New York State Court of Claims

New York State Court of Claims

SOLTREN v. THE STATE OF NEW YORK, #2003-016-036, Claim No. 98269


Synopsis



Case Information

UID:
2003-016-036
Claimant(s):
SONIA SOLTREN
Claimant short name:
SOLTREN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98269
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Jacoby & Meyers, LLPBy: James McGarry, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Victor J. D'Angelo, AAG
Third-party defendant's attorney:

Signature date:
May 19, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is the decision following the trial on liability of the claim of Sonia Soltren, arising from her ice-skating fall at Riverbank State Park in upper Manhattan on February 13, 1998. Ms. Soltren recalled that her two children - - a 12-year old girl and 10-year old boy - - had wanted to go ice-skating and so she agreed. The three, along with Fernando Rosario, the children's father, proceeded to Riverbank State Park late in the day on that Friday.

In addition to claimant, two other witnesses gave their testimony at trial. Mr. Rosario took the stand on claimant's behalf, and the defendant called Darcel Michel, who has been the manager of the skating rink complex since the mid-1990's. Mr. Michel presented some general background on Riverbank. It has facilities for any number of activities, including an aquatic complex, three full-sized basketball courts, tennis and handball courts, fields for football and softball, a picnic area and a cultural center with a theater and an amphitheater.

Michel said that the rink (def exh A) is the venue for various ice-skating activities: "[T]he place is used by hockey teams. We also ... have our own hockey programs. It's used by figure skating in Harlem and other figure skating programs, such as [the] Ice Theater of New York. It's used for public skating..." The ice-skating season generally runs from the second week of October to the end of March or the first week of April. In the spring and summer, the facility is converted for roller skating use. The rink, which at 85 by 200 feet is "official sized," is part of a larger skating complex, including two skate shops, the manager 's office, a small party room, a snack bar and an area for eating.

Ms. Soltren, who was 36 years old when she fell, testified that she had been ice-skating since the age of 15. She had, prior to February of 1998, gone ice-skating "[m]any times," although this was her first time at Riverbank State Park. When asked had she ever fallen while ice-skating, she responded, "[s]ure."

Claimant and her party rented skates, which took five or ten minutes. They then sat at tables in an area with vending machines, adjusted their skates and walked on their skates to the rink. Soltren and her party advanced to the edge of the rink; claimant recalled that it was about 6 p.m. They could not go on the rink immediately, because, according to claimant, an employee of the park who was at the half-door that led to the ice (cl exh 1) "said to stop because they had to pass the machine over the ice to smooth out the ice and no one was allowed on the ice."

Soltren recalled waiting another five or ten minutes. During that time, claimant said she did not see the Zamboni machine used on the ice, and she observed that other people were also waiting. Then, claimant recalled that the employee said, "oh just go ahead, enter the ice. Go around for a couple of minutes, and then we [will] get everybody off so we can pass the machine over the ice." Claimant added that this employee had not gone out to inspect the ice beforehand.

Soltren testified that her two children went on the ice and did one loop around the ice (part of which was closed off). At first, claimant just stood on the ice by the doorway watching them. Then the two came over and invited their mother to join in. Soltren did so, and skated toward the other side of the rink:
When I went around, my foot - - my right foot got stuck in the ice... [t]he skate has like a pick in the front ... a point in the front that has like teeth ... the pick went into a hole in the ice [which] was at least a half to an inch deep, not sure ...when my foot got stuck in there, I just fell...I fell back..." (See cl exh 4).
Claimant added that the hole was a half inch to an inch wide. According to Soltren, she had been skating three or four feet behind her children. On her direct testimony, claimant said that the condition of the ice near where she fell "was very rough and there were holes, but I didn't notice the holes because ... I was observing my children."

Mr. Rosario's testimony was in many respects consistent with claimant's: on the time of arrival at the complex ("quarter to six"), that they were held at the entrance for five or ten minutes by an employee until she permitted them on the ice, and that three young men were already on the ice, skating across the rink, not in a circular direction.

Rosario said that he did see what caused claimant to fall - - six or seven holes in the ice in that vicinity. They were "half an inch, about an inch deep, about an inch, two inches long." He added that about five minutes after the injured Ms. Soltren was removed from the ice, the Zamboni machine was run over the ice. After that, said Rosario, the ice was "nice and smooth" and the holes were gone.

Michel stated that the skating complex had a staff of about 20 and recalled that 12 of them were on duty on the evening in question. On the day claimant fell, Michel said that he worked from 2:30 in the afternoon until 11 p.m. He readily - - and without challenge - - recalled that on the subject Friday evening, public skating was scheduled from 6 to 9 p.m. The complex manager explained the facility's policies and procedures, although except for the two accident reports (def exhs B and C, the Incident Report and Patron Accident Report) nothing was in writing; there were no written duty rosters, schedules for skating or for the use of the Zamboni. A log of the Zamboni runs was not begun until a few years later.

Michel set out his recollection of the Zamboni schedule in February of 1998, which by his straightforward manner, internal consistency and the fact that the impact of the answer on this lawsuit was not obvious made his testimony credible. When the Zamboni is brought out on the ice, a half an hour is allotted, but "[it's] really ...a 15 to 20-minute job." For a skating session beginning at 6 o'clock, Michel indicated that the Zamboni machine would smooth the ice between 5:30 and 6 p.m. The next use, given a 6 to 9 p.m. skating session, would be midway therein, usually from 7:20 to 7:40 p.m. The Zamboni and its driver would go to work again on the ice at the end of the session.

Michel noted that prior to the public session, on Fridays at that time, there was ice hockey from 4:00 to 5:30 p.m; or at least one team practicing if not playing. In any event about 18-20 hockey players are on the ice in that period. After the hockey and before the Zamboni is run, Michel agreed that the ice would have cuts, nicks and surface scratches. He indicated that it would have been a variance from proper procedure not to utilize the Zamboni to smooth the ice after the hockey session (and before public skating was to begin).
***
Leaving aside for now whether the facts as claimant presents them in her case would give rise to liability, we must consider whether claimant has met her burden of proving same (see PJI 1:23). At trial, Ms. Soltren contended that the "pick" of her skate, at the toe, got caught in the ice and she fell. But such was not stated by Soltren in the Patron Accident Report: "According to Sonia Soltren, while she was skating with her daughter she went to take another step, when she fell, sustained a ...fracture to the [right] ankle" (def exh C, Part C). Part G is entitled, "Apparent Cause of Accident"; it is filled out "Lost Balance." While not conclusive, the document is, to say the least, not helpful to claimant.

With regard to the timing of the occurrence, there are severe discrepancies. Claimant and Mr. Rosario testified that they got to the rink ready to skate a little before 6 p.m. Both the Patron Accident Report (def exh C) and the Incident Report (def exh B) tell a much different story in that regard - - that Soltren fell at about 8 or 8:15.

Claimant's case was in large part grounded on the timing and sequence of events; that they went on the ice before the Zamboni operation had cleaned it up following ice hockey. That the accident occurred two hours later, following what I conclude from the credible evidence to have been another Zamboni ice resurfacing break, means that claimant fails to satisfy her burden of proof, both from the vantage of presenting a coherent, logical narrative and with respect to the testimonial credibility of her case (see PJI 1:8 and PJI 1:22).

In addition, claimant at her July 27, 2000 deposition described the lighting in the area as "good." At trial, Soltren, could not recall if there was overhead lighting in the vicinity of the accident, the location of the nearest light or whether there were any shadows across the ice.

While Mr. Rosario's testimony was, as noted above, consistent with claimant's on some matters, his persona seemed strangely disconnected from the events; he is notably absent from Ms. Soltren's narrative of what happened to her on the ice. He said he had never before gone ice-skating with Ms. Soltren, and his skating skills, if any, are suspect: "I have trouble – I don't - - I can't skate on the ice." For that reason perhaps, Rosario had several versions of how far away he was when Soltren fell: 1 to 2 feet in his deposition of March 18, 2002, then 10 to15 feet at trial, reduced a few minutes later to 5 feet.

Furthermore, on cross-examination, Rosario said he saw no holes in the vicinity of Soltren's accident before the fall and then after the fall noticed two holes. On his direct testimony, there were at least a half a dozen holes. Moreover at trial, Rosario maintained that he had not, prior to February 13, 1998, gone ice-skating or roller skating with his children; his deposition had it otherwise as to the latter.

In sum, the version of the facts presented by claimant to support her argument is insufficiently credible; and on that basis her claim must fail. But it is not inappropriate at this point to address, to some extent, the potential legal arguments. The Court of Appeals has held that, "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." Morgan v State of New York 90 NY2d 471, 484, 662 NYS2d 421, 426 (1997) rearg denied, 90 NY2d 936, 664 NYS2d 274, sub nom Chimerine v. World Champion John Cheung Tat Kwon Do Inst. ))))[)]
1.
In the instant case, claimant was an experienced skater, who conceded, "when I was entering the ice, the ice was really rough, and I noticed that it was not smooth." See Sykes v County of Erie, 263 AD2d 947, 695 NYS2d 454 (1999), affirmed 94 NY2d 912, 707 NYS2d 374 (2000). The facts here are markedly different from those of Aaron v State of New York, 170 AD2d 420, 565 NYS2d 535 (2d Dept 1991), which was decided several years before Morgan, supra. An ice skater had sued for tripping in a groove in the ice at the rink at Bear Mountain State Park. The Zamboni machine had broken down before the session at which Ms. Aaron was injured, and only half the ice had been resurfaced. Claimant at trial had successfully asserted that the State was negligent in not closing off the portion of the ice that was not resurfaced by the Zamboni; the trial judge agreed, finding the defendant 60% liable. The Second Department reversed, for among other reasons, that:
[t]here was no evidence to establish that the groove ... existed prior to the commencement of the skating session which had begun approximately 20 minutes before the claimant fell. Nor was there evidence establishing that the claimant had fallen on the unresurfaced portion of the ice.

170 AD2d at 421, 565 NYS2d at 535.
***
In view of the foregoing, the claim of Sonia Soltren (claim no. 98269) is dismissed. All motions not previously ruled upon are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY



May 19, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[)]))))
an covered four cases, including one involving a torn tennis net, which circumstance was held not to be an inherent part of that sport - - distinguishable from the facts alleged by Ms. Soltren.