New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2004-015-382, Claim No. 103074, Motion No. M-67579


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:
O'Connell & AronowitzBy: Andrew Safranko, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 10, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion pursuant to CPLR 3212 for an order granting summary judgment and dismissing the claim on the ground that the State may not be held liable for claimant's injury as a matter of law is granted. On June 19, 1999 claimant Michael Smith was a guest at the Ponderosa Campsite, a privately owned and operated camping and temporary residence facility located in the Town of Chateaugay, Franklin County. At approximately 11:30 a.m. on that date claimant, at the urging of his son, mounted a wood and vinyl sided water slide which the owner had constructed near one of three man-made ponds on the property. The slide was approximately 76[1] feet in length and was elevated for most of its length approximately six to seven feet above the sloping terrain over which it was constructed. The slide terminated approximately eighteen to twenty-four inches above the pond's surface. According to the claimant the water level at the end of the slide on the day in question was slightly over 3 feet deep and the pond's bottom was said to be generally hard and smooth. For purposes of this motion the Court will assume the facts regarding the happening of the accident as alleged by claimant Michael Smith at his examination before trial (see, claimant's Exhibit C).

According to the claimant, on the morning in question he took his two children and several other children fishing at a small fishing pond until approximately 10:45 a.m. At that time the group decided to go swimming in a different pond which claimant referred to as the swimming hole. Claimant and the children swam in an area of the pond where there was located a fixed swimming platform. Claimant testified that he surveyed the depth of the water surrounding the platform and determined that the bottom of the pond sloped gradually from the shore to a depth of between ten and twelve feet surrounding the platform (claimant's EBT p. 97-98). The pond water was clear enough to see the bottom (p. 97) which claimant described as "basically a smooth surface . . . no rocks" (p. 100). The swimmers, including claimant, stayed in the water near the platform until approximately 11:15 - 11:30 a.m. (p. 102) when they exited the water and sat at a picnic table near the slide. At some point in time claimant's daughter went to the campsite store and asked to have the water to the slide turned on as directed on a sign attached to the slide (p. 108).

Claimant watched the children using the slide and observed that the water about the terminal end of the slide was sufficiently deep to allow its use by the children without incident or injury. He admitted, however, that he did not check the depth of the water near the slide (p. 127). After watching the children for approximately one-half hour claimant decided that he would participate. He mounted the ladder and positioned himself at the top of the slide with his feet pointing downhill. Then, at the urging of his son, claimant repositioned himself in a kneeling position at the top of the slide and began to slide down the structure. He described what transpired next at p. 138 of the deposition transcript:
A. Okay; I was going down the slide, moving at a semi-rapid pace. I got down towards the bottom of the slide, the water in front of me had depleted. I went to – I started to stop, so I went to grab for the sides and when I did my body was turned to the right and I was tossed off the end of slide.
Claimant entered the water head first striking the bottom of the pond and suffering severe neck and spinal cord trauma.

The claim filed on September 15, 2000 seeks to impose liability on the defendant for breach of an alleged duty on the part of the New York State Department of Health (DOH) to approve, inspect and monitor the subject slide to ensure the safety of patrons and visitors to the Ponderosa Campsite. Specifically, the claim alleges that in issuing a compliance permit[2] to operate a water slide at the campsite the defendant through DOH certified to the public, including claimant, that the owner of the campsite (Walter Whalen) was in compliance with applicable codes, rules and regulations governing water slides and that the subject slide was safe for use by patrons and visitors to the campsite. The claim further alleges that the defendant through its officer, agents, servants, employees, departments, agencies and/or other personnel negligently and carelessly inspected the defective water slide; allowed the water slide to be operated in a dangerous and hazardous manner; permitted the operation of the water slide in a dangerous and defective condition; and failed to mandate a lifeguard at said location. It is asserted in the claim that the defendant had actual and/or constructive notice of the defective, unsafe and dangerous condition of the water slide and that claimant's injuries were proximately caused by the defendant's negligence, carelessness and breach of duty. The defendant moved for summary judgment seeking dismissal of the claim on the ground that the State is immune from liability as a matter of law.

It has long been recognized that the State of New York is immune from liability for the exercise of discretion involving the issuance of a permit under the State Sanitary Code (see, Miller v State of New York, 125 AD2d 853; Burgundy Basin Inn v State of New York, 47 AD2d 692, lv denied 37 NY2d 706). It has also been said that "[t]he State's waiver of immunity and assumption of liability has never extended to redress individual wrongs which may have resulted from an error in the exercise of judgment by an officer of the State in the performance of his duty. (Bernkrant v State of New York, 26 AD2d 964; Granger v State of New York, 14 AD2d 645; Matter of Jervis Corp. v Secretary of State of State of N.Y., 43 Misc 2d 185; Bertch v State of New York, 193 Misc 259)" (Gross v State of New York, 33 AD2d 868, 869).

In Miller v State of New York, supra the claimant's decedent died in a 1984 fire which ravished a building on the grounds of a resort hotel in Sullivan County. For several years prior to the fire the State Department of Health had issued permits pursuant to the State Sanitary Code (10 NYCRR Parts 1-24) to operate the building as a temporary residence as defined in 10 NYCRR subpart 7-1. Claimant therein sought to predicate liability upon the State's failure to enforce the fire safety requirements of the Sanitary Code as they related to temporary residences and in continuing to issue temporary residence permits despite having inspected the premises and found fire safety violations as early as 1979. The claimant in Miller alleged that the decedent "relied upon the State's continued issuance of permits as an implicit approval of the fire safety conditions of the building" (Miller, supra, at 853). The trial court granted the State's motion to dismiss the claim on the grounds that the State's actions in issuing the temporary residence permits were discretionary rather than ministerial acts for which the State was immune from tort liability and on the further ground that the State's duty regarding code enforcement was owed to the general public at large and no liability attached absent proof of a special relationship between the State and decedent. The Appellate Division, Third Department affirmed dismissal of the claim on the basis of governmental immunity and found it unnecessary to address the alternative ground for dismissal. Leave to appeal was denied by the Court of Appeals at 69 NY2d 608.

This Court reaches a similar conclusion here. Although the Court understands the gravity of the injuries suffered by the claimant, DOH's annual inspection of the campsite and issuance of the temporary residence/bathing beach permits from 1981 through 1998 are indistinguishable from the issuance of the Sanitary Code permits in Miller, supra. As the Third Department noted more recently in Hahn v City of Rensselaer, 166 AD2d 795 at 796:
It is well settled that, where a municipality makes a quasi-judicial or discretionary determination involving the 'exercise of reasoned judgment which could typically produce different acceptable results', it will be absolutely immune from liability for its conduct, regardless of the reasonableness or propriety of such conduct (Tango v Tulevech, 61 NY2d 34, 41; see, Miller v State of New York, 125 AD2d 853, 854, lv denied 69 NY2d 608; Rottkamp v Young, 21 AD2d 373, 376-377, affd 15 NY2d 831).
Such immunity applies even where the issuance of the permit was "clearly erroneous under the regulations to the point of being wantonly negligent and an abuse of discretion" (see, Miller, supra at 855). The issuance by DOH of the temporary residence permits and the lifeguard waivers pursuant to the Sanitary Code in the instant case were discretionary and not wholly ministerial acts to which governmental immunity attached and upon which no liability can be based.

Claimant has provided no authority whatsoever for the assertion that the DOH had a legal duty to notify the New York State Department of Labor (DOL) of the existence of the water slide at the campsite thereby invoking an obligation on the part of DOL to conduct an annual inspection of the slide. As the defendant argued on the motion, the duty of the Commissioner of Labor to approve, inspect and permit the operation of an amusement device is triggered by the owner's or operator's permit application (see, Labor Law § 870-e (1) and 870-h). No such application was made here and there is no proof that the DOL initiated an inspection of the subject water slide on its own. Absent such proof no liability against the defendant may be imposed based upon any action or inaction of the Department of Labor (see, Gonzalez v Barbieri, 271 AD2d 407; Boland v State of New York, 218 AD2d 235).

There being no basis upon which to predicate liability against the State the defendant's motion for summary judgment dismissing the claim is granted.

February 10, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 28, 2003;
  2. Affirmation of Belinda A. Wagner dated October 28, 2003 with exhibits;
  3. Affidavit of Andrew R. Safranko sworn to November 19, 2003 with exhibits;
  4. Affidavit of Milton Costello sworn to November 19, 2003 with exhibits;
  5. Reply "affidavit" of Belinda A. Wagner dated December 1, 2003.

[1]When initially constructed in 1981 the slide was approximately 62 feet in length. Another 14 feet was added to the run when the original aluminum sliding surface was replaced with vinyl in 1986 (see, Whalen EBT Transcript pp. 62-68, claimant's Exhibit E).
[2]See defendant's Exhibit I.