
alleges he fell. See the photograph that is claimant's exhibit one. This cut
was right over one of the track's three expansion joints; there would be a total
of six cuts. Stanley explained that cuts were made to combat the buckling,
which he viewed as dangerous and about which verbal complaints had been
received. This remedy was not based on any formal
When this cut was made, a "backing rod," a foam rubber strip about one- half
inch in diameter, was placed in it by Stanley. The
cut is affected by the seasonal variations in temperature, becoming wider in the
cold weather. At its widest, Stanley described the cut as a one- inch incision
in the surface of the track. Cabrera, for his part, testified the cut was wider
than one inch, but less than two inches. Marizan stated it was between one and
one-half and two inches. Claimant's mother took a photograph one week after the
accident in early February (cl exh 1), but supplied no measurements. What the
photo does show is that the cut is narrower than the white lines separating the
That an injury occurred on its premises does not necessarily make the defendant
liable; the State is not an insurer.
Mochen v State of New York
, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977).
The issue in a trip and fall injury due, for example, to a pavement defect or
the presence of debris, typically turns on whether actual or constructive notice
obtains, and if the latter, just what kind of notice is sufficient. Bernard
, 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996). But at
the threshold, the condition must be an unsafe or dangerous one. Madrid v
City of New York
, 42 NY2d 1039, 399 NYS2d 205 (1977); PJI
The cut intended to eliminate the buckling did not constitute a dangerous
condition. This is so with or without a backing rod, although with that said, no
credible evidence was adduced as to its absence. Claimant never mentioned it,
and Marizan's responses on direct examination were too pat and programmed to be
credible. Furthermore, Stanley observed that three or four million people
annually use Riverbank State Park, and he had never heard of another injury
occurring in the way Cabrera alleges his did.
Nor did we receive any evidence that the use, arrangement or size of the cut(s)
across the track surface was a departure from good and proper design or
engineering maintenance standards. Claimant did not call an expert to the
witness stand. See,
, Warech v Trustees of Columbia University
, 203 AD2d 53, 610
NYS2d 480 (1st Dept 1994) on the necessity of expert testimony in order to prove
that a sports facility is unsafe.
Even were such track surface to be determined an unsafe condition, claimant has
at least one and possibly two additional problems in proving his case.
The cut was open and obvious and could be readily observed by the reasonable use
of claimant's senses. Sammis v Nassau/Suffolk Football League
264 AD2d 413, 693 NYS2d 237 (2d Dept 1999); Green v City of New York
AD2d 385, 693 NYS2d 43 (1st Dept 1999). In that regard, Cabrera testified that
he had "seen it many times... a lot more than ten probably."
At trial, claimant raised the issue of poor lighting, but no credible evidence
was submitted on this issue.
Tower lights directly encircling the track were only used for sanctioned events
so as to minimize the effect on the neighborhood, inasmuch as Riverbank State
Park was open until 11 p.m. Nonetheless, Stanley pointed out that a light was
within ten feet of the place in question, and there was a nearby "pedestrian
walkway...[with] lights all along the walkway." His own office was close to the
track and faced it so that he could have seen if any bulb was burned out. The
lights were on timers. In view of the foregoing, it is unnecessary to consider
claimant's submission of a document to show that the sun set at 5:12 p.m. on
January 31, 1997. It might be noted that this document was first presented in
his post-trial brief, assumed no period of twilight, and accepted the time of
the fall as given by claimant and his witness.
Secondly, doubt exists that the accident happened the way Mr. Cabrera contended
it did. After all,
claimant spent five or six hours playing basketball and football that day. He
was vague on the specifics of how he tripped on a crevice narrower than the
lines dividing the running lanes of a track while wearing sneakers with a flat
rubber sole. In fact, Cabrera did not personally file an accident report that
day. When one was finally submitted, a month had passed and it was filled out
by his friend Marizan. Even then, the report was sketchy and made no mention of
the cut across the running track: "When we finished playing we were about to go
home. We [were] walking on the track and he fell. I grabbed him and I pulled
him up and took him home" (def exh A).
In view of the foregoing, Jeordy Cabrera has failed to prove his case by a fair
preponderance of the credible evidence, and his claim is
. All motions not previously ruled upon are deemed
LET JUDGMENT BE ENTERED ACCORDINGLY