New York State Court of Claims

New York State Court of Claims

STOCKWELL v. STATE OF NEW YORK, #2001-018-062, Claim No. 99052


Synopsis


Claimants failed to prove that State was negligent and such negligence was the proximate cause of infant Claimant's injury when she fell off "monkey bars" in a State Park. Claim dismissed.

Case Information

UID:
2001-018-062
Claimant(s):
DIXIE STOCKWELL, An Infant by her Mother and Natural Guardian, VICKI FITZPATRICK, and VICKI FITZPATRICK, Individually
Claimant short name:
STOCKWELL
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99052
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
FINKELSTEIN, LEVINE, GITTELSOHN & PARTNERSBy: DAVID J. POLLOCK, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: ED J. THOMPSON, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 8, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This claim was brought on behalf of Dixie Stockwell,[1]
an infant, by her mother, Vicki Fitzpatrick and on behalf of Ms. Fitzpatrick individually. Claimant was injured when she fell off a "horizontal ladder"[2] at Northampton Campsites on September 14, 1997. She was five years old at the time. The trial was bifurcated and this decision is on liability only.
Prior to the trial, issues arose regarding the timeliness of expert disclosure. The Court held a pre-trial conference via telephone on June 26, 2000 to resolve Defendant's objection to the timeliness of Claimants' expert disclosure. Although the expert had been retained more than a year before the trial date, disclosure pursuant to CPLR §3101(d) was not made until 30 days before the trial. The Court directed that the State would have an opportunity to retain an expert and the proof at trial would remain open to allow the expert to testify at a later date. At the close of Claimants' proof, the Assistant Attorney General chose not to utilize the services of an expert witness.

The facts are not in dispute. Claimant and her mother, father, Wyatt Stockwell, and brother, Dylan, went to Northampton Campsites, a State run facility, on the afternoon of the accident. After walking along the beach, Mr. Stockwell drove to a store for snacks, Ms. Fitzpatrick started a small fire in the fireplace, and the children were allowed to play on the playground nearby. When Mr. Stockwell returned, he saw Claimant on a platform on the playground waving to him. He and Ms. Fitzpatrick spoke briefly and she gave Dylan a snack. Moments later Dylan said something was wrong with Claimant, and Claimant came walking off the playground looking "funny"[3]
and holding her arm. Claimant told her parents that she fell off the monkey bars. When attempting to ascertain the extent of the injury, Ms. Fitzpatrick lifted Claimant's arm which flopped into an unnatural position. Ms. Fitzpatrick held Claimant on her lap and tried to keep her arm stationary while Mr. Stockwell sought assistance. The medical personnel arrived within a few minutes as did the supervisor of the campground, Bradford Buyce.
Mr. Buyce, an employee of the New York State Department of Environmental Conservation, completed an accident report which was admitted into evidence as Exhibit 8.[4]
He testified that before the opening of the park each season, and on a regular basis after that, the sand ground cover underneath the playground equipment was raked and fluffed to keep the area safe and to provide a cushion for the children using the equipment. Mr. Buyce would inspect the playground daily and a written inspection report was completed on a weekly basis. He inspected the playground and had raked out the sand the same week of the Claimant's accident. He did not have a specific depth to which the sand gets raked; it was a matter of judgment.
Mr. Buyce was never informed of any safety standards or recommendations regarding either the height of playground equipment or ground cover by the State, nor was he sent for training in playground safety. On or about June 9, 1996, Mr. Buyce included in his weekly report a request for signs requesting parental supervision of children using the playground. They were never installed.

In anticipation of the Claimants' expert's testimony, Mr. Buyce was allowed to testify that the playground equipment and ground cover had not been changed from the date of the accident until May 4, 1998, the date of the expert's inspection.

The park has over 100,000 people using it each year. In 1997 approximately 109,000 patrons were in the park.

The playground equipment was installed in the late 1960's or early 1970's. Mr. Buyce did not know who manufactured or installed the equipment.

John Morrison was called as a witness by the Claimants. He is a Department of Environmental Conservation (hereinafter DEC), Conservation Operations Supervisor, directly supervising Mr. Buyce. Mr. Morrison testified that sand had been brought in to supplement the natural sand that was the ground cover for the playground area at Northampton Beach but he did not know when this occurred. He also knew that the State had guidelines for playground safety standards but could not recall when he first learned of them. He testified that he was aware that children had fallen from playground apparatus and been injured prior to September 1997, but no specifics were elicited.

Mr. Morrison also stated that the guidelines he set forth for the playground sand were to rake it daily to fluff it and to remove any sharp objects that may have been left there during the night hours. The raking would be three-to-four inches deep. To his recollection, the playground apparatus was installed in the late 1960's or early 1970's.

The Claimants' expert, Ernest J. Gailor, a civil and environmental engineer, who has designed municipal playgrounds, testified that in 1996 he attended classes presented by New York State Department of Parks and Recreation at which they handed out the Handbook for Public Playground Safety (hereinafter Handbook) compiled by the U.S. Consumer Product Safety Commission.[5]
This Handbook and the American Society for Testing and Materials (hereinafter ASTM) standards set forth recommendations regarding playground equipment and ground cover and are the generally accepted standards in the engineering community for playground safety.
Mr. Gailor inspected the playground on May 4, 1998. He measured the relevant heights in accordance with the Handbook; the platform from which Claimant was reaching to the first rung of the horizontal ladder was 63 inches, the rung of the ladder was 102 inches off the ground surface. The recommended height pursuant to the American Society for Testing and Materials (adopted by the American National Standard Institute)
of a step-off platform for children ages 5 to 12 is 48 inches while the maximum height of the ladder rung is 84 inches. These are acceptable only with the best ground surface available.
The ground cover used underneath playground equipment is assigned in the Handbook a critical height. The critical height is determined by the velocity and impact force an object would have on the surface. "Critical Height, therefore, can be considered as an approximation of the maximum fall height from which a life-threatening head injury would not be expected to occur."[6]
Mr. Gailor found the surface at Northampton to be 9 to 12 inches of compressed sand. Based upon the Handbook, the critical height for 9 inches of compressed sand would be 4 feet (48 inches). According to the Handbook, wood mulch or bark mulch at a depth of 9 inches would allow a critical height of 10 feet. Because of the height of the equipment at this playground, coarse sand, even uncompressed, would not be considered an appropriate ground cover pursuant to the Handbook.
Mr. Gailor opined that the playground did not meet accepted safety standards for public playgrounds. He concluded that the heights were excessive. The sand was compacted and too hard; the surface was unsafe and inadequate. There were no warnings posted regarding age appropriateness for the equipment, critical height information, or possible problems with the surface. It is standard to label equipment for age appropriateness. In Mr. Gailor's opinion, the excessive height of the equipment and the inadequate ground cover were significant factors in causing Claimant's injury.

On cross-examination, Mr. Gailor testified that the Handbook was created in 1981 and the ASTM standards were promulgated in 1993; there were no standards that pre-dated these publications. There were virtually no safety standards for playground equipment, ground cover, or heights when this playground was installed. The standards that exist now are voluntary; only recommendations.

The claimant, Dixie Stockwell, took the stand and the Court was satisfied that she was competent to testify. She said she grabbed the top rung of the monkey bars and was swinging so hard she could not hold on. She fell and hurt her arm.

The theory of liability Claimants proffer is that the ground surface under the monkey bars was a dangerous condition of which the defendant had notice because Defendant had adopted the Handbook for Public Playground Safety prior to the Claimant's accident. In the Handbook, there are recommendations for the types of ground cover (sand, bark, etc.) to be used, as well as how deep the various types of ground cover should be to avoid serious head injuries in the event of a fall, and Mr. Gailor discussed these matters in detail. The Claimants urge the Court to find that the State has an obligation to assess the safety aspect of the ground cover since the State adopted the Handbook and then modify the ground cover in their public playgrounds to meet the Handbook recommendations. The argument is that the recommendations and findings contained in the Handbook should have put the State on notice that the ground cover was inadequate for the height of the apparatus; specifically the monkey bars.

There is no requirement for the State to conform to the recommendations contained in the Handbook for Public Playground Safety (
McCarthy v State of New York, 167 AD2d 516); therefore, any deviation from the standards set forth therein does not establish negligence on the part of the State. The State does have the obligation to maintain their playgrounds in a reasonably safe condition (Preston v State of New York, 59 NY2d 997) The State is not an insurer, and the fact that one is injured on the State's property does not, standing alone, support a finding of liability. (Frontz v State of New York, 147 AD2d 854) To establish liability, a claimant must prove that the State knew or should have known that a dangerous condition existed and failed to repair it in a timely fashion. (Herman v State of New York, 63 NY2d 822) In this matter, the claimants have failed to prove actual or constructive notice. There was no evidence of an inordinate number of injuries on this playground caused by the sand not being deep enough; in fact, despite the significant number of park visitors, there was no evidence of prior injuries caused by the ground cover or lack thereof. Mr. Buyce testified to the maintenance of the playground sand indicating the sand was raked at least weekly to fluff it. Mr. Morrison said he was aware of injuries to children as a result of falling off the playground apparatus before 1997, but no further information was elicited regarding these incidents to show a similarity to this accident which could have supported a finding of notice of a dangerous condition.
Claimants have failed to meet the burden of proving that the State was negligent and that such negligence was the proximate cause of Claimant's injury. The claim is hereby DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

February 8, 2001
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims



[1] "Claimant" will refer to Dixie Stockwell unless otherwise specified.
[2] The term of art for the piece of equipment, however, during testimony it was also referred to as "monkey bars."
[3]All quotes are from the trial transcript or the Court's trial notes unless otherwise specified.
[4] Mr. Buyce testified that Ms. Fitzpatrick told him she was at the beach when Claimant was injured and that's what he entered on the accident report. Ms. Fitzpatrick testified that she may have told him they were at the beach earlier in the day but she was in the vicinity of the playground when the accident occurred. There were also minor discrepancies regarding where the claimant fell. The Court finds that the entry on the accident report is in error and that Claimant's mother was not at the beach when Claimant was injured and that the claimant fell while attempting to negotiate the horizontal ladder.
[5] Exhibit 10.
[6] See Exhibit 10.