Claimant seeks damages for injuries she sustained on July 11, 1998 at Franklin
D. Roosevelt State Park in Westchester County, New York. The trial of this
claim was bifurcated and this Decision pertains solely to the issue of
Claimant testified that on July 11, 1998, a sunny day, she went to the park with
her family to celebrate her nephew's birthday. They arrived between 10:00 and
11:00 a.m., parked their car in lot number two and walked a short distance to
the picnic area. The picnic area was surrounded by trees and contained grills,
tables and benches. Claimant made two trips back to the lot carrying various
items. After she and her group set up their belongings for a barbeque, they
went to the pool for several hours. Thereafter, they returned to the picnic
area where they all talked, played Monopoly, and sang. During this period,
claimant walked around the picnic area.
At approximately 6:00 p.m., the group was preparing to leave the premises.
Claimant was walking around picking up her belongings and garbage when she
tripped on a stump. Claimant described the stump as five inches high, dry and
coffee colored. She did not see the stump until after she fell. Claimant also
testified that there were branches on the ground which she had not previously
noticed. Claimant stated that she was picking up garbage and not paying
She stated, "You don't pay
attention, it's a park***" (id.
). According to claimant, it was still
bright and she could see well. There were no witnesses to claimant's
Three weeks later, photographs were taken of
claimant, the stump and the surrounding picnic area (Exs. 1-4, 6, 16). Claimant
testified that these photographs were a fair and accurate representation of the
conditions at the time of her accident. From the photographs, it is impossible
to determine the height of the stump. The terrain shows multiple tree roots and
pieces of wood.
Claimant's sister, Ana Rubi, testified that, at approximately 6:00 p.m., she was
picking up paper, a short distance away from claimant, when Rubi heard claimant
scream. Rubi turned around and saw claimant next to the stump. Rubi described
the stump as jagged. She did not witness claimant's
When asked on cross-examination whether she had observed a number of dry
pieces of wood on the ground, Rubi replied, "I - - we don't pay attention to
those things" (T:39). "We were looking - - when you're walking around an area
trying to pick up the same way you're doing at home, like when you're cleaning
up, you look at each other and you keep on doing what you're doing"
Rubi testified that, prior to July 11, 1998, she and
claimant had been to the park together on a number of occasions. Rubi
remembered seeing pieces of wood on the ground, but could not recall if she had
seen any the day of the accident.
Dale Worden testified that he was the Park Manager from 1992 to October 1998
and retired in 2001. The park comprised 1000 acres, a pool, playground, picnic
areas and parking lots. There were only a couple of paved paths which were used
mostly for park vehicles. There were no paved paths from the picnic area to the
pool. There were no garbage cans and the park was designated a carry in/carry
out park. As manager, Worden was responsible for hiring staff and maintaining
the facilities. Part of the maintenance program consisted of inspecting trees
to ensure that they were not hazardous and removing those that posed a
When trees were removed as a hazard, a stump grinder was used to eliminate the
stumps. Worden did not know if there was a minimum diameter for using the stump
grinder. He explained that trees were inspected once a year and a tree
inspection form was completed. Records were produced for 1993-1994, but none
were available for 1997-1998. Worden maintained that, during 1997 and 1998, the
trees had been inspected despite the absence of completed forms. He testified
that tree roots and stumps were not part of the inspection program. He and
staff would evaluate these conditions after they were discovered. Worden noted
that the picnic areas had a high volume of traffic. This lowered the ground
level and exposed the roots.
Worden emphasized that during the park's busy season, June through September,
each employee was responsible for reporting any potential hazards. Worden would
then determine if there was a dangerous condition requiring attention and would
then assign an individual to take the appropriate action. O
n each weekend day of the busy season, approximately 25,000 to 30,000 people
used the park.
Mark Talluto, now the Director of Health and Safety for the New York State
Department of Parks and Recreation in New York City and the Taconic region,
testified that, in 1998, he was the Stockroom Manager and Acting Assistant
Manager at the park. Talluto described the park as rustic, where people go to
enjoy nature. The picnic area is in a natural setting and only some portions
are mowed. While the ground is relatively level, it is not groomed. There are
rock cropping and trees which provide shade. Talluto assisted the park manager
mostly on Saturdays, Sundays and Mondays. He was not involved in the tree
inspection program. Talluto was aware that some patrons cut down trees for
In 1998, Talluto and Worden inspected all of the park facilities daily and
assigned staff to remedy any dangerous condition. Talluto did not recall tree
stumps being left for any length of time. He believed that once a tree was cut,
it was stumped. When asked to examine a photograph of the stump (Exs. 1, 2),
Talluto testified that the piece appeared jagged and would not have been
something his maintenance staff created because they use chain saws. In his
experience, the stump was too small for a stump grinder to have been used.
Bill Logan, a New York State certified arborist, testified, over objection, on
claimant. Logan is also a member of the American Society of Consulting
Arborists and has been retained by New York City to assess hazardous trees.
Viewing the photographs in evidence and assuming the stump was five inches high,
he opined that the stump was a hazard and should have been removed because of
its location. Logan conceded that the photographs showed a lot of roots. The
other roots, however, were lower. In his view, the stump was high enough to
pose a tripping hazard, yet low enough that it was difficult to see. Logan
conceded that he could not ascertain the height of the stump from the
photograph, but that the picnic area would have been shaded in the afternoon,
making it more difficult to see the stump.
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).
(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.
AD2d 347; Mercer v City of New York
, 223 AD2d 688, affd
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,
Upon review of all the evidence, including a review of the photographs in
evidence and 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 picnic area 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 had been to the park on numerous occasions prior to her
accident and was in the area for several hours prior to her fall. Therefore,
she should have been aware of the rustic nature of the picnic area and
necessarily observed that which was there to be seen (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
testified that her accident occurred when she was picking up garbage and not
paying attention. 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).
Defendant's motion to dismiss, upon which decision was reserved, it now
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 102431.