This claim was brought on behalf of Dixie
an infant, by her mother, Vicki Fitzpatrick and on behalf of Ms. Fitzpatrick
individually. Claimant was injured when she fell off a "horizontal
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
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
Mr. Buyce, an employee of the New York State Department of Environmental
Conservation, completed an accident report which was admitted into evidence as
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
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
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
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
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
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
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
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
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
, 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
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.