New York State Court of Claims

New York State Court of Claims

WELSH v. THE STATE OF NEW YORK, #2003-031-517, Claim No. 101256


State is 60% liable for injuries suffered by Claimant after being struck by an all terrain vehicle operated by a State employee.

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:
Defendant's attorney:
New York State Attorney General
BY: GREGORY P. MILLERAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 7, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Lisa Ann Welsh, was injured on August 22, 1999, at Beaver Island State Park in Grand Island, New York ("park") when her leg and the passenger side of a John Deere all- terrain vehicle ("ATV") made contact. She filed claim number 101256 on October 18, 1999, seeking damages for the personal injuries she sustained in the incident. I held a trial on the issue of liability on April 8, 2003.

Beaver Island State Park is owned and operated by Defendant. The gentleman operating the ATV that hit the Claimant was a park employee, specifically, a Park Recreational Aide ("PRA"). A PRA is responsible for greeting park patrons and directing them to the various shelters around the approximately 700 acre park. A PRA may, at times, give people rides to and from their cars and the shelters. In addition, PRAs escort vehicles that wish to unload passengers and/or equipment from parking lots to shelters. Two PRAs were on duty the day of the accident. There is no dispute as to the fact that Claimant's leg came in contact with a moving ATV being operated by a PRA during the course of his duties.

The event which brought Claimant to the park on August 22, 1999 was a summer picnic sponsored by Claimant's employer, Hutchins Automotive Supply Company ("Hutchins"). The Hutchins picnic was held at the park's Marina Shelter North. Gregory O'Connor, a 16 year employee of Hutchins and future husband of Claimant, was in charge of the picnic. He testified that he arrived at about 10:30 a.m. with the company van loaded with grills, food, chairs, games and ice for the approximately 75 people that would attend the picnic. The shelter was near the boat docks and the beach; parking for that area was located above the shelter at the top of a hill. The witness believed that Hutchins employees were permitted to drive their vehicles down from the parking lot to the shelter to unload. This fact was actually confirmed by Daniel F. Morabito, Sr., one of the PRAs on duty that day. However, the park required that vehicles be escorted from the parking lots to the shelters by a PRA. The witness stated he drove down without an escort, as did a pickup truck with beer kegs that arrived after the witness and his van.

Mr. O'Connor believed that he first saw PRA Morabito shortly after his arrival at the park. He testified that the PRA yelled at him for driving on the grass, but when the witness explained he just needed to unload, the PRA told him to go ahead and unload then remove the vehicle immediately. The witness believes he saw PRA Morabito "at least a dozen times" that day; on cross-examination he stated that he probably saw PRA Morabito drive by at least every 10 minutes. On one occasion that morning, he actually sought out the PRA to inquire whether or not people who were somehow incapacitated could be driven down to the shelter and dropped off, and he was given permission to do so. From that time until about 3:00 p.m., he testified that no other Hutchins group vehicles were driven down to the shelter.

The Claimant testified that she, too, first saw PRA Morabito when she arrived at the park that morning, shortly following the arrival of Mr. O'Connor in the Hutchins van. She also believed that PRA Morabito spoke with Mr. O'Connor throughout the day. Both Claimant and Mr. O'Connor testified that their contacts with the PRA were unpleasant. Claimant described Mr. Morabito's demeanor as "gruff" and "abrupt." I find that Claimant and Mr. O'Connor did have contact with a PRA at various times on the date of the accident. However, I find that it was not PRA Morabito each and every time.

PRA Morabito testified that he came to work at 1:00 p.m. on the date of the accident and that he was scheduled to work until 9:00 p.m. He first heard about the group at the Marina Shelter North when he started his shift. He understood that a vehicle was seen parked on the grass next to the shelter unloading between 6 and 8 kegs of beer and, although the vehicle should have been escorted first, it was not improper to permit the Hutchins employees to finish unloading the truck before taking it back to the parking lot. PRA Morabito drove by the shelter for the first time between 1:30 p.m. and 1:45 p.m. to make sure no vehicles were on the grass. PRA Morabito testified that the picnickers' response to his presence and his direction was "not favorable." He drove back to the shelter again around 3:30 p.m. with Thomas Curry, his supervisor.

Mr. Curry, in turn, testified that, at that time (3:30 p.m.), a Hutchins company vehicle needed an escort and he instructed the picnickers how to proceed off the grass and away from the shelter. Another pickup truck was also parked by the shelter at that time and Mr. Curry insisted that it be removed. He told the picnickers not to bring any more vehicles down to the shelter. He and PRA Morabito left the shelter shortly thereafter when they received a call requesting an escort in another part of the park.

According to PRA Morabito, he did not return to the shelter again until approximately 8:00 p.m., at which time he informed the Hutchins employees that they needed to leave the shelter before 9:00 p.m. and that he had extra garbage bags for their cleanup if they were needed. He was parked about 10 to 12 feet away from the shelter, had the ATV in neutral with the emergency brake engaged and the engine running. He stated he never got off the ATV. While he was there, he observed two vehicles drive through the picnic area. When he asked to speak to someone in charge, he testified that he was directed to Claimant. At that point, the remaining people in the shelter became "belligerent." Claimant admitted that the people in the shelter were a "little inebriated," had raised voices, and were swearing at PRA Morabito. In fact, she tried to diffuse the situation. This is what led her to approach the ATV.

Claimant stated she walked up to the passenger side of the ATV and stood near the seat and behind the right front fender. One witness described Claimant as being "very, very close" to the ATV. Another witness, who was positioned next to Claimant by the tire, stated Claimant was so close to the ATV that she had placed her foot or her knee on the tire. After conversing with Claimant, PRA Morabito moved the vehicle in reverse. The witness standing next to Claimant saw Claimant's "leg go underneath the tire;" he caught Claimant under her arms from behind as her body moved to the left, toward the rear of the ATV, and then fell backwards.

Mr. O'Connor observed the accident from the other side of the ATV. His impressions were that, as Claimant's upper body moved to her left, her hip was being elevated because her leg went up inside the wheel well. He assumed her leg was in the wheel well because her leg and foot became visible to him as she was being pulled out and away from the ATV.

It is not clear to me exactly how Claimant was injured by the ATV tire. If her foot was behind the tire as Claimant testified, or on the top of the tire as the witness right next to her stated, it would make sense that the tire ran over her leg and/or foot as PRA Morabito backed the ATV away from the shelter. I find it difficult to explain how her leg and foot could have traveled to the right and forward over a tire that was moving counterclockwise as the ATV was operated in reverse. The fact that her upper body pitched to the left as if "she lost her balance" and her hip became elevated as the ATV moved in reverse supports the testimony that her foot or knee had been resting on the top of the tire.

I also find that the communication between the PRAs and some of the picnic attendees at the shelter was not cordial; by some accounts it was rude. Most of the witnesses testified that the picnickers were drinking throughout the afternoon. I do not doubt PRA Morabito's testimony that he felt intimidated by the picnickers at the time of the incident.

A defendant stands liable in negligence only for breach of a duty of care owed to the plaintiff (
see Pulka v Edelman, 40 NY2d 781, 782). The existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal question for determination by the courts (see Di Ponzio v Riordan, 89 NY2d 578, 583). Regardless of the status of the plaintiff, the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived (see Basso v Miller, 40 NY2d 233, 241). In words familiar to every first-year law student, "[t]he risk reasonably to be perceived defines the duty to be obeyed" (Palsgraf v Long Is. R.R. Co., 248 NY 339, 344). Although the precise manner in which the harm occurred need not be foreseeable, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent (see Di Ponzio v Riordan, 89 NY2d at 584; Sanchez v State of New York, 99 NY2d 247, 252).
Judge Francis T. Collins' analysis in
Stasack v State of New York (Ct Cl, March 17, 2003 [Claim No. 103609], UID #2003-015-573) regarding the existence and scope of the State's duty to a claimant is most helpful. In that case, Judge Collins had to determine whether or not the State owed the claimant a duty to protect him from a State-employed maintenance worker pushing a refuse-laden gondola. The gondola operator pushed the gondola through a swinging door and the door struck the claimant who happened to be standing on the other side painting the door area. The gondola operator had been on her way to empty the gondola at a loading dock located through the offending doors. Inasmuch as the proof at trial established that the gondola operator was employed by the State and that her duties included the use of the gondola in cleaning State offices and transporting the refuse through the swinging doors, Judge Collins determined that the State could be held liable for a negligent act committed by the gondola operator. He also determined that the gondola operator owed a duty to protect persons near the swinging door through which she routinely pushed the gondola.
Here, there is no dispute that, at the time of the accident, PRA Morabito was a State employee operating a state-owned ATV and was present at the shelter as a regular part of his duties. Thus, Defendant can be held liable to Claimant for Mr. Morabito's negligent operation of the ATV. However, as with the case of the swinging door, the existence and scope of a duty to protect a claimant from an ATV is a novel issue.

Previous ATV cases involved the issue of "negligent entrustment," where a competent adult grants permission to a minor to operate an ATV that eventually injures the minor or someone else (
Rios v Smith, 95 NY2d 647; Dodge v Victory Mkts., 199 AD2d 917; Sabia v Hovnanian Cos., 280 AD2d 461); or the issue of the duty to defend or indemnify in such a case (Fitzpatrick v American Honda Motor Co., 78 NY2d 61; Prudential Prop. & Cas. Ins. Co. v Godfrey, 169 AD2d 1035 [declaratory judgment]; Emery v Capital Mutual Insurance Co., 151 AD2d 854; Progressive Cas. Ins. Co. v Jackson, 151 Misc 2d 479); or criminal cases[1] (People v Hart, 266 AD2d 698 [manslaughter]; People v VanDenBosch, 142 AD2d 988 [criminally negligent homicide]).
Another species involves negligence claims against landowners. For instance, in
Bruenn v Pawlowski (292 AD2d 856), the Appellate Division, 4th Department, affirmed an order granting summary judgment to property owners "who were not present at the time of the accident and were unaware that Pawlowski would be on their property [and] owed no duty to prevent or control the conduct of Pawlowski in operating his ATV while in an allegedly intoxicated condition" (id.).
Pulis v T. H. Kinsella, Inc. (156 Misc 2d 499), defendant landowners attempted to avail themselves of General Obligations Law § 9-103 ("GOL"); that statute provides that a landowner "owes no duty to keep the premises safe for . . . motorized vehicle operation for recreational purposes . . . to persons entering for such purposes" (GOL § 9-103[1][a]). The trial court determined that immunity will not attach where a portion of the property was a gravel pit, and therefore, unsuitable for recreational use.
Beninati v Yamaha Motor Co. (178 Misc 2d 941), plaintiffs sued defendant ATV manufacturer after their son was killed riding an ATV in violation of the age-of-user/size-of-ATV restrictions in a consent decree between the United States Department of Justice and defendant. The trial court determined on summary judgment that the dealership that sold the oversized ATV, with the parent's consent to the purchase and use, coupled with the decedent's reckless riding on the night in question, were all superseding acts unforeseeable by defendant manufacturer (Beninati v Yamaha Motor Co., 178 Misc 2d 941 at 947).
I conclude the ATV operator owed Claimant a duty of reasonable care. Now the question becomes: "Was the harm befalling Claimant within ‘the class of reasonably foreseeable hazards' that the duty exists to prevent?" (
see Di Ponzio v Riordan, 89 NY2d at 584 - 85).
I find that the ATV operator applied his foot to the gas pedal causing the ATV to move in reverse without warning. Despite the fact that he and Claimant had been engaged in conversation in rather close proximity of each other, he failed to warn her that he intended to put the ATV in reverse and leave the area. The State contends that Mr. Morabito had to remove his foot from the brake, release the hand brake, move the gear shift to the reverse position and look behind him before applying the gas, which should have given Claimant sufficient notice to move her foot from the ATV tire and avoid the injury. All other witnesses to the accident, however, testified that the movement was sudden and unexpected. This is consistent with Mr. Morabito's testimony that he grew fearful and felt threatened by the belligerent picnickers and would also account for Claimant's inability to move away from the ATV. I find that the mechanism of Claimant's injury was within the class of reasonably foreseeable hazards that the ATV operator had a duty to prevent. However, Claimant's own conduct and the conduct of other picnic guests contributed to the accident and the liability must be shared accordingly.

Damages shall be apportioned as follows: 60% to the State for the negligent conduct of its employee; 30% to the Claimant for her conduct, specifically, standing in close proximity to a running motorized vehicle and placing her foot or knee on the tire; and finally 10% to the Hutchins picnic guests that created an atmosphere of potential violence directed at the sole State employee present at the shelter.

Let Interlocutory Judgment be entered accordingly. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied. The parties are directed to contact the Court to schedule a conference for the purpose of discussing the remaining issues and setting a date for the trial of damages.

October 7, 2003
Rochester, New York

Judge of the Court of Claims

[1]In Corrigan v State of New York, UID #2002-010-056, Claim No. 101457, Claimant alleges malicious prosecution and abuse of process regarding the prosecution of vehicle and traffic violations arising out of a hit and run accident and claimant's ATV.