New York State Court of Claims

New York State Court of Claims

FRANCIS v. THE STATE OF NEW YORK, #2003-016-025 , Claim No. 103259


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Gildin, Zelenitz and Shapiro, P.C.By: Michael Feiner, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Rick Montano, Esq., AAG
Third-party defendant's attorney:

Signature date:
March 28, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision on the liability trial of the claim of Thesla Cruz, which arose from her fall at Wildwood State Park in Suffolk County on July 22, 2000. Ms. Cruz, who lived in New York City, drove out to the park that summer Saturday with her husband and two children as part of an outing undertaken by her church. Claimant explained that it was her first visit to Wildwood.

Cruz' husband, Oscar,
did the driving and, according to Ms. Cruz' recollection, the family arrived at around noon, and parked in a lot near the entrance. Her fellow church members were already sitting at three or four of the picnic tables, which were about 50 feet from where the Cruz family had parked.
Ms. Cruz testified that she and her friends at the tables shared the food they had brought, spoke
about church-related matters and played checkers; some of the individuals in the group were barbecuing. Claimant recalls that after about three hours, sometime between 3 and 3:30 p.m., she rose from the table and "just wanted to walk." She noted that she had no particular destination.
Ms. Cruz described what happened next:
"I was walking when I put my left foot in a low step with my ankle and then I fell forward...on the ground." Claimant added that "the ground was broken" and when she was lying there noticed an "elongated hole around fifteen or eighteen inches long." Cruz estimated that she had been up from the picnic table and walking for two or three minutes, but that when she fell, it was at a place only about 15 feet from where she was sitting.[1] Claimant recalled that she was looking straight ahead and was not carrying anything.
Also taking the stand was Juan Carlos Medina, a longtime friend of Cruz, who was part of her group that day, and who recalled getting to Wildwood at about the same time as everyone else did.
Mr. Medina was sitting with his wife at the table next to claimant's before she began her walk. Medina did not see her fall; his back was to her, but he did hear her scream. By the time he turned around, she was on the ground. As to the time of Cruz' accident, this witness thought it was "2:00, 3:00 around there."
When asked if he saw what Cruz fell on or fell over, Medina replied
, "Yeah, I went to where she fell and there tires, you know where the tires pass through...Like a tire print...she fell where the trucks collect the garbage." Claimant offered two photographs into evidence, which show a dirt road (some grass) with vehicle tracks (cl exhs 1 and 2). In the first photograph, according to claimant and Mr. Medina, the table where Cruz was sitting is shown in the center background. The parking lot can be glimpsed in the upper right.
Claimant's final witness was Michael Bogucki, the assistant park manager, whose formal title is Park Manager I. Mr. Bogucki was responsible - - then and at the time of trial - - for overseeing the daily operations of the park. He stated that he had been working at Wildwood in one capacity or another for 19 years. Bogucki explained the layout of the park in some detail. It is 722 acres - - slightly more than a square mile - - and includes beachfront on Long Island Sound. There are two picnic areas separated by one parking lot, known as the upper and lower picnic areas; the latter, which is the smaller of the two, is where the Cruz group was sitting. Together, both areas together have between 250 and 300 picnic tables.

In addition to picnicking, the park manager continued, there is swimming at the beach, playing fields for sports like baseball and soccer, and a campground. The campground requires a permit, unlike the two picnic areas. There is a paved road from the parking lot for the picnic areas to the campground. Wildwood's workforce complement is comprised of 10 full-time employees and 21 seasonal employees.
The park is patrolled by uniformed New York State Park Police.
Patron vehicles are not permitted off road and signs are posted to that effect. However, Bogucki said that some people will drive off paved roads, but when caught are escorted from the park. State vehicles are driven in unpaved areas to perform jobs necessary for operating Wildwood Park
: "[a]nything from cleaning the bathrooms from picking up garbage to getting from one point to another." These vehicles can be garbage trucks, pick-ups, rack trucks, tractors or golf-cart-type small trucks.
It is unavoidable that park-operated vehicles operate off road. For example, Bogucki indicated that there are over 100 garbage cans close by the picnic tables for convenient patron use, and these are emptied by hand into the park's garbage trucks. Garbage collection was done at least once a day. Besides garbage removal,
"[t]here's a constant daily inspection... There's early morning patrol and then throughout the day we're riding around seeing if anything needs any attention." Among the persons inspecting things were the park superintendent and the park foreman. If something amiss were found, a warning sign, cones or a barricade would be placed, or "somebody would be sent down right away to take care of it."
When Mr. Bogucki was shown the photo that is claimant's exhibit 1, he described the green circled area on it as looking like "tire tracks in the mud,"
but could not identify the tracks as coming from a park or patron vehicle, acknowledging that patrons were not supposed to be driving there. When shown the second photo, Bogucki said it looked like "it had rained in the last 24 hours." He concluded that if he saw a condition like the one shown in the photographs, he would not block it off or have warning signs placed there; rather he would send someone down to rake it out. "We might [throw] grass seed down [...] we have done that before." ***
Ms. Cruz' case has a number of problems. According to Ms. Cruz, the photographs showing the site of her accident were taken about two weeks afterwards (cl exhs 1 and 2). She and her daughter accompanied
a friend of claimant's who took the photos. Bogucki's knowledge of the park was so deep-rooted that he immediately recognized what was not obvious - - that the two photos were of the same spot, but taken from a different vantage. To him, the photos showed a muddy condition from a recent rainfall. Claimant offered no evidence of the weather earlier on that Saturday, or for the day or so before, which can easily be done per CPLR 4528. I credit, as more likely than not, the inference from Bogucki's testimony that the conditions portrayed were markedly different from the day of claimant's accident. The photos are, in essence, claimant's case as to the condition of the site; Ms. Cruz' description of the alleged defect was quite limited - - she did not for example even mention its depth.
Assume for the remainder of this analysis that the condition was as depicted in the photographs. At the threshold - - before consideration of the sufficiency of the notice, including if defendant created the condition - - is whether such condition constituted an unsafe or dangerous condition.
Madrid v City of New York, 42 NY2d 1039, 399 NYS2d 205 (1977); PJI 2:90. I conclude that what is at issue here was not, in fact, a dangerous or unsafe condition; it was simply a dirt road or dirt path. For that condition, Mr. Bogucki said that the tracks would be raked, or, much longer term, the area would be reseeded. Furthermore, there was no evidence that there were any prior injuries like claimant's or that anyone - - employee or patron – had made note of, or complained about such a condition.
Claimant contends that defendant should have placed a sign or other device to keep the public away from the tire tracks. Bogucki credibly explained that they do not use warning signs in such a situation.
To this trier of fact, the 722-acre size of the park with 250 to 300 picnic tables, over a hundred garbage cans and daily garbage pick-up (plus any number of other park tasks) suggest that scores of signs and a very significant amount of employee time, if not additional employees, would be necessary to continually position and reposition the signs, cones or barriers that claimant's proposal would require. From the record, it would be highly impractical, if not impossible, to keep all of the trucks off the ground or pave more of the park. Claimant offered no alternative operational method thereon. See PJI 2:12.
Finally, "if a condition is open and obvious and readily observable by the reasonable use of one's senses, a finding of liability based upon the failure to post warnings or to take other precautions is precluded..."
Johnson v Village of Saranac Lake, 279 AD2d 784, 785, 718 NYS2d 713, 714 (3d Dept 2001) (citation omitted). See also, e.g., Tushaj v City of New York, 258 AD2d 283, 685 NYS2d 64 (1st Dept 1999), lv denied 93 NY2d 818, 697 NYS2d 566 (1999). No unseen snare or trap victimized Ms. Cruz; "in the absence of any evidence of a hidden dangerous condition, there is no basis for finding that the defendant owed a duty to post warning signs or to block off the [dirt] path entirely." Morell v Peekskill Ranch, Inc., 104 AD2d 492, 479 NYS2d 241 (2d Dept 1984) (citations omitted). This worn path was in a cleared area and the tracks, and their condition, were quite apparent.
It is thus unnecessary to reach an issue on which the parties expended a fair amount of effort,
namely, the admissibility of certain notes in Ms. Cruz' hospital records (def exh A), and whether, assuming such were based upon statements by claimant, they can be viewed as part of her diagnosis and treatment. See Haulotte v Prudential Ins. Co. of Am., 266 AD2d 38, 698 NYS2d 24 (1st Dept 1999).
In view of the foregoing, Thesla Cruz has failed to prove her case by the fair preponderance of the credible evidence and her claim (no. 103259) is therefore
dismissed. Any prior motion that has not been ruled upon is hereby denied.

March 28, 2003
New York, New York

Judge of the Court of Claims

[1] She actually testified that she fell 15 to 20 feet from where she was sitting, and then quickly followed that up with 10 to 15 feet.