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.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Steven R. Smith, Esq.
Eliot Spitzer, Attorney GeneralBy: John Shields, AAG
April 2, 2003
See also (multicaptioned
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
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
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
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
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
Q. And that was between the curb and the sidewalk?
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
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
, 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
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
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
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
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
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).
Mr. Hall was on this
particular job on May 18, May 21, June 1 and June 4 (id.
); he had
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
, 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
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
A. The expansion wouldn't move but we're sitting on sand so there is some
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 ; PJI
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
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
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
. Any prior motion that has not been ruled upon is hereby
LET JUDGMENT BE ENTERED ACCORDINGLY.
April 2, 2003
New York ,
HON. ALAN C. MARIN
Judge of the Court of Claims
Donna Combs, assistant director of
Presumably - - and there was no dispute over
this - - the west end handicapped area was still off-limits by June 25.
So spelled in court exhibit 1; the transcript
spells it as Sicoflex.