Affidavits (Copies) of Wendy L. Freeman, with Exhibit, Sarah Karkruff, with
Exhibit, Marissa Lee, with Exhibit, Nicole Lee, with Exhibit 7,8,9,10
Memorandum of Law (in Opposition) 11
Supplemental Attorney Affirmation, with Exhibits S-U 12
Defendant's Reply Memorandum of Law 13
Attorney's Affidavit 14
This claim seeks damages for the wrongful death and conscious pain and
suffering of claimant's decedent, Samantha Freeman, who died on June 4, 1997,
from a drowning incident in the Oswego Canal in the Village of Phoenix, Oswego
The accident forming the basis of this claim occurred on June 3, 1997, at
approximately 6:40 p.m. At that time, Samantha Freeman, 12 years of age,
was riding her bicycle in a parking lot adjacent to the Oswego Canal in the
Village of Phoenix. This parking lot was located just south of a laundromat
business. Both the parking lot and laundromat were privately owned. Located
immediately to the south of the parking lot is a small village park known as
Henley Park. The Oswego Canal is located immediately to the west of both Henley
Park and the privately owned parking lot. The accident occurred just south of
Lock 0-1 in the village, where an approach wall has been constructed on the
easterly side of the canal, which is used as a stopping area for boaters
traveling the canal.
Immediately to the west of the paved portion of the parking lot is a grassy
slope approximately 12 to 15 feet in width, which slopes down to the easterly
wall of the Oswego Canal. Approximately 5.6 feet of this grassy area is owned
by the individual who owns the laundromat and parking lot, while the remainder
is part of the canal's right-of-way.
The accident occurred when Samantha lost control of her bicycle while on the
property of the private landowner, at a point on the westerly edge of the paved
parking lot where it meets the grassy slope. Samantha was unable to stop or
regain control of her bicycle and continued down the slope into the canal.
Emergency personnel arrived shortly after the accident and recovered Samantha
from the canal. Tragically, however, Samantha died the following day from her
The accident was witnessed by three young girls, Nicole E. Lee, Marissa A. Lee,
and Sarah J. Karkruff, as well as by James Maryinuk, a lock tender and employee
of the Canal Corporation.
As the basis for liability in this claim, claimant alleges that the steep
adjacent slope to the canal was a hazardous condition created by the State, and
that the State had a duty to either reduce the degree of the slope or erect some
sort of barrier to prevent accidents such as this. Claimant further contends
that this accident was foreseeable due to the location of the nearby park and
surrounding areas which were frequented by children, especially during the
As the basis for its summary judgment motion, however, the State contends that
it did not have a duty to warn the decedent, since the location of the canal, as
well as the slope leading down to it, was an open and obvious condition, which
any ordinary person could comprehend through the reasonable use of his or her
senses. As a result, the State contends that it did not have any duty to erect
a fence or other barrier along the canal right-of-way. Furthermore, the State
also contends that since the hazard which initially caused decedent to lose
control of her bicycle was located on the property of the private landowner, it
has no responsibility for any hazard which does not occur on its property. The
State also contends that it is immune from liability pursuant to the provisions
of General Obligations Law, § 9-103, which provides statutory immunity to
landowners against lawsuits by claimants engaged in certain enumerated
activities, including bicycle riding.
Summary judgment is the procedural equivalent of a trial (Andre v
Pomeroy, 35 NY2d 361) and should be granted only when it has been
established that there is no triable issue (Moskowitz v Garlock, 23 AD2d
943). The role of the Court, therefore, on a motion for summary judgment is not
to resolve material issues of fact, but instead is to determine whether any such
issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).
If such material issues of fact exist, the motion for summary judgment must be
denied (Rotuba Extruders v Ceppos, 46 NY2d 223).
In this case, there does not appear to be any material questions of fact as to
how this accident occurred. Claimant does not dispute the fact that her daughter
initially lost control of her bicycle while on private property, and then still
out of control, proceeded down the slope, onto State property and into the
Even so, there still exists substantial questions as to the extent of the
State's duty in this matter.
For example, even though the State may not be liable for a hazard which exists
on private property, claimant contends that the bulk of the grassy slope was
located on the State's property, and that it also constituted a hazard,
contributing to the accident and tragic death of Samantha.
Additionally, even though the State contends that it did not have a legal duty
to warn, because of the open and obvious nature of the canal, claimant contends
that under the circumstances of this claim, (because of the close proximity of
the Henley Park to the canal, a fact of which the State had actual notice), a
duty of reasonable protection was created.
Additionally, in her opposition to this motion, claimant has submitted an
affidavit from her expert, James Napoleon, a licensed engineer, raising the
question as to whether the State breached its duty to maintain its property in a
reasonably safe condition.
This Court is therefore of the opinion that claimant has raised sufficient
issues, which have not been fully explored herein, which preclude a grant of
summary judgment. Claimant should be given a full and fair opportunity to
develop these issues at a trial on the merits.
Finally, with regard to the issue of the immunity provided by General
Obligations Law, § 9-103, this Court is not convinced that such
immunity is applicable to the factual situation presented herein. However,
since summary judgment has been denied to defendant and this claim has been
maintained, defendant should also be given the opportunity to further pursue
this defense, as well. Accordingly, for the reasons set forth herein, it
ORDERED, that Motion No. M-64614 is hereby DENIED.