New York State Court of Claims

New York State Court of Claims

TATZ v. THE STATE OF NEW YORK, #2002-016-095, Claim No. 102734


Claim alleging slip and fall injury on Jones Beach boardwalk was dismissed.

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:
Decolator, Cohen & DiPrisco, LLPBy: John Decolator, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John Shields, AAG
Third-party defendant's attorney:

Signature date:
September 26, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the trial on liability of the claim of Sylvia Tatz arising from her August 4, 1999 fall on the boardwalk at Jones Beach, which is a part of the State park system and is located in Nassau County. At trial, Ms. Tatz testified as did a Jones Beach staffer, William Stockdale; each side submitted a photograph (cl exh 1; def exh A). These present the facts of the case, and are, by and large, undisputed.[1]
Claimant belonged to a Nassau County hiking and outdoors club that would walk the boardwalk, which is two miles in length. In the
summer, a group would meet every Wednesday morning for their walk which was usually a round trip of four miles, and afterwards they would have lunch together. Claimant had been walking the boardwalk for at least ten years; and other than Wednesdays, there were weekends when she would walk, although the testimony was unclear as to whether such were undertaken with her hiking club.
According to Tatz, that August morning in 1999 was sunny and the hikers numbered at least 7 or 8. She was wearing sneakers and the boardwalk was uncrowded. The walkers would break into groups of two or three, walking alongside of one another and conversing. They would move at what claimant described as "normal walking speed... these are not fast walkers on Wednesday."

Claimant describes what happened: "[A]bout 20 - 25 minutes after we started walking, I suddenly went down...And then I looked around me and I saw some nails protruding
...[a]bout ½ inch." There was no further detail. Tatz remarked that she "was so surprised [because] I've walked this area so many times..." Ms. Tatz was driven from the boardwalk in a three-wheeled truck by members of the Jones Beach first aid office to her car. No medical assistance was rendered at the time and she had not sought any.
Unless the State is deemed to be an insurer - - which it undisputedly is not (
Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 [4th Dept 1977]) - - the submitted facts do not support a viable theory of recovery:
(i) Ms. Tatz gave a sketchy history of her fall and offered no particulars as to how the nail caused her accident (such as "I felt my foot get caught, I began to lose my balance" etc.).
(ii) Claimant returned to the area for the first time months later on October 26, 1999[2] and could not remotely fix the accident situs. Tatz recalled that she fell somewhere between parking lot 6 and parking lot 4:
A. [Ms. Tatz]. I know that it was between 6 where we meet and 4...the First Aid Station. And I know that people that went to get aid it didn't take them too long. I'm just approximating by the time it took them to go there and come back. Q. Between 6 and 4, can you tell me how long that area is? A. ... I would say maybe about ½ or 3/4 of a mile, or something like that. Q. So you fell somewhere within that ½ or 3/4 of a mile, but you're not sure exactly where? A. The exact spot, I don't think so, no.

At this post-accident visit to the boardwalk, Tatz pointed to a nail that was protruding as much as the nail that she contends caused her to fall months earlier. The person who was accompanying her took the photo of what became claimant's exhibit 1 (as well as defendant's exhibit A).
(iii) As of August, 1999, Mr. Stockdale was an employee of the NYS Department of Parks and Recreation assigned to Jones Beach and worked in the title of Assistant Park and Recreation Aide Specialist. While Stockdale testified that he and his colleagues may not have been responsible for the entire two miles of boardwalk, he indicated that the portion of the boardwalk outside of his jurisdiction was handled in the same manner:
We would inspect the boardwalk area itself, the trash cans to make sure they were emptied...We reported deficiencies along the way - - the fence was broken...or the boardwalk's raised, nails raised out of the boardwalk, anything that might be a hindrance to the public enjoying themselves in the park.
Park and Recreation Assistants, or PARAs, would patrol as part of the inspection. Stockdale testified that in his area, 6 PARAs a day would move across the boardwalk, inspecting it. They would hammer down any nail protruding above the surface, irrespective of how far up it was. There were two hammers among the six workers; not all six were patrolling at once. Stockdale did say that
"most of the times any nail that was sticking above the surface of the boardwalk was considered a tripping hazard." If the situation could not be remedied with hammering, a work order was generated and until repaired, a yellow cone was left in the spot.
Stockdale testified that to his knowledge, as of August 1999, no beach-goer had complained about nails in the boardwalk and no one had fallen as a result of a protruding nail.
These facts do not meet the requisites for demonstrating negligence in a lawsuit arising from such a trip and fall. No evidence was elicited to show that defendant created the condition. While a nail in a boardwalk is, on its face, a less natural condition than, for example, tree branches overhanging a road, claimant Tatz supplies no proof on the matter. The only reference anywhere in the evidence on how such occurs is Stockdale's observation:
"I'm not sure of the frequency of the situations found [protruding nails ]. It was not too often though, because there's no extreme weight on the boards that would make the nails ride up and out."
Alternatively, were the condition not created by defendant, then to prove negligence on the part of the defendant, it must be demonstrated that it had notice, or should have had notice of any such condition.
Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYSd 700 (2d Dept 1996). No notice was proven, and as to constructive notice, claimant cannot satisfy its burden, for example by showing it should have inspected the boardwalk and did not - - the evidence is otherwise. The unchallenged testimony was that half a dozen park assistants would patrol the boardwalk for such potential hazards. See Preston v State of New York, 59 NY2d 997, 466 NYS2d 952 (1983). It is thus unnecessary to reach an issue raised by defendant, namely that the alleged condition was not in any event a dangerous one, citing Trincere v County of Suffolk, 90 NY2d 976, 665 NYS2d 615 (1997).
Moreover, in applying the tests as to whether a defendant created a particular condition or had notice thereof (actual or constructive), such is a virtual impossibility when, as in this instance, claimant's testimony regarding the site of her accident is so imprecise that she may have fallen anywhere within a one-half to three-quarter mile stretch of boardwalk. This brings us to a perhaps more fundamental flaw in claimant's case. Subdivision b of section 11 of the Court of Claims Act requires, as a jurisdictional predicate, that a claim contain a sufficient level of specificity as to its location
. In Cobin v State of New York, 234 AD2d 498, 499, 651 NYS2d 202, 203 (1996)[3], the Second Department upheld the dismissal, on the pleadings, of a claim alleging that Ms. Cobin "was injured as a result of a trip and fall ‘on the boardwalk at Jones Beach the East Quarter Circle, or its vicinity'. Because the notice of intention fails to identify the place where such claim arose with sufficient specificity, we find that it fails to comply with the strictures of Court of Claims Act §11(b), and is therefore, jurisdictionally defective."
In view of the foregoing, the claim of Sylvia Tatz (no 102734) is
dismissed. All motions not previously ruled upon are deemed denied.

September 26, 2002
New York, New York

Judge of the Court of Claims

[1] A brief portion of the deposition of another employee, Karen O'Connell, was read at trial. Neither the O'Connell deposition testimony nor a third exhibit (defendant's B) contributed to the factual picture.

[2] See the date on cl exh 1 and def exh A.
[3] Lv to appeal dismissed 90 NY2d 925, 664 NY2d 259 (1997), rearg denied 91 NY2d 849, 667 NYS2d 685 (1997). See also, Sheils v State of New York, 249 AD2d 459, 671 NYS2d 519 (2d Dept 1998); Schneider v State of New York, 234 AD2d 357, 650 NYS2d 798 (2d Dept 1996).