New York State Court of Claims

New York State Court of Claims

FREEMAN v. THE STATE OF NEW YORK, #2002-009-46, Claim No. 98967, Motion No. M-64614


Defendant's motion for summary judgment dismissing the claim was denied, in that the Court found material questions of fact regarding the State's duty in this matter.

Case Information

WENDY L. FREEMAN, Individually and as Administratrix of the Estate of SAMANTHA J. FREEMAN, Deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
BY: Matthew E. Whritenour, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order granting it summary judgment dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Attorney Affirmation in Support, Affidavit of John E. Zmarthie, P.E., with Exhibits A-R 1,2,3

Defendant's Memorandum of Law 4

Attorney's Affidavit (in Opposition), with Exhibits A-P 5

Affidavit of James Napoleon, P.E., with Exhibits A-B 6

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 County.

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 injuries.

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 summer months.

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 canal.

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 is

ORDERED, that Motion No. M-64614 is hereby DENIED.

September 30, 2002
Syracuse, New York

Judge of the Court of Claims