New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK and NEW YORK STATE OFFICE OF PARKS, RECREATION, AND HISTORICAL PRESERVATION, WESTERN DISTRICT, #2002-031-051, Claim No. 100878, Motion No. M-65332


Synopsis


Claimant has failed to offer any evidence that the State created or had either actual or constructive notice of an allegedly defective condition in its park. Defendant's motion for summary judgment granted.

Case Information

UID:
2002-031-051
Claimant(s):
ROXANNE M. JONES
Claimant short name:
JONES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and NEW YORK STATE OFFICE OF PARKS, RECREATION, AND HISTORICAL PRESERVATION, WESTERN DISTRICT
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100878
Motion number(s):
M-65332
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ANN M. BOLAND, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: BARBRA A. KAVANAUGH, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 28, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 3, were read on motion by Defendant State of New York, for summary judgment:
1) Notice of Motion, filed June 7, 2002;
2) Affidavit of Barbra A. Kavanaugh, Esq., sworn to June 4, 2002, with attached exhibits;
3) Affidavit of Ann M. Boland, Esq., sworn to August 21, 2002, with attached exhibits.

Upon the foregoing papers, and upon oral argument from counsel in this matter, the motion is granted. Defendant makes this motion for summary judgment. In her underlying claim, Roxanne Jones alleges that, on August 16, 1997, at approximately 5:45 p.m., she was injured when she fell into a hole at Fort Niagara State Park ("the Park"), a State facility. Claimant states that she was attending her son's company picnic and, while taking a walk with her sister, she stepped into a hole and cut her left leg on a metal spike imbedded in the ground in the center of the hole. According to Claimant, the accident occurred in a grassy, unpaved area of the Park between the fenced swimming pool complex and a parking lot. Claimant asserts that the nature of the land around the hole obscured the hole from view. The hole and spike had apparently been placed there by Park patrons for the purpose of playing horseshoes. Claimant alleges that Defendant knew or should have known of the existence of this dangerous condition and yet failed to remedy the defect, or warn Park patrons of the danger. Claimant alleges that she suffered a laceration which required seven stitches to close as a result of the fall.

In its motion papers, Defendant concedes that the incident occurred, but asserts that the State may not be held liable for Claimant's injuries because Defendant neither created nor had notice of the alleged defective condition prior to Claimant's accident. Defendant also argues that the hole into which Claimant fell was open and obvious and, therefore, there was no duty to warn Claimant of the danger.

Claimant argues that the danger was not open and obvious and that neither she, nor her sister were able to ascertain the existence of the hole or the metal spike prior to the accident.

In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

Here, there is no allegation that Defendant created the alleged hazardous condition. In fact, both parties have apparently agreed that the hazard was created by Park patrons for the purpose of playing horseshoes. In her attempt to defeat this motion, Claimant has asserted that the hole in which she fell was not open and obvious. This position is not surprising, as the law is well settled that a Defendant has no duty to warn of an open and obvious danger that is readily discernable by the use of ones own senses (Tagle v Jakob, 97 NY2d 165; Cimino v Town of Hempstead, 66 NY2d 709). However, a latent defect raises evidentiary problems for a Claimant as well; problems which, in this case, can not be overcome.

Before a Defendant can be found liable for a latent hazardous condition, a Claimant must demonstrate that the defect was created by Defendant, or that Defendant had either actual or constructive notice of the defect (Brown v Johnson, 241 AD2d 829). As stated above, the parties do not suggest that the hazardous condition was created by Defendant. Also, there is no indication that Defendant had actual notice of the alleged defect. Claimant maintains, however, that Defendant had constructive notice of the alleged defect. Claimant alleges that constructive notice is demonstrated by the deposition testimony of Defendant's employee Daniel R. Murphy. Mr. Murphy's deposition transcript (Claimant's exhibit E) does indicate that, prior to Claimant's accident, he had witnessed Park patrons playing horseshoes in the general location of Claimant's accident. However, he clearly indicates that he witnessed such activity seven to nine years before Claimant's accident, at a time when playing horseshoes was permitted at the Park. In the seven years prior to Claimant's accident, the time after which playing horseshoes had been prohibited by the Park, Mr. Murphy had not seen any such activity.

Claimant's argument that the State's knowledge that horseshoes were played in the same general location more than seven years before the accident is without merit. Even without this significant intervening passage of time, a general awareness that a dangerous condition may exist is legally insufficient to create constructive notice (Gordon v American Museum of Natural History, 67 NY2d 836, 837). Rather, to demonstrate constructive notice, a Claimant must demonstrate that the alleged defective condition is both visible and apparent and that it has existed for a sufficiently long period of time to allow Defendant a reasonable chance to discover and remedy the condition ( Gordon v American Museum of Natural History, supra; Prisco v The City University of New York, Ct Cl, January 14, 2002, Read, P. J., UID # 2001-001-530). Claimant has failed to demonstrate either. Claimant argues that the defective condition was not open and apparent. This contradiction aside, there is nothing to indicate that the alleged defect has existed for a sufficiently long period of time to permit the State to discover and remedy the defect. How long this horseshoe pit had existed prior to Claimant's accident is anyone's guess. Indeed, it may have been created by other participants of the very function that Claimant was attending on the day of the accident.

Based upon the foregoing it is:

ORDERED, that Defendant's motion for summary judgment is granted and the claim is dismissed.

October 28, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims