New York State Court of Claims

New York State Court of Claims

SACHS v. THE STATE OF NEW YORK, #2002-015-553, Claim No. 101119


State park patron at evening concert fell into animal hole on property. Court found State had no actual or constructive notice of the dangerous condition. Land owner's duty satisfied by regular systematic examination of the site.

Case Information

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:
E. Stewart Jones Law Firm, PLLCBy: David J. Taffany, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 10, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim which alleges the claimant[1]
was injured while attending a concert held at the Clermont State Historic Site in Germantown, New York on the evening of July 31, 1999 was bifurcated and the decision herein addresses only the issue of liability.
The claimant testified on his own behalf and related that on Saturday, July 31, 1999 he attended the Heritage Blues Festival together with his wife Germana and a companion Guy Alix. According to the claimant he left his home in Copake, New York together with his wife and Mr. Alix and traveled to the Clermont historic site arriving at approximately 9:30 p.m. Claimant had purchased tickets to a blues festival to be held on the grounds and upon arriving at the site parked his vehicle and walked approximately 250 yards from the parking lot to the stage area. Claimant was wearing penny loafers and although it was dark when he arrived the parking area was lighted and additional lighting was provided by vendors' tents and booths set up around the perimeter of the parking lot.

The stage for the blues festival had been constructed in what is known as the "sheepfold" area of the Clermont historic site. Approximately one hour after arriving at the stage area the claimant asked for and received directions to the rest room from an acquaintance and began walking in a southerly direction to the rest room area which was located in the bathhouse near the parking lot. Claimant testified that the area where the concert was held was lit only by stage lights and that as he walked toward the rest room building he traveled up an incline and stepped into what he described as a "deep hole" injuring his left leg. Claimant testified that he did not observe the hole prior to the incident and that as he traveled up the incline he was looking up toward the parking area and the area where the rest rooms were located. Following the incident the claimant explained that he "hobbled" up the incline to the parking area where the vendors were located in order to inspect his injury.

At trial the claimant identified certain exhibits including photographs showing the general area where the hole was located and through which claimant was traveling at the time of his injury, the parking area, the bathhouse and the hole itself. The photographs show that the parking area was generally level and bordered on one side by a long equally level grassy area generally described at trial as a picnic area. The photographs depict a long sloping grassy area leading from the picnic area to the sheepfold where the concert was held. Claimant denied that he walked through the woods which line the long grassy slope as he traveled to the rest room. Finally, claimant testified that he was joined at the vendors' station by his wife and Mr. Alix and later driven to the hospital by his wife Germana.

On cross-examination the claimant testified that he had never been to the Clermont State Historic Site prior to July 31, 1999. He testified that it was dark at the time he entered the historic site and that he walked from the parking lot to the stage area without difficulty. The claimant agreed that the parking lot was illuminated when he arrived at the site by two floodlights mounted on a pole and that additional illumination was provided by various vendors located around the perimeter of the parking lot as well as a light mounted on the bathhouse in which the rest rooms were located. The witness agreed with his prior testimony at his examination before trial in which he indicated that he could see the bathhouse lights as he walked up the incline on his way to the rest rooms. Claimant then reviewed Exhibit 6, a photograph showing the hole he allegedly stepped into on the evening of July 31, 1999. Claimant confirmed that the photograph accurately depicted the hole as it existed on the night of the incident although he had previously stated in reviewing the photograph at his examination before trial that he did not believe the photo accurately represented the appearance of the hole on the night in question or "I wouldn't have stepped into it". Claimant related his conclusion that the hole was a "woodchuck hole" and testified that following the accident he walked up the incline to the closest vendor where he remained until he was interviewed by a park police officer. Claimant could not recall which vendor stand he had approached nor whether the stand was located on the eastern side of the parking lot or on the northern end substantially farther away from the area where his injury occurred. Nor did the claimant recall speaking to Mr. Bruce Naramore, a representative of Clermont State Historic Site. He did, however, recall being interviewed by a park police officer and admitted that he possessed a beer while speaking to the officer. Claimant testified that he was given the beer by the vendor subsequent to the accident.

On redirect examination the claimant presented testimony from his examination before trial in which he clarified that the hole shown in Exhibit 6 was, in fact, the hole he stepped into, that as he was walking from the stage to the bathhouse he was proceeding in a southeasterly direction and that the lights at the entrance to the bathhouse faced east towards the parking lot.

Guy Alix testified on behalf of the claimant who he described as a good friend and business associate. Mr. Alix stated that he was with the claimant and claimant's wife at Clermont State Historic Site on the evening of July 31, 1999. He testified that upon their arrival at the historic site they parked their vehicle and walked down the grassy slope to the stage area. After approximately one-half hour claimant left to go to the rest room and Mr. Alix was informed shortly thereafter that the claimant had injured his foot while stepping into a woodchuck hole. He testified that the only lights available in the sheepfold area were the orange, green and red lights at the stage area, that he was standing 20 to 30 yards from the stage while observing the concert and that it was dark where he was standing. On his way to the parking lot after being informed of claimant's injury Mr. Alix stated that he walked uphill to the parking lot and that the hill was unlighted.

On cross-examination the witness stated that he considers claimant a "good friend" and that he met the claimant earlier in the day at claimant's home and drove together with claimant and his wife to Clermont State Historic Site. Although he claimed that the parking lot was not lighted upon their arrival at the historic site he admitted that as he walked uphill towards the parking lot after being informed of claimant's injury he could see where he was going. While on his way to assist the claimant Mr. Alix testified that he turned left at the top of the incline and walked across the parking lot toward a pavilion located near the entrance to the historic site where he subsequently found the claimant sitting with his foot in a bucket filled with ice.

Claimant next called Mr. Bruce Naramore who is employed as the historic site manager at Clermont State Historic Site. Mr. Naramore related that the historic site is owned, operated and maintained by the New York State Office of Parks, Recreation and Historic Preservation. He described the Clermont State Historic Site as containing approximately 490 acres in July 1999, a large portion of which was heavily wooded and approximately 40 acres of which was devoted to grass or lawn areas. Mr. Naramore testified that in July 1999 the historic site employed four persons involved in grounds maintenance, two of whom were responsible for general grounds maintenance and two others who were primarily responsible for the formal gardens located at the site. Those persons involved in general ground maintenance were identified as Kathy Rosborough and Sara Widas. The witness testified that a blues festival was held at Clermont State Historic Site on July 31, 1999 and that tickets were sold for the event. The stage was located at the northern end of the "sheepfold" area with the audience located just south of the stage facing north. The blues festival was described as one of two special events held between January and July 31, 1999. The witness was aware that the blues festival would continue after dark and stated that although there was no permanent lighting in the sheepfold area ambient light was supplied by floodlights located on the eastern edge of the parking lot as well as lighting at the entrance to the bathhouse located on the west side of the parking lot facing east. The only lighting available in the sheepfold was from the stage lights as well as lamps used by persons camping near the sheepfold. Mr. Naramore testified that to travel from the sheepfold to the parking area it was necessary to walk in a generally southerly direction approximately 250-300 yards. He also stated that the grassy incline used to travel between the stage and the parking lot was not specifically lighted but was illuminated by ambient light from the permanent lighting in the parking lot and temporary lighting used by the vendors.

The witness testified that he has seen holes similar to that shown in Exhibit 7 on the grounds of the Clermont State Historic Site prior to July 31, 1999 and that he assumed the holes were created by digging animals such as woodchucks or skunks. He stated that he had directed his grounds maintenance staff to look out for and to fix holes while performing their tasks, especially prior to special events and particularly those special events held after sunset. The witness testified that several days prior to the blues festival the grounds maintenance staff filled several holes and low spots on the grounds although he was unsure exactly which areas had been filled. Finally, Mr. Naramore indicated that he had inspected the sheepfold and surrounding areas on the evening prior to the concert but that his inspection did not reveal the hole in which the claimant alleges he was injured.

On cross-examination the witness testified that although animal holes are occasionally discovered at the historic site it is not in his view a serious problem except at the formal gardens. He also testified that he did not receive any complaints concerning holes on the grounds on the evening of July 31, 1999 and confirmed that he did not discover any holes during his inspection the day prior to the event. He stated that he began working at Clermont State Historic Site in 1980 and that since that time and prior to July 31, 1999 no injuries had occurred due to holes in the lawn areas. Cross-examination concluded with the witness stating that the area where he found the claimant and spoke with him was not at the vendor closest to the area where claimant alleges he stepped in the hole and suffered his injuries. He also indicated that at the time he spoke to the claimant the claimant was not wearing shoes and that he did not observe any shoes in his vicinity.

Kathy Rosborough has been employed at Clermont State Historic Site as a grounds maintenance person since 1978. Her duties include general maintenance of the lawn area at the historic site and looking for and repairing holes dug by various animals on the grounds. The witness stated that she had seen animal holes in and around the lawn areas at the historic site over the course of her employment there and that it was her practice to check regularly for such holes especially in high use areas. Her regular hours during July of 1999 were from 7:30 a.m. to 4:00 p.m. and on July 31, 1999 she was working at the historic site from 7:30 a.m. to 1:30 a.m.

With regard to animal holes on the property, she testified that when they were discovered she would fill the holes with top soil and grade to ground level. The witness stated her opinion that animal holes were not a problem at the site and that although she had never seen an animal such as a skunk or woodchuck engaged in actually digging holes she would occasionally discover them and when discovered they would be filled and graded. The witness testified that she had filled two to three holes in the picnic area as shown on Exhibit HH (a diagram prepared by Bruce Naramore and received in evidence by stipulation of the parties) during the week prior to July 31, 1999.

On cross-examination Ms. Rosborough reviewed Exhibit HH and indicated that she had filled a hole in the area where the hole was shown on the diagram prior to July 31, 1999 and had recorded the work in a daily work log. The witness then examined Exhibit FF, an entry in her daily work log, and confirmed that she had filled a hole in the vicinity of the hole shown in Exhibit HH on Wednesday July 28, 1999. She stated that two to three holes would be discovered in and around the picnic area annually and that when discovered they would be filled in the manner related in her prior testimony.

Germana Sachs was the last witness to testify on behalf of the claimant. According to her testimony she, the claimant and Guy Alix arrived at the Clermont State Historic Site at approximately 9:30 p.m. on the evening of July 31, 1999. She testified that upon arrival the group parked their car in the parking lot which she described as "well lit" and proceeded down to the stage area. The witness related that some time thereafter she proceeded up the hill from the stage area in order to use the rest rooms located near the parking lot. On her way she noticed a hole in the general vicinity of the hole indicated on Exhibit HH. The witness marked on the Exhibit the path she followed from the stage area, up the hill to the rest room. She went on to indicate that as she walked she was looking down at the ground, noticed the hole and walked around it. When asked regarding the lighting conditions in the area between the stage area and the rest room Ms. Sachs replied that "[i]t was pretty dark. You just had to watch where you were going." The witness did not inform anyone affiliated with the park regarding the existence of the hole nor did she advise her husband of the hole when, upon her return to the stage area, he left the area to walk to the rest rooms. The witness was informed that her husband had been injured some time thereafter and walked to the parking lot where she found her husband sitting with his foot in a bucket filled with ice. Although the witness had indicated in her earlier testimony that she noticed and walked around the hole as she walked to the rest room area, when asked whether any lights illuminated the area where the hole was located she replied in the negative.

On cross-examination the witness reluctantly agreed that the area where the hole was located was sufficiently illuminated so that she could observe the hole and avoid it on her way to the rest room area.

At the conclusion of claimant's direct case the State moved to dismiss for failure to establish a prima facie case in that there was no proof of notice to the defendant. The Court reserved decision on the motion.

The defendant presented the testimony of Officer Heath Benansky who on July 31, 1999 was employed as a Park Police Patrolman and was on duty at the Clermont State Historic Site. Officer Benansky related that he was informed that evening by a vendor that a patron had been injured and that he responded to the location indicated where he found the claimant. According to Officer Benansky he observed upon his arrival that the claimant was not wearing shoes. The officer did not observe any shoes in the area around the claimant and recalled the claimant indicating to his wife that she should return to their blanket to get his shoes. The officer stated that the claimant was drinking a beer and smelled of alcohol. The officer testified that, as reflected in the incident report completed that evening (Exhibit CC), the claimant indicated that he was injured while walking up the hill behind the first tent located on the northwest corner of the parking lot, a wooded area not designated for pedestrian use. The witness indicated that when he inquired of the claimant regarding the location where he was injured the claimant turned and pointed to indicate his route to the area behind the first vendor's tent. The witness marked Exhibit W to indicate the location of the vendor's tent. Finally, the witness related that there were three to four vendors between the location where he found the claimant and the bathhouse building and that the parking lot was well lighted.

On cross-examination the witness indicated that upon his arrival he found the claimant in front of a beer vendor's tent sitting in a chair with his foot in a bucket filled with ice. He described the area where he found the claimant as approximately 25 yards away from the bathhouse.

On redirect the witness confirmed that there were several vendors between the bathhouse and the area where the claimant was seated.

It is established that the State as landowner has a duty to maintain its parks in a reasonably safe condition for use by the public (
Byrd v State of New York, 206 AD2d 449) and to take "reasonable precautions to prevent accidents which might foreseeably occur as the result of dangerous terrain on its property" (Walter v State of New York, 185 AD2d 536, 538). It fulfills "its duty to maintain the park in a safe condition by conducting daily inspections and correcting defects as soon as possible if not immediately" (Byrd v State of New York, supra, at 450). The State is not required to correct every defect in an area designated for recreational activities (see, Drew v State of New York, 146 AD2d 847) and the mere fact that the public has been invited to a State park "does not make the State an insurer, liable for every injury no matter the nature of the hazard or how long it has been in place" (Preston v State of New York, 59 NY2d 997, 999).
At trial the Site Manager, Bruce Naramore, testified that he inspected the area where claimant fell on the evening prior to the concert. No animal holes were detected by him at that time. Mr. Naramore also testified that there were no holes reported following his last inspection of the grounds prior to the concert and that no complaints or reports of a dangerous condition in the area of claimant's fall were received prior to the accident. He further stated that from the time he began working at the site in 1980 to the date of claimant's accident no injures were reported due to holes in the lawn area of the site.

The evidence further demonstrates that the State made reasonable efforts to maintain the area free from obstructions and hazards such as animal holes. It instructed its employees to be on the lookout for and to report the existence of such dangerous conditions so that they could be promptly remedied (
see, McMullen v State of New York, 199 AD2d 603, lv denied 83 NY2d 753). In fact, after examining her daily work log (Exhibit FF), Kathy Rosborough testified that she filled a hole in the vicinity of the hole shown on the diagram of the grounds (Exhibit HH) on July 28, 1999, three days prior to the concert. The Court finds such efforts by the State to be sufficient to satisfy its duty to maintain the site in a reasonably safe condition for public use.
Furthermore, the State cannot be held liable for injuries absent evidence demonstrating that notice of the alleged defective condition, not caused or created by the State, had been conveyed to its representatives or that the condition was visible and apparent and existed for such a period of time that, in the exercise of reasonable care, it should have been discovered and remedied (
Gordon v American Museum of Natural History, 67 NY2d 836, 837; McMullen v State of New York, supra).
Here the exact origin and duration of existence of the particular hole at issue is uncertain (
see, Tripoli v State of New York, 72 AD2d 823). What is clear, however, is that the hole was not detected during site manager Bruce Naramore's inspection of the grounds on July 30, 1999. Nor was there any proof at trial tending to establish that the existence of the hole had been reported to any employee or agent of the State prior to the claimant's accident.
Claimants' attorney argued in his post-trial brief that since the defendant had actual knowledge of the tendency of a particular dangerous condition to reoccur (i.e., animals burrowing or digging on site ) it should be charged with constructive notice of each specific recurrence of the condition citing
Kivlan v Dake Bros., 255 AD2d 782 [motor oil on sidewalk]; Reilly v Long Is. R.R., 275 AD2d 767 [broken glass at train station]; and Lowe v Spada, 282 AD2d 815 [puddle of water on rest room floor]. These cases are not only distinguishable on their facts from the naturally recurring animal holes at issue here but also require a finding that the dangerous or unsafe condition herein complained of "regularly went unaddressed" (see, Kivlan v Dake Bros., supra at 783; Lowe v Spada, supra at 816; see also Weisenthal v Pickman, 153 AD2d 849, 850 on which Reilly v Long Is. R.R., supra was, in relevant part, based). Two of the defendant's witnesses testified that grounds inspections of this rural historic site occurred on a regular basis and that animal holes revealed by such inspections were filled as soon as possible following discovery. Mr. Naramore testified that grounds maintenance personnel were instructed to look for and repair holes and, in fact, Kathy Rosborough filled several holes on July 28, 1999. In addition, Mr. Naramore inspected the premises on July 30, 1999 and did not discover any animal holes. Upon this record the Court cannot find that even if viewed as a recurring unsafe condition animal holes "regularly went unaddressed" at the Clermont State Historic Site (see, O'Connor-Miele v Barhite & Holzinger, 234 AD2d 106, Mercer v City of New York, 223 AD2d 688, 689-690, affd 88 NY2d 955). Absent such a finding constructive notice of the condition will not be imputed to the defendant. The absence of notice in either of its legally recognized forms precludes a finding of liability (see, Albano v City of New York, 250 AD2d 555).
The same may be said for claimant's allegation that lighting in the area was inadequate. "It is well established that a landowner has ‘no duty to warn against a condition that can be readily observed by the reasonable use of the senses. The situation is then a warning in itself' (
citations omitted)" (Tarrazi v 2025 Richmond Ave. Assocs., 260 AD2d 468, 469). "[D]arkness dictates an increased level of awareness of one's surrounding quite apart from whether or not there is a hazard in one's path" (Bradt v State of New York, Ct Cl, May 5, 2000 [Claim No. 97717] Hanifin, J., unreported). It has long been held that "when a lack of lighting renders ineffective the use of one's eyesight as to the condition of the route upon which he is traversing, ordinary prudence requires that he refrain from proceeding further without first ascertaining if he may safely proceed" (Halstead v Kennedy Valve Mfg. Co., 36 AD2d 1005, 1007).
"It is basic that one alleging inadequate lighting must show a breach of a duty of reasonable care and that such breach was the proximate cause of the injuries" (
Christoforou v Lown, 120 AD2d 387, 391). As in Christoforou, the claimant herein offered only his own testimony and that of his wife that the lighting in the area was inadequate. No objective proof was submitted from which the Court could conclude that there was an absence of due care on the part of the defendant (see, Christoforou v Lown, supra). Claimants' failure to establish a causal relationship between the allegedly inadequate lighting and the happening of the accident is fatal to this theory of recovery (see, Schmidt v Barstow Assoc., 276 AD2d 784; Reagan v Saratoga Hotel Corp., 23 AD2d 642 affd 18 NY2D 661; Gordon v New York City Tr. Auth. 267 AD2d 201; Merino v New York City Tr. Auth., 218 AD2d 451).
Moreover, claimant's wife testified on direct examination that she had traveled to the rest rooms from the stage area without incident prior to her husband's accident and admitted that although the area was "pretty dark" she was able to observe the hole and avoid it. Obviously, she did not consider the hole noteworthy enough to warn her husband about it or the danger it posed. In fact, with reference to the lighting in the area she testified that "[y]ou just had to watch where you were going."

Germana Sachs' testimony coupled with the lack of other evidence tending to establish that the lighting conditions at the accident site were a substantial factor in causing the claimant's injuries cause the Court to reject this theory of liability in this case. The testimony of Mrs. Sachs together with Mr. Sachs' statement that he was looking up at the parking area and not at the path upon which he was walking leads the Court to conclude that the hole was not a trap or hidden hazard and that claimant's accident was caused by his own inattentiveness (
Martinez v Trustees of Columbia Univ. in City of N.Y., 271 AD2d 223).
The defendant's trial motion to dismiss is denied and, upon the proof presented, the claim is dismissed.

Let judgment be entered accordingly.

June 10, 2002
Saratoga Springs, New York

Judge of the Court of Claims

[1]Germana Sachs' claim is derivative only and references to claimant in the singular are deemed to refer to Paul D. Sachs.