3) Affidavit of Ann M. Boland, Esq., sworn to August 21, 2002, with attached
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.