New York State Court of Claims

New York State Court of Claims

TORRES v. THE STATE OF NEW YORK, #2003-010-020, Claim No. 102431


Synopsis


Claimant did not prevail in claim of slip and fall on three stump located in rustic park.

Case Information

UID:
2003-010-020
Claimant(s):
EUGENIA TORRES
Claimant short name:
TORRES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102431
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
WILLIAM PAGAN & ASSOCIATESBy: William Pagan, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 18, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 liability.
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 attention (T:84).[1] 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 accident.
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 fall.
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" (T:46).

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 problem.
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 fuel.

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 behalf of
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).
"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 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 GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 102431.


June 18, 2003
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] References to the trial transcript are preceded by the letter "T."