New York State Court of Claims

New York State Court of Claims

FOSTER v. THE STATE OF NEW YORK, #2003-016-027, Claim No. 104841


Claimant's version of sidewalk condition at Jones Beach was not proven and her claim was dismissed.

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:
Steven R. Smith, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John Shields, AAG
Third-party defendant's attorney:

Signature date:
April 2, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the liability trial of the claim of Nancy Foster, arising from her fall in a parking lot area of Jones Beach State Park
on June 25, 2001. As is widely known, Jones Beach is located on the south shore of Nassau County and runs for six miles on a sand bar that stretches east-west.
Ms. Foster has a lifetime attachment to Jones Beach, frequenting it
since she was a child. In recent years, claimant was given to walking on the beach, which she did on a daily basis, weather permitting, according to her testimony. That late June day qualified; it "was a beautiful day." Foster drove to an area known as West End II, which had its parking lot close to the beach and included a building that housed what one employee called "limited facilities,"[1] namely a concession stand and restrooms (cl exhs 1 and 3). The building was situated in the middle of the parking lot, so as to effectively divide the lot into two sides: west of the building and east of the building (cl ex 1).
West End II was one of the less crowded of the Jones Beach facilities, being used more for fishing, surfing and birdwatching than the others.
June 25, 2001 of that year was a Monday. A photograph taken on August 22, 2001, also a sunny weekday, shows an empty parking lot, although the time of day was not given (cl exh 2). The capacity of the lot is 3,200 vehicles.
Foster testified that West End II was one of the beaches she used regularly, and she assented to the characterization that she went there countless times over the years. Claimant also said she usually walked at West End II
and one of the other beaches in "combination."
Foster had a permit that enabled her to park in one of the handicapped parking places in the front row of the lot, closest to the beach. Each
handicapped spot had a ramp leading up to the curb and sidewalk. Claimant observed that about half the time she visited West End II, she went "down to the inlet," which is away from the ocean beach and did not therefore park in a handicapped spot.
Claimant testified that she normally would have parked on the west side of the bathhouse, but inasmuch as that side was undergoing construction, she parked on the right side, taking the first spot, closest to the bathhouse and the path to the beach (denoted with the "A" she marked on claimant's exhibit 1 and an "X" on claimant's 3). Claimant usually met up with a friend, Bill Schwartz, on her walks, and he was already there a couple of spots away.
It was about 2 o'clock in the afternoon.
Foster got out of her car and walked back to her trunk, not using the ramp. Mr. Schwartz helped her take a wheelbarrow out of the trunk, which she used to carry things in while she was on the beach. Her friend lifted the wheelbarrow onto the sidewalk and they walked down to the beach (cl exh 3).
"I sat and ate lunch. And Bill took a walk." Because Schwartz had an appointment, the two only stayed for an hour.
What happened next is illustrated by the red line Foster drew on claimant's exhibit 3. The sidewalk and the ocean are essentially parallel. Her car was parked facing the sidewalk and the beach. She walked over the sand back toward her car, and stepped onto the sidewalk. Claimant was close to her car, which was in the first row and closest to the path that goes through some fencing out to the parking lot (id.).
Foster turned right, walking only the few feet in front of her car. Claimant at this point picked up the narrative:
"I took a left to... I planned on going down the ramp." Then according to her direct testimony, either just after she made the turn, or while she was making it, "I stepped down on something very sharp and very hard. And I instinctively just pulled my foot up. And then I tripped and fell and ...[my] foot was twisted to the right."
At first she tried to move to straighten herself, but was
"all twisted up"; she did not know in which direction she fell. Claimant indicated that she had not been looking down, but was looking forward: "I saw the parking lot. I saw the ramp. I saw my car."

After the accident happened, Ms. Foster took a look to see what caused her fall:

A... It appeared to me at the time that it was about two inches of hard cement just sticking up because I remember just being shocked. I remember showing it, I think, to the EMT.

Q. When you say it was something two inches that looked like cement, was that material between the curb and the sidewalk, between the curb and the ramp, on the ramp, on the sidewalk or any other way...?

A. It was on the floor and there was all of this broken stuff all over the place...It was just all broken pieces everywhere.
She did not answer the question until it was asked again, more pointedly this time:
Q. And that was between the curb and the sidewalk?
A. Yes.

On cross-examination, Foster stated that there were "a couple of pieces sticking up and this one big piece."
Back on redirect, claimant talked about how messy the area was:
Q... what caused you to fall?
A. It was two inches of cement, debris, in front of the handicap ramp that was all broken up and this was just standing up. The whole area was a mess.

Donna Combs at the time was the assistant director of operations for Jones Beach with responsibility to oversee the
"four main areas" of Jones Beach and all employees involved with its daily operations. In the middle of the afternoon of June 25, 2001, Ms. Combs responded to a radio call report of a patron injury at West End II. When she arrived ten minutes later, Ms. Foster was lying on the ground. Combs was called to the stand by claimant and the following is a portion of the Q. and A.:
Q...[D]id you look around specifically to see what it was that caused her fall?

A. I looked for something; yes.

Q. And when you looked around, did you observe anything that caused you to believe that that's what caused her to fall? A. No.
Director Combs went on to say that the area was "clear and clean of any debris that she could have tripped over." Then the witness was asked about three possible conditions, whether she had observed
"cracks or broken cement or raised pieces of curb?" She responded to one of them, viz., cracks, to the effect that she had observed a space between the sidewalk and the curb (not between the curb and handicapped ramp, see cl exh 4).
Then once more over the same ground:
Q... What was the material that you observed to be within that space?
A. It's some type of coping.
Q. And was it raised or broken or cracked? A. Cracked.

Q. Was it raised in any way? A. Not that I recall.

Q. Was there anything loose or sticking up there? A. I don't recall that.
The Patron Accident Report was offered by claimant (cl exh 5) and includes this sentence, which went unchallenged: "Patron stated she was walking to her car and tripped on a crack in the sidewalk between the beach and parking lot and fell."
The case at bar comes down to claimant's ability to perceive what happened and to convey that accurately. See
PJI 1:8. As set forth above in extended, if not complete detail, the claimant firmly asserted that she knew what caused her to fall. No one else saw such condition; there were no reports of it. Claimant offered photos of various conditions in the parking lot that were not at the situs, but to show generally how different filling material aged, but none looked like the condition that Ms. Foster described (see, for example, cl exh 10).
Besides Combs, claimant called three witnesses who were employees of Jones Beach with various maintenance responsibilities: Timothy Byrne, Osmund Hall and Jeffrey Lecky.

Mr. Byrne had been employed by the State Office of Parks and Recreation for 21 years. In June of 2001 he was working at Jones Beach as a Maintenance Supervisor III. He pointed out that his jurisdiction covered the Jones Beach complex, which included Robert Moses and Captree State parks.
Byrne testified that his job was to oversee the work crews that did a variety of maintenance and skilled trade tasks, such as electrical repair, carpentry, plumbing and operating the water and sewage treatment plants. Significantly for our purposes, he also supervised masonry and brick repair work.
There were four masons and a supervisor for 60 lane miles of road maintained by the Office of Parks and Recreation, as well as 12 to 15 parking lots at Jones Beach, 5 or 6 lots at Robert Moses and a few at Captree.
Byrne stated that when constructed, there is "expansion joint material" between the curb and the sidewalk, like the place where claimant had parked. The material comes in fibreboard sheets, 4 by 8, is slightly oiled and after installation, may be covered with sealant. Byrne explained that after the cement is poured, it is allowed to set or "cure" for a particular period of time before any sealant would be applied. Byrne was a highly credible witness; he was straightforward and if not sure about something, he explained the limits of his knowledge.
Work had been done on the west side of West End II, the opposite side of the lot from where Foster had parked. This was because its sidewalk had risen up above the level of the curb (and the handicapped ramps). As to the east side of the lot, Byrne remarked that he had probably driven over there 1,000 times, had in fact been there the week of the accident and did not notice anything amiss. He was then specifically asked whether there was anything like the height differential on the east side as had necessitated the work on the west side, and Byrne responded that he did not observe anything. Bear in mind, that even if there were, this was not the condition Foster testified caused her injury: "I stepped on something very sharp..."
Byrne explained that over time the expansion joint materials break down, but what results are cracks (not sharp protrusions).
Next, claimant put on the stand Osmund Hall, who was a mason and plasterer. He had worked on the project to level the sidewalk on the west side of the parking lot. The project was started on May 15, 2001 and completed on June 4, three weeks before Foster's accident (cl exh 13).[2] Mr. Hall was on this particular job on May 18, May 21, June 1 and June 4 (id.); he had
an opportunity to observe the east side of the lot and did not see the condition of which Ms. Foster complained, although, as Byrne indicated, masons are responsible for the repairs, not for inspection.
Hall was a plainspoken witness who knew his craft; such conclusion is not affected by his apparent confusion on how many handicapped spots there were on each side of the parking lot, or because in his deposition (cl exh 12, p.15), Hall had said the filler/sealant shown in a photograph (trial cl exh 7) was not Secaflex[3]
, but then at trial testified that it was. Hall spoke about the use and properties of different sealants and fillers, at no time suggesting that any of them would take the form claimant said she saw after her fall. For example, the witness stated that Sono-Patch is a fiber with sand and cement, used to patch, not to seal, but which if applied more than half an inch thick, will crack. Hall never implied that it would break and stick up two inches.
Claimant's third and final witness of this group was Jeffrey Lecky, a mason; knowledgeable about his craft, he was credible on the stand. For example, as to Secaflex , Mr. Lecky said it cannot be put down when the temperature is below 60 degrees. On direct examination the following exchange took place:
Q... over the years that you've been employed by Jones Beach, have you ever seen any settling of land or movement of the land which caused the expansion joint material, whatever it was in there, to break or to move up or move down or move around?

A. The expansion wouldn't move but we're sitting on sand so there is some movement.
Stanley Fein, a professional engineer, testified on behalf of claimant.
In talking about the filler material, whether compressed board or tar-based, Mr. Fein offered this opinion: "it's all filler material. It's all compressible. It's all flexible." Such does not sound like "something very sharp...two inches of hard cement" as Foster described it.
The defendant State of New York has a duty to maintain reasonably safe premises at its Jones Beach facility (
Basso v Miller, 40 NY2d 233, 386 NYS2d 564 [1976]; PJI 2:90), but it is not an insurer (Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 [4th Dept 1977]): that an accident happened does not necessarily mean that it was caused by defendant's negligence. Claimant must prove, by a fair preponderance of the credible evidence, that defendant was negligent. Since to this trier of fact, the evidence is insufficiently persuasive that the accident site on defendant's premises had something very sharp that was sticking up ("two inches of hard cement") which was the proximate cause of Ms. Foster's fall (see PJI 2:12 & 2:70), her claim cannot succeed.
It is thus unnecessary to reach a number of other issues, including those relating to: whether conditions violated an applicable rule, regulation or recognized standard;
the State's reliance on immunity and Ms. Foster's medical records.
In view of the foregoing, Nancy Foster has failed to meet her burden of proving by the fair preponderance of the credible evidence that the defendant's negligence caused her fall on June 25, 2001, and her claim (no. 104841) is therefore
dismissed. Any prior motion that has not been ruled upon is hereby denied.


April 2, 2003
New York , New York

Judge of the Court of Claims

[1] Donna Combs, assistant director of operations.
[2] Presumably - - and there was no dispute over this - - the west end handicapped area was still off-limits by June 25.
[3] So spelled in court exhibit 1; the transcript spells it as Sicoflex.