The trial of this claim involving a slip and fall which occurred at the Five
Rivers Environmental Education Center located in Delmar, New York was bifurcated
and the decision herein addresses solely the issue of liability.
Claimant Sharon Gioeni testified that on May 24, 1998 she, her sister
Antoinette Gioeni and Maurice Garvey, a family friend, decided to go to the
Five Rivers Environmental Education Center for a hike. Claimant had been at
the Center once before as a child and arrived there at 3:00 p.m. on a day which
she testified was sunny upon her arrival although it had rained earlier that
morning. Claimant was wearing penny loafers and she along with her companions
began to walk the Beaver Tree Trail which she described as a packed dirt trail
approximately three to four feet wide and covered with gravel and bark chips.
As the three walked the Beaver Tree Trail they approached a bridge which they
crossed in single file with Mr. Garvey in front followed by Antoinette Gioeni
and the claimant. As they neared the far end of the bridge Mr. Garvey proceeded
down a set of steps without incident followed by the claimant's sister. The
claimant testified that as she approached the end of the bridge she was holding
the handrail on the left side of the bridge and stepped down onto the first
step without incident. When she stepped onto the second step her foot slid, her
hand slipped off the handrail and she fell injuring her ankle. According to
the claimant the second step was not level but was slanted from right to left as
one looks back at the bridge.
Claimant identified certain photographs of the scene including Exhibit 1 which
shows the bridge as one approaches the far end and the steps in question.
Exhibit 2 is a photograph taken from Beaver Tree Trail looking back at the
steps. Exhibit 4 and 6 are photographs which show the steps at the end of the
bridge. Both photographs include a long, narrow piece of wood which has been
placed lengthwise across and on top of logs which project out from underneath
the first step on both the right and left side of the pathway. The photographs
show that the log on the right side is higher than that on the left and
testimony established that the log which would have formed the front portion of
the step and ran horizontally between the projecting logs or risers was missing
and had been removed at some point by facility staff. According to the
claimant, her sister and Mr. Garvey helped claimant to their car and drove her
to her home. Claimant later reported the fall by telephone to Mr. Craig
On cross-examination claimant acknowledged that it had rained on the morning of
May 24, 1998. She related that she had been invited to go to Five Rivers by her
sister and that she was aware that she was going to participate in a hike on a
nature trail. Claimant stated that she has been a sales assistant in the shoe
department at Filene's Department Store for the past seventeen years and that
she is knowledgeable regarding footwear. Despite her familiarity with footwear
generally and her understanding that she was going to hike upon a nature trail
claimant decided not to wear hiking boots but instead wore penny loafers on the
day of her accident.
Claimant described the Beaver Tree Trail as being damp and soggy in certain
areas and she reiterated her testimony on direct that she, her sister and Mr.
Garvey crossed the bridge in single file with Mr. Garvey in front followed by
Antoinette Gioeni and the claimant. Mr. Garvey was the first to walk down the
steps at the far end of the bridge which he did without incident. Claimant's
sister also walked down the steps without incident and neither Mr. Garvey nor
her sister warned the claimant of any danger or that the steps were slippery.
Claimant testified that she negotiated the first step without problem but that
she slipped as she stepped onto the second step which she described as
Antoinette Gioeni, claimant's sister, testified next on claimant's behalf.
With regard to the incident Ms. Gioeni testified that as she attempted to walk
down the steps at the far end of the Beaver Tree Trail bridge she felt that the
second step was slanted when she stepped onto it. She did not slip, however,
and proceeded down the second step and onto the trail. The witness did not see
claimant fall but heard her cry out. Ms. Gioeni turned and saw claimant on the
ground and walked to assist her. She testified that as she looked at the steps
from the far end of the bridge she noticed that the second step was "on a
slant". With regard to Exhibit 6 the witness testified that although the front
portion of the second step had been removed the piece of wood placed on the top
of and between the logs on the right and left sides of the photograph showed the
approximate angle or slope of the second step on the day of the accident.
Maurice Garvey testified that he has known claimant and her sister for thirty
years and had walked the trails at the Five Rivers Environmental Education
Center four to five times per week prior to May 24, 1998. According to Mr.
Garvey he negotiated both steps at the far end of the bridge without incident
and was facing away from the bridge when he heard the claimant call out. He
turned, saw the claimant on the ground and as he approached to render assistance
noticed that the step was slanted from right to left as you view the steps from
the far side of the bridge in the manner demonstrated by Exhibit 6.
Mr. Garvey admitted on cross-examination that he was familiar with the Beaver
Tree Trail and that he experienced no problems in walking down the steps and did
not warn claimant of any danger prior to her fall.
Claimant next presented the testimony of Craig Thompson, Director of the Five
Rivers Environmental Education Center. Mr. Thompson held the same position in
1998 and testified that he supervised a staff of ten to twelve persons including
one full-time maintenance person.
Mr. Thompson testified that the Five Rivers Environmental Education Center
includes approximately 10 miles of walkways or maintained areas and that public
use is anticipated. He estimated that three to four hundred people a day might
use the Beaver Tree Trail during the summer season. He stated that there were
no signs posted recommending the use of particular footwear and that it was
assumed people would dress appropriately for the conditions. He testified that
approximately 17,000 school children per year come to Five Rivers.
Mr. Thompson described the Beaver Tree Trail as approximately one-half mile
long and approximately four to five feet wide consisting of a clay base covered
in gravel and wood chips. In 1998 and prior thereto Center policy was for staff
to walk the trails at the Center on a weekly basis to look for health and safety
issues or other problems. If an unsafe condition were found staff were
responsible for reporting the condition to Mr. Thompson who would then direct
maintenance staff to repair the particular condition. This process was not
formalized and the reports of any unsafe condition were not made in written form
but were verbally communicated to Mr. Thompson who would then inform the
maintenance staff and direct that the condition be corrected. The witness
testified that he received a report concerning a fall on the steps of the Beaver
Tree Bridge in May of 1998 and that he went to the bridge to inspect the area.
According to Mr. Thompson when he viewed the steps he noticed that the step was
slanted from right to left as one looks back at the bridge. He described the
step as "not exactly on the bench level" but said that in his view it was
neither inappropriate for the rustic setting of the nature trail nor did it pose
a hazard to Center patrons. The witness testified that the steps were likely
even or level when built and that he assumed the step became uneven due to
frost heaving. Mr. Thompson stated that he had no way of determining how long
the condition might have existed.
On cross-examination the witness testified that the step in question was only
slightly slanted and that in his opinion the step was safe and acceptable. He
also stated that when he spoke to the claimant and received the report of her
injury on the steps the claimant said that she couldn't grab hold of the
handrail quickly enough to prevent her fall. Mr. Thompson stated that all
complaints regarding dangerous conditions would be brought to his attention,
that he met weekly with staff to review safety issues and that he reviewed
Center records and determined that there were no recorded prior accidents on
the steps of the Beaver Tree Trail bridge. He also testified that he was aware
of no prior complaints.
Mr. Thompson then reviewed Exhibits 4 and 6, photographs showing the steps at
the far end of the Beaver Tree Trail Bridge. He testified that the front
portion of the second step was missing in the photographs but that the missing
portion was merely cribbing which laid on the ground and not atop the risers as
portrayed by the piece of wood placed atop and running between the logs which
project out from under the top step in the photographs. According to the
witness the logs on the right and left and the missing front portion of the step
acted as cribbing to hold soil and bark which formed the actual step. Although
the cross-piece was slanted at a minor angle it was not so severe as shown in
Exhibits 4 and 6.
On re-direct examination the witness testified that although reports of defects
or repairs required on trails at the Center were not reduced to writing and
therefore the only records retained would be of "reportable accidents" and not
complaints or non-reported accidents, he never received reports of problems
with the steps at the Beaver Tree Trail Bridge from staff nor had he ever
received complaints regarding the stairs in question from any member of the
Defendant moved to dismiss the claim at the end of claimant's proof. That
motion, upon which the Court reserved decision, is now denied.
Before reaching such issues as the applicability of General Obligations Law
§ 9-103 and any potential culpability on the part of the claimant the Court
must be satisfied that the defendant had notice of the allegedly defective step
at issue herein for liability may only be predicated upon the defendant's
failure to remedy a dangerous condition of which it has either actual or
constructive notice (
Piacquadio v Recine Realty Corp.
, 84 NY2d 967; Smith v State of New
, 260 AD2d 819, 820). If notice to the defendant has not been
established the claim must be dismissed as the claimant will have failed to meet
even the less demanding burden of proof applicable to a common law negligence
cause of action (Kniffin v Thruway Food Markets
, 177 AD2d 920; Torri v
Big V of Kingston
, 147 AD2d 743).
The claimant does not assert the existence of actual notice and the proof
submitted at trial established that there were no prior accidents or complaints
concerning the step in question. Instead, claimant alleges that the State had
constructive notice of the allegedly dangerous condition and failed to remedy
To constitute constructive notice a defect must be visible and apparent and
must exist for a sufficient period of time preceding the accident that in the
exercise of due care it should be discovered and remedied (
Gordon v American Museum of Natural History
, 67 NY2d 836, 837).
Conclusions based upon mere speculation or conjecture are without probative
value (Mueller v Hannaford Bros. Co.
, 276 AD2d 819 quoting
Maiorano v Price Chopper Operating Co.
, 221 AD2d 698,
First, claimant argues that the bottom step upon which she slipped was so
uneven or out of level as to be both visible and apparent. Secondly, claimant
relies upon the testimony of Craig Thompson to establish that the unevenness in
the step was caused by frost heaving which could have occurred at the latest
during April of 1998. The existence of the alleged defect during the period
between April and May 24, 1998 is sufficient, claimant argues, for Center staff
to have discovered and remedied it. Neither argument is persuasive.
With regard to the visibility and apparentness of the allegedly defective step
the claimant has offered Exhibits 4 and 6. These photographs show the stairs in
question with a ruler standing vertically and a long wooden stick resting on top
and running between two logs. The claimant's three witnesses all agreed that
the angle of the stick as shown in Exhibits 4 and 6 is the same as the angle of
the steps as they observed it at the time of claimant's accident. However,
Craig Thompson testified that the angle shown is not representative of the
"slight angle" of the step which he witnessed upon his inspection of the site
several days following the accident. Furthermore, Mr. Thompson testified that
the photographs were potentially misleading in that the step did not rest upon
the wooden projections as does the wooden stick shown in Exhibits 4 and 6 but,
rather, laid on the ground in front of and abutting the projections forming a
crib which was filled with dirt to form the actual second step.
As to what caused the "step" to become slanted and the length of time it was
allowed to remain in that condition the claimant's sole proof is the testimony
of Craig Thompson. Mr. Thompson, however, made it abundantly clear that while
he assumed the step became uneven due to frost heaving he had no expertise and
no independent knowledge upon which to base his conclusion.
The Court finds that the claimant has failed to establish either that the steps
were visibly defective or that any defective condition existed for such a period
of time that it should reasonably have been discovered and remedied. Exhibits
4 and 6 are inadequate to establish the true degree to which the step was out of
level because the condition is portrayed in a manner inconsistent with the way
in which the cross-piece was actually positioned. Mr. Thompson's testimony that
the cross-piece rested on the ground and not on top of the wooden projections on
either side of the stairway is uncontroverted in this regard.
Mr. Thompson disagreed that the degree of slant shown demonstratively in
Exhibits 4 and 6 was a true depiction of the condition as he observed it on his
inspection. He stated that the cross-piece was only slightly slanted ("not
exactly on the bench level") and that he considered the step to be both safe and
in keeping with the natural character of the premises. The Court credits Mr.
Thompson's testimony relative to the degree to which the cross-piece was slanted
and finds that the alleged defect was neither visible nor apparent on the proof
Claimant attempted to establish through Mr. Thompson that the cross-piece
became uneven as the result of frost heaving but presented no expert or other
independent proof to substantiate its position. By his own admission Mr.
Thompson's conclusion amounted to no more than an unfounded guess and will not
support a finding of constructive notice to the State.
Having failed to establish either a visibly apparent defect or the existence of
the defect for such a period that it should have been discovered and addressed
the claimant has failed to establish a prima facie case of negligence and the
claim must be dismissed.
The Clerk is directed to enter a judgment in accord with this decision.