New York State Court of Claims

New York State Court of Claims

FAIR v. THE STATE OF NEW YORK, #2003-010-009, Claim No. 103005


Claimant fell off edge of sidewalk, not a latent defect. Rather, claimant's own inattentiveness was the sole proximate cause of her fall.

Case Information

LINDA FAIR AND DAVID FAIR The Court granted defendant's motion to amend the caption to provide for the only proper defendant in this action.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court granted defendant's motion to amend the caption to provide for the only proper defendant in this action.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
WILLIAM C. MC SORLEY, ESQ.By: Gregg Star, Of Counsel
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 20, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Linda Fair,[1] seeks damages for injuries she allegedly sustained on June 2, 2000 when she slipped and fell off the edge of a sidewalk and onto the grass in the Old Croton Aqueduct State Historic Park (the Park) in the Village of Dobbs Ferry.[2] Claimant alleges that the grass, maintained by the State, obscured the depression in the ground where she fell. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

The Park, which follows the Croton Aqueduct, extends 26 miles through 11 communities. It is approximately 60 feet wide and has a trail surrounded by a grassy surface. In the area of claimant's accident, there is a sidewalk along the edge of the Park which runs parallel to Broadway.

Claimant was five months pregnant and carrying her 20 pound three year old son and a pocketbook while holding the hand of her six year old son with her right hand as she walked southbound on the sidewalk toward her home. Claimant was wearing sandals or mule type shoes with a low wedge sole that strapped in the back.[3] Claimant recalled that, immediately prior to the fall, she was talking to and looking at her six year old son on her right. The photographs in evidence show that the grass covered ground on claimant's right side obviously sloped down toward the Park trail (Exs. 1-4). Claimant contends that she fell because the grass to her right obscured an erosion or depression in the ground. Claimant, who lived in the area for eight years, walked almost daily on this sidewalk and she knew that the ground sloped to her right.

Claimant explained that her accident occurred suddenly, when her foot went into a hole next to the sidewalk. She had mistakenly thought that the ground was even with the sidewalk because the grass appeared four inches higher than the walkway. Claimant could not explain why she stepped off the sidewalk. While the width of the slab of sidewalk upon which claimant was walking was narrower than the width of the slab ahead of her, claimant testified that the disparity between the two was not the cause of her accident. Rather, she attributed her fall solely to the depression beneath the grass. She could not, however, explain why her foot went off the sidewalk. She had been walking on the sidewalk and intended to continue in such manner toward her home. Claimant testified that she thought that her six year old son may have walked on both the grass and the sidewalk as they proceeded.

David Fair, claimant's husband, went to the scene and took pictures within two days of the accident (Ex. 4). He testified that he put his hand in a depression which he thought may have been where claimant had fallen. He estimated it to be five and a half to six inches deep. He described the entire aqueduct area as overgrown with grass.

Brian Goodman, who has been employed at the Park as the Historic Site Manager for nine and a half years, testified that he was responsible for the maintenance of the Park. He explained that heavy lawn mowers and weed eaters were used to cut the grass. During the summer months, he drove a vehicle along the 26 miles of trail to inspect conditions. Depending upon the weather, the grass was mowed three to five times a year. There are no signs in the Park warning patrons to stay off the grass or to proceed at their own risk. Goodman testified that he could tell from one of the photographs in evidence that the grass had been mowed recently because it was short (Ex. 4-B).

The State, as owner and operator of the Park, has a duty to use reasonable care in maintaining the property in a reasonably safe condition to prevent the occurrence of foreseeable injuries (see Basso v Miller, 40 NY2d 233, 241). While the State also has a duty to warn the public of any latent dangers that are not readily apparent (see Walter v State of New York, 185 AD2d 536), claimant is bound to see that which could have been observed by a proper use of her senses (see Coote v Niagara Mohawk Power Corp., 234 AD2d 907).
"Negligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of claimant to show affirmatively by competent evidence that the injury complained of was caused by reason of some breach of duty by the State. Negligence must be proven"
(Mochen v State of New York, 57 AD2d 719, 720). Claimant must establish: the existence of a foreseeable dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that damages were sustained (see Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955). A landowner will not be held liable for conditions inherent in the nature of the land that could reasonably be anticipated by its users (see Nardi v Crowley Mar. Assoc., 292 AD2d 577, 577-78).

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to establish that defendant was negligent in either its maintenance of the grass or its duty to warn of any latent dangers (Tripoli v State of New York, 72 AD2d 823 [claimant did not establish State was negligent in its maintenance of park where claimant fell in hole one foot wide and eight to twelve inches deep in grass covered portion of parking lot]). Claimant was familiar with the area, having walked on the route almost daily during the eight years preceding the accident. She knew the ground sloped on her right and necessarily observed the grass adjacent to the sidewalk at different times of the year (see DeLaurentis v Marx Realty & Improvement, ___ AD2d ___, 752 NYS2d 349 [claimant fell while descending a hill on an unpaved path; no liability where condition was inherent in dirt path known to plaintiff and readily observable]). Claimant's testimony regarding her footwear on the date of the accident leads to the conclusion that her shoes were not appropriate walking shoes given all the circumstances. Notably, claimant was balancing one child while talking to another and not looking where she was going. She could not specify the precise location of her fall nor do the photographs exhibit a latent defect. The evidence leads to the conclusion that the defect did not constitute a trap or nuisance and claimant's fall was due to her own inattentiveness (see Kojtari v State of New York, 282 AD2d 437; Paulo v Great Atlantic & Pacific Tea Co., 233 AD2d 380).

Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now granted.


March 20, 2003
White Plains, New York

Judge of the Court of Claims

[1] The claim of David Fair, Linda's husband, is derivative.
[2] The Village of Dobbs Ferry maintained the sidewalk and there is no allegation that the sidewalk was in any way defective.
[3]Claimant testified at her examination before trial that she had been wearing low mules that were not strapped in the back.