TRADER v. THE STATE OF NEW YORK, #2002-005-014, Claim No. 89885
negligence claim is dismissed
IN THE MATTER OF THE CLAIM OF KATHLEEN TRADER, INDIVIDUALLY, AND KATHLEEN TRADER AS ADMINISTRATOR OF THE ESTATE OF RUSSELL DOUGLAS HENNING, DECEASED
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
DONALD J. CORBETT, JR.
Collins, Collins & Maxwell, LLPBy: Alan D. Voos, Esq.
Eliot Spitzer, Attorney GeneralBy: James L. Gelormini, Assistant Attorney General
November 13, 2002
See also (multicaptioned
The Claim alleges that the decedent, Claimant's son, was a carnival worker on
July 15, 1993, who was standing on the roof of a concession
in Medina, New York, when he came in
contact with an overhead electrical power line, suffered an electrical shock,
and fell to the ground. Claimant's son died on September 1, 1993, at 24 years of
age, at the Erie County Medical Center, allegedly as a result of the injuries
sustained on July 15th.
On April 13, 1999, Claimant filed a Second Amended Claim in accordance with the
decision and order of the Appellate Division, Fourth Judicial Department, dated
March 19, 1999 (259 AD2d 951), which permitted Claimant to add a cause of action
against Defendant sounding in negligent training, supervision and education of
its employees. Defendant's answer to the Second Amended Claim was filed on June
Subsequently, Defendant moved for summary judgment dismissing the claim in its
entirety. By my Decision and Order dated February 2, 2000 (Motion No. M-59730),
I granted Defendant's motion insofar as dismissing Claimant's cause of action
sounding in premises liability, denied Defendant's motion to dismiss the cause
of action sounding in negligent training, supervision and education, and
reserved decision with respect to the motion to dismiss the cause of action
sounding in negligent inspection, so that I could hear evidence regarding the
nature of the actions of the Defendant's inspector in order to ascertain whether
they involved discretionary or ministerial acts.
On appeal, the Fourth Department modified my Decision and Order by granting
that part of Defendant's motion which sought summary judgment dismissing the
cause of action sounding in negligent training, supervision and education
(Matter of Trader v State of New York, 277 AD2d 978). As a result, the
only remaining cause of action sounds in negligent inspection, for which I had
previously reserved decision. This remaining cause of action proceeded to trial
with respect to the threshold issue of whether Defendant is entitled to absolute
On July 15, 1993, Claimant
was employed by
Empire Rides and Games (Empire), as "green help" to assist with the Medina Canal
Festival. "Green help" is the term given to a new person, someone who doesn't
know what he is doing and has to be taught how to do everything.
Claimant was assigned to the Fun House known as the "Space Wars" amusement.
This amusement was housed within a semi-trailer. In order to set up this
amusement, scenery for the sides folds out from the trailer, and scenery for the
top, the facade, folds up from the trailer. The words "SPACE" and "WARS" appear
on either side of the facade once it folds up. Behind every letter in the words
"SPACE" and "WARS" was metal tubing into which a flag on a pole could be
inserted. This metal tubing ran parallel to the ground.
The 1993 Canal Festival was the first time that Empire had been the ride vender
for this particular festival. Representatives of Empire and of Canal Festival,
Inc., the not-for-profit corporation which sponsored the festival, met to
discuss locations for the amusements. It was decided that an amusement should
be placed in front of the electrical substation owned by Niagara Mohawk Power
Company (NIMO) to visually block the substation. The Space Wars amusement was
selected to be located in front of this substation.
Placement of the Space Wars amusement proved to be problematic. Once the
scenery was unfolded, the amusement grew in dimension. The amusement had to be
positioned several times to accommodate its expanded size and to ensure enough
room to accommodate a slide from another amusement.
As finally positioned, power lines from the NIMO substation ran over the
southwest corner of the amusement. Each line, containing three conductors, ran
from the substation to a series of poles located near the canal. The poles were
at a greater height than the substation. As a result, the distance from the
ground to the wires increased as the lines proceeded from the substation, over
the corner of the amusement, and toward the poles.
The accident occurred on the first night of the Canal Festival. Christina S.
Porn (also known as Christina S. Lipp), an employee of Empire Rides and Games,
testified at her deposition that she had overheard some young boys discuss
trying to steal the black and white Batman flags which were on top of the facade
of the Space Wars amusement. After the festival closed down that night,
Claimant and Ms. Porn decided to remove the flags from the top of the facade of
the Space Wars amusement to protect them from theft. To accomplish this, Ms.
Porn and Claimant climbed on top of the trailer housing the Fun House. Ms. Porn
volunteered to remove the flag situated behind one of the letters in the word
"SPACE" because she noticed wires in the area and because Claimant had
previously injured his hand and was wearing a leather brace.
Claimant, who had never climbed on top of the Fun House trailer before, told
Ms. Porn, "Don't worry about it, I can handle it." Ms. Porn turned to walk
toward the other end of the trailer to remove the flag from behind the word
"WARS." She then turned back and observed Claimant climbing the facade to gain
access to the flag at the other end of the trailer. Ms. Porn then saw Claimant
on the facade, and saw the flag pulled out of its holder and tilted back.
Immediately thereafter she saw a large blue flash, and watched Claimant fall
from the facade to the top of the trailer, and then to the ground.
At the time of the accident, Daniel Hurley was employed by Niagara Mohawk Power
Corporation as a Supervisor of Transmission and Distribution. Mr. Hurley
testified at trial that he received a phone call at around 11:00 p.m. from
NIMO's trouble dispatcher advising him that an accident had occurred. He went
to the Canal Festival site and, after de-energizing and grounding the lines,
took photographs and measurements at the scene with the help of three other NIMO
Mr. Hurley climbed on top of the roof of the trailer housing the Fun House and
observed that two of the three conductors comprising electrical line 303 showed
evidence of burning and flashing as a result of an electrical arc and flash.
Based on his experience, Mr. Hurley concluded that this was where contact with
the conductors was made. He also observed pit and burn marks on the steel
support for the sign containing the word "SPACE." This physical evidence was
located on one of the square metal tubes, into which a flag could be inserted,
behind the letter "P."
Mr. Hurley concluded
that this physical evidence showed where Claimant made contact with the
Other NIMO employees took measurements and photographs that show a NIMO worker
in the bucket of a bucket truck holding in one hand a flag above the letter "S"
in the "SPACE" sign and holding a ruler in the other hand (Exhibits F and G).
All of the measurements taken that night were taken when the flag was in the
square metal tube or above the tube located behind the letter
Mr. Hurley testified that the distance between the top of the flagpole and the
north portion of electrical line 303 was measured at 33 inches, a measurement
taken from behind the letter "S" in the "SPACE"
Marc Scarr was a Safety and Health Inspector for the New York State Department
of Labor in July of 1993, and was responsible for inspecting carnivals and
amusement rides. On July 15, 1993, he went to Medina, New York, to inspect the
amusements set up for the Canal Festival. During his inspection of these
amusements, Mr. Scarr testified that he was mindful of 12 NYCRR Part 45, the
regulations governing Amusement Devices, Viewing Stands and Tents at Carnivals,
Fairs and Amusement Parks; of Labor Law §202-h (The High-Voltage Proximity
Act), and of 12 NYCRR Part 57, the regulations promulgated thereunder. His
inspection was conducted primarily for the safety of the public, and he did not
consciously conduct his inspection specifically for the safety of the people
erecting and disassembling the
Mr. Scarr testified that he inspected the "Space Wars" amusement twice during
the afternoon of July 15, 1993. During the initial inspection, he found two
violations: the first involving debris on the floor of the Fun House amusement,
and the second involving sharp edges inside the Fun House that had to be taped
over. Some two hours later, he reinspected the Fun House to determine if the
violations found earlier had been corrected.
Mr. Scarr testified that he observed that the trailer housing the Space Wars
amusement was situated north of a NIMO electrical substation. He further
observed electrical lines running from the substation over a corner of the
amusement. At the time of his inspections, Mr. Scarr was aware that Code Rule
57 (12 NYCRR part 57) prohibited high voltage proximity, defined as being within
ten feet of a high voltage line.
In order to determine if any part of the Fun House was within ten feet of the
electrical lines he observed, Mr. Scarr utilized a method of triangulation to
calculate distances, taking the distance from the trailer to the chain link
fence as one leg of his triangle, and the height of the trailer as a second leg
of his triangle. He changed his position several times in order to calculate
distances from the rear and from the sides of the trailer to the electrical
lines. He did not climb on top of the amusement to calculate the distance
between any part of the Fun House and the electric lines overhead. It was his
custom and practice, however, to climb up on top of an amusement and/or to call
the utility company (here NIMO) if he were unsure if a wire was too close to an
Mr. Scarr concluded that no part of the Fun House was situated within ten feet
of the overhead electrical wires. He could not recall, however, if the facade
was up or if any flags were mounted at the time he drew his conclusion. He was
aware that there was a facade that folded up and was also aware that flags were
sometimes displayed on the facade. Scarr had inspected this Fun House on
several occasions before July 15, 1993, and had seen it in many different
configurations. According to his testimony, he had observed the Fun House with
the facade up, without the facade, with flags, and without flags.
During his testimony, Mr. Scarr was shown photographs taken by NIMO
representatives during their inspection of the Fun House following the accident
(Exhibits F and G). He testified that these photographs showed a flag coming
off the corner of the letter "S" in the "SPACE" sign at an angle. He also noted
that he had never observed a flag at an angle to the letter "S" during any prior
inspections, as the flag was always perpendicular to the ground when he observed
As noted above, the only remaining cause of action is based on Claimant's
allegation that the State's inspector, Marc Scarr, negligently inspected the Fun
House known as the Space Wars amusement by failing to note the amusement's
dangerous proximity to high-powered lines in violation of statute (Labor Law
§202-h) and regulations (12 NYCRR Parts 57 and 45).
Initially, I must determine if Scarr's actions in inspecting the Space Wars
amusement and in concluding that no part of the amusement was within ten feet of
high voltage wires were discretionary or ministerial actions. If these actions
involved the exercise of discretion, reasoned judgment which could produce
different results, then they may not confer liability even if they were
performed negligently or maliciously. Conversely, if Scarr's actions were
exclusively ministerial, requiring adherence to a governing rule with a
compulsory result, then the governmental immunity shield is removed and
liability may be imposed (Lauer v City of New York, 95 NY2d 95, 99-100;
Tango v Tulevech, 61 NY2d 34,40-41).
In the post-trial brief, Claimant concedes that part of Mr. Scarr's duties
might involve the exercise of discretion. He argues, however, that the
situation presented was so obvious and so dangerous that Mr. Scarr had no
discretion in failing to act to alleviate it. In support, Claimant relies on
Runkel v City of New York, 282 App Div 173, 176, wherein the Appellate
An abandoned open structure which is so rotted and dilapidated that it is in
imminent danger of collapse may be said to constitute a trap or an
‘inherently dangerous' instrumentality. . . . Injury sustained by any
person . . . due to such an inherently dangerous instrumentality, may be said to
have been caused by the wanton or intentional or inhuman act of the one
responsible for its existence or its removal and will cast him in liability, . .
In Runkel, the city permitted the building to remain in its dilapidated
condition for some time before the accident occurred, in spite of its knowledge
of the condition of the building and in spite of the recommendation of its own
inspector that the building be repaired immediately or demolished. The city's
liability in Runkel for injuries sustained by young children playing in
the dilapidated building thus lay in its failure to immediately rectify the
danger of which it had actual notice.
Claimant argues that a similar situation exists herein and that the State, with
notice of an inherently dangerous instrumentality (live wires dangerously
proximate to an amusement device in violation of Labor Law §202-h and 12
NYCRR Part 57), had no discretion, but rather was obligated to immediately
remove the danger or be held liable. Claimant's argument presupposes that the
State had actual notice of the existence of an inherently dangerous situation.
In the present case, the State's inspector did not find a violation of the Labor
Law nor did he conclude that an inherently dangerous instrumentality existed at
the time of his inspections. Thus, liability may not be imposed on the State
for its failure to rectify a situation of which it had no notice, unlike the
circumstances in Runkel or in Lee Kin Chiu v City of New York, 174
Misc 2d 422, also cited by Claimant.
Moreover, I can not conclude on the evidence before me that the situation
presented to the State's inspector was so open and so obvious that any element
of discretion was removed, and that the State's inspector had to conclude that
the amusement presented an inherently dangerous situation due to its close
proximity to high powered wires. To the contrary, Mr. Scarr credibly testified
that he could not recall if the facade was up or if any flags were mounted at
the time of his inspections, and the Claimant offered no trial or deposition
testimony to establish otherwise. But even had the facade been up and the flags
mounted, I can not conclude that this situation would have presented such an
inherently dangerous situation so as to compel the State's inspector to demand
its correction immediately.
I make this finding with the awareness of the trial testimony of Daniel Hurley,
Supervisor of Transmission and Distribution for NIMO, and the purported
violation of the High-Voltage Proximity Act. His belief, however, was based on
measurements taken with the assistance of three other NIMO employees after the
high powered lines had been de-energized, and with the use of a bucket truck.
From this vantage point, the NIMO employees should have been able to take nearly
exact measurements. This advantage was not available to Mr. Scarr when he,
using the triangulation method, calculated the distance between the amusement
and the energized high voltage wires. Significantly there was no testimony
before me disputing the propriety of utilizing the triangulation method, let
alone ascribing negligence for having done so. Accordingly, the record does not
establish or imply any duty to utilize any particular method of
Moreover, Mr. Hurley testified at trial that the physical evidence on the
square metal brackets behind the letters in the word "SPACE" on top of the
facade indicated that the flagpole which Claimant was attempting to remove at
the time of the accident was mounted behind the letter "P," and not behind the
letter "S" which was utilized by NIMO employees in measuring the distance
between the flagpole and the electrical wires. Finally, Defendant argues that
the measurement taken by NIMO from the flagpole behind the letter "S" to the
electrical wire is suspect, because it appears from the NIMO photographs (1)
that this measurement was taken after the flag had been removed, (2) the
measurement was taken from the wrong bracket, and (3) the flag was slanted
backward in the direction of the electrical wire, thus compromising the accuracy
of the measurement.
But, even if it had been proven that the flag being removed at the time of the
incident was within close proximity to the high voltage wires at the time of the
inspections, this would not be sufficient to convert discretionary actions into
ministerial actions. The reason that sovereign immunity has been retained with
respect to discretionary, quasi-judicial actions of governmental employees, is
to permit them to act freely, in accordance with their best judgment, even if,
in retrospect, they may have made a wrong decision, Haddock v City of New
York, 75 NY2d 478. In the present case, Mr. Scarr utilized his best
judgment when he determined that the Fun House was not within close proximity to
the high powered wires, and he is entitled to governmental immunity even if his
decision in this regard was incorrect, Rottkamp v Young, 21 AD2d 373,
affd 15 NY2d 831.
Claimant also argues that the performance of an inspection to ensure the safety
of the Claimant, as opposed to the general public, was a ministerial act under
the Labor Law and its regulations which the State's inspector did not have the
discretion to fail to perform. In this regard, Claimant relies on cases wherein
the municipalities involved took no action, Corona v Gallinger Real Estate
Better Homes & Gardens, 168 Misc 2d 429, affd, 242 AD2d 961 (town
issued a certificate of occupancy without performing an inspection of the
premises) and Jones v City of Buffalo, 267 AD2d 1101 (city took no action
to determine if it should retain police officer after having notice that the
officer had been arrested for a violent act).
In the present case, Mr. Scarr made a reasoned determination that the amusement
was not within close proximity to the overhead high voltage wires. The mere
fact that he may not have had Claimant's decedent specifically in mind does not
negate the fact that an inspection was performed and a determination was made as
to the proximity to the wires. Thus, Claimant's argument that Mr. Scarr failed
to inspect the amusement for the benefit of Claimant, as opposed to the general
public, is without merit.
Based on the foregoing, I conclude that the action of the State's inspector in
inspecting the Fun House known as the Space Wars amusement was a discretionary
act for which he and the State of New York are entitled to absolute immunity.
Accordingly, I need not reach the special duty issue, Matter of Trader v
State of New York, supra, 277 AD2d 978; Lauer v City of New
York, 95 NY2d 95, supra, at 99. The claim is dismissed.
All motions heretofore undecided are now denied.
Let judgment be entered accordingly.
Rochester, New York
HON. DONALD J. CORBETT, JR.
Judge of the
Court of Claims
Evidence at trial established that the
Claimant's decedent was actually standing on the facade of a Fun House known as
the "Space Wars" amusement at the time of the accident.
For ease of reference, unless otherwise noted,
hereinafter Claimant shall mean the decedent Russell Douglas Henning.
Trial Transcript [TT], March 29, 2001, pp 40,
47 and 55-56.
TT, March 29, 2001, p 66.
TT, March 29, 2001, p 69.
TT, March 29, 2001, pp 168 - 169.