New York State Court of Claims

New York State Court of Claims

MOORS v. THE STATE OF NEW YORK, #2004-028-0004, Claim No. 105612


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:
BRENNAN & WHITE LLPBY: Joseph R. Brennan, Esq.
Defendant's attorney:
BY: Frederick H. McGown, IIIAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 4, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Donna Moors, in this timely filed claim, alleges she was injured on February 18, 2000 when the snowmobile she was operating in the Fourth Lake Campground overturned while she attempted to avoid the Defendant's plow truck which she claims was operated negligently. This decision addresses only the issue of liability.

Donna Moors, a snowmobiler since 1972, testified that on February 18, 2000 she was injured in a single vehicle snowmobile accident as she maneuvered to avoid an oncoming plow truck in the Fourth Lake campground located in Lake Luzerne, New York. That day, after returning home from work, Moors and her housemate, Peter Schermerhorn, packed two snowmobiles onto a trailer and traveled to Wilke's Resevoir in Warren County where they were to begin their snowmobile travels that night with other individuals. The Claimant and Schermerhorn were joined along the way by her brother and her brother's girlfriend, Lisa Faracaro, and two other friends. They all left "The Den", a restaurant in Lake Luzerne, on five sleds. Claimant drove the sled she and Faracaro shared. Their route took the riders across the street from The Den, through the Town of Lake Luzerne parking lot and then into the woods. While riding, Claimant testified, there was no means of communication between snowmobilers.

After traveling approximately 15 minutes through the woods, the group entered the Fourth Lake Campground, an area in which Claimant had previously traveled on snowmobiles approximately "10 times". As they entered the campground it was dark and snowing. Claimant saw "signs all over a lot of trees" and "some had arrows" but acknowledged that she was not paying attention because "she was a follower." At the point the snowmobile trail left the woods and joined the campground road, Claimant testified, she chose to stay on flatter ground because she had a passenger and was driving slowly. She described the flatter ground as being the middle of three trails.

Claimant next testified that she saw two lights in the distance and assumed they were two snowmobiles, so she let off the throttle and was "going very slow." She could not estimate the distance between herself and the lights when she first saw the lights, although she estimated her speed at 15-20 mph. She testified that as the lights got closer she realized it was not a snowmobile but rather a pick-up truck. She hit her brakes, her snowmobile "fishtailed", and she tried to steer to the left to avoid going up the bank [to her right]. Claimant testified, "I flipped over on my left side and I must have put my foot down and it [the snowmobile] landed right on top of me." The truck, which Claimant testified was slowing down, came to a stop right in front of her, "less than 5 feet away." She described the pick-up truck as having an emblem on the side door and being occupied by two men. According to Claimant, the plow blade was down and the truck only had two headlights - there were no other lights on the truck. Claimant testified someone in the truck asked if she was alright.

On cross-examination, Claimant reiterated that the snowplow did not make contact with her or the snowmobile and that she must have put her foot down. She testified the truck driver steered to his left [ her right] and she believed the truck went into a snowbank. Claimant stated "you would never expect to see a truck in the woods when you are snowmobiling" and acknowledged she did not know about the location of the trail in the campground. Claimant, in reviewing photographs of the roadway of the Fourth Lake Campground (Exhibits 1-4[1]
), while disputing that on the night in question the blacktop was visible as depicted in the photographs, identified the snowbank in the photos as being to her right as she traveled through the campground that night.
Claimant's next witness was Peter Schermerhorn, owner of the two snowmobiles he and Claimant were riding on Friday February 12, 2000. Schermerhorn described the trails used that night as being both public and private trails. After leaving the restaurant in Lake Luzerne, Schermerhorn was not sure of the trail used but described it as the one at the "back part of Fourth Lake near horse stables". Although familiar with the area, he did not recall seeing a sign advising when one had entered the campground. The trail system is marked with diamond shaped placards depicting an arrow. This signage is found on trees along the trail. Schemerhorn recalled these signs on the campground property. At the time of the accident, it was snowing heavily with swift accumulation. Schermerhorn stated they were traversing 6 inches of newly fallen snow. Based upon his snowmobiling and camping experience in the area, he described the trail within Fourth Lake Campground as being 25 feet wide. He knew the trail to be a road and "there was an area on the right that was more for snowmobiles". However, the left-hand side of the road was also being used, as that resulted in "a smoother ride". Schermerhorn and Claimant, whose sled he was following, were using the left-hand side as was the truck which traveled in the opposite direction. Throughout the campground the right-hand side was approximately 10 inches higher than the left side. Schermerhorn stated the upper and lower portions were both approximately 12 feet wide. There was no signage or barriers to prevent a snowmobiler from using the lower portion and the only separation was the height differential.
When Schermerhorn first saw the approaching lights, he was 10-15 feet behind Claimant and the truck was 300 feet in front of him. Prior to seeing these two lights, Schermerhorn did not recall any traffic moving in the opposite direction within the campground. Schermerhorn testified that as he slowed down he watched Claimant's sled turn to the left and flip upon its side. At the same time, the truck, which Schermerhorn described as "still coming at her", slammed on its brakes and slid to the right [Schermerhorn's left] into the snowbank and came to a halt facing Claimant's sled about five feet apart. He described the truck as having only two headlights and no other lights on at the time of the accident. After he had picked the sled off Claimant and moved both sleds out of the way, Schermerhorn responded to an inquiry from one of the truck's

occupants that she was okay. After the vehicles stopped, Schermerhorn testified the truck had to back up to straighten out before it could proceed.
On cross-examination, Schermerhorn testified he was unaware that the road was plowed but knew that the snowmobile trail was groomed (leveled) and maintained by a snowmobile club. Schermerhorn knew he was travelling on the road but saw no reason to advise anyone in his party that it was a road as there were snowmobile tracks in the lower portion of the roadway.
Claimant introduced the testimony of Charles F. Johnson, the operator of the pick-up truck, through a reading of a portion of Johnson's pre-trial deposition. At the time of the accident, Johnson was employed by the New York State Department of Environmental Conservation (DEC) as a supervisor. The campground was closed in the wintertime. Johnson testified that the entrance and the loop road are plowed to permit crews to work in the campground and for Johnson to remove snow from the roofs of four buildings. Johnson was aware that one side of the paved camp road was used as the snowmobile trail and the other side was kept open for work trucks to traverse. There were no signs marking which side of the road was the trail.

Johnson testified that as he was travelling approximately 15-20 mph, he came around a corner and saw a snowmobile drop down into the road and shoot back up onto the bank. He locked up his brakes and was sliding when another snowmobile with two people on it dropped into the road, "tipped up, righted itself and went back up on the snowmobile trail". He avoided hitting them as he slowed down. He looked in his rearview mirror, noting, . . . "wow, that [was] a close call" (EBT transcript p 28). Johnson testified the truck did not slow down a lot while he was applying the brakes and indicated there was little room in which to maneuver the truck. He stated that the two persons on the sled were both girls. He also testified it was common practice to plow the Fourth Lake Campground at night if it needed it.

At the conclusion of Claimant's direct case, the Court reserved decision on Defendant's motion to dismiss. The Defendant, also, called Charles F. Johnson to testify on its behalf. Johnson testified his responsibilities in February 2000 included keeping the Fourth Lake Campground open. On the night of the subject accident, Johnson testified he returned to work at 8:00 pm to perform plowing duties after having worked a full shift earlier in the day. Johnson described the truck he used as being equipped with an orange revolving light mounted on the cab and headlights above the plow. Johnson plowed other properties before heading to Fourth Lake Campground around 9:30 p.m. Once at Fourth Lake, he knocked down the "scrapper bank" left by the highway plows, cleared the entrance area five to six cars wide and 150 deep and then plowed to the back of the campsite (a distance of about half a mile), looped around and went back to the entrance to repeat the route. As he plowed, the snow was pushed toward the trail [higher level] to create a berm. Using Exhibit E, Johnson indicated the point where the trail exited the woods and met the campground's paved road[2]. Johnson testified that the accident occurred when the first snowmobile came onto the road and turned towards him and then veered right back onto the trail. In response to seeing the snowmobile, Johnson immediately hit the brakes but the truck continued at the same speed sliding down the road. The truck passed much closer to the second snowmobile, which Johnson testified took the same path as the first snowmobile. The second snowmobile took the berm on an angle tipping the machine, which then righted itself. This he observed in the truck mirrors. Johnson denied stopping or talking with anyone on the snowmobiles.
On cross-examination Johnson maintained he had the orange cab light on and was alone in the truck while plowing. Johnson also testified that the rider of the first snowmobile had stopped his machine and was running back toward the intersection waving his arms, which he observed "off [his] left shoulder." Johnson also described his vehicle's movement as both "a slide" and "a controlled slide".
Defendant also called Gary Edward West, the DEC supervisor responsible for DEC facilities in Warren, Washington and Saratoga Counties. West testified the campground is open from mid-May through mid-September and that physical plant improvements and tree removal are done on either side of the campground season. In the winter months, DEC is required to keep one half of the campground roads open for maintenance crews. West testified regarding the "Adopt a Natural Resource" program by which snowmobiles clubs can be authorized, as here, to maintain snowmobile trails over State land.

Each driver had a duty to operate his or her vehicle with reasonable care under the circumstances, to maintain a reasonable rate of speed, to keep his or her vehicle under reasonable control, to keep a proper lookout under existing conditions, and to use reasonable care to avoid an accident (
see e.g. 1A NY PJI3d 2:77 [2004]; see also O'Hearn v O'Hearn, 55 AD2d 766).[3]
The parties provide two widely divergent accounts of the accident which injured Claimant on February 18, 2000 although all accounts agree, and the Court so finds, that the Defendant's vehicle
did not strike or otherwise come into contact with Claimant or the snowmobile she was operating. Claimant perceived what she believed were two snowmobiles moving towards her as she traveled on what she believed to be, but was not, the snowmobile trail. Once Claimant realized it was a plow truck coming towards her, she attempted to move her snowmobile to the left at a slow rate of speed, staying away from the elevated snowmobile trail. In attempting this maneuver, Claimant was unable to maintain control of her sled, placed her foot to the ground and then had the sled roll onto her and pin her in the snow. In light of the conflicting testimony, and crediting Claimant's version of the events in their entirety[4], including that Johnson was exceeding the speed limit and failed to maintain control of his truck, the Court cannot conclude that such negligence was a proximate cause of Claimant's injuries. Defendant's vehicle was lawfully upon the roadway at the time of the accident and did come to a stop without striking Claimant's overturned snowmobile. Rather, it was Claimant's actions (being on the road or lower level as opposed to the snowmobile trail [higher level], continuing to approach the oncoming lights, her inability to control her sled, failing to pass to the right and her placing her foot onto the ground) that were the sole proximate cause of her injuries (see generally Acovangelo v Brundage, 271 AD2d 885; see also Rubin v Pecoraro, 141 AD2d 525 [reasonable view of the evidence in this case can fairly support the jurors' verdict that although the appellant was negligent as to speed, control, looking or not sounding a horn, that negligence was not a substantial factor in causing this occurrence]). Quite simply, Claimant was unable to safely pass the oncoming vehicle due to her own actions.[5]
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the court finds a lack of credible evidence sufficient to establish that Defendant's negligence either caused or contributed to Claimant's accident.

Accordingly, Claim No. 105612 shall be and hereby is dismissed.

Let judgment be entered accordingly.

All motions not previously ruled upon are denied.

May 4, 2004
Albany, New York

Judge of the Court of Claims

[1] These exhibits were stipulated into evidence subject to the condition that although they did not depict the actual area where the accident occurred, they fairly and accurately depicted the upper and lower trails as referred to in testimony by the witnesses.
[2] Exhibits F-H also depicted the entry point of the snowmobile trail onto the paved campground road. This area is best described as a T-shaped intersection with the trail exiting from the woods and turning right onto the campground road.
[3] Claimant does not pursue a theory of liability premised upon the lack of signage and markings, although she raises same in the post trial submission (Claimant's Memorandum of Law p 6) and the Court would question the viability of same pursuant to the recreational use statute (see General Obligations Law §9-103; Blair v Newstead Snowseekers, Inc. 2003 WL 23097049, 4th Dept , 2003.)
[4] Johnson's testimony was simply incredible. The Court specifically questions his purported ability to identify the two riders of the snowmobile as women, given the testimony that they each wore snowmobile overalls, jackets and helmets with visors. Furthermore, his deposition testimony that he recalled seeing the driver of the first snowmobile jump off his sled and wave his hands to warn the Claimant of the oncoming plow truck is so conveniently self-serving as to nullify much of the remainder of his testimony.
[5] In light of this holding, the Court need not address whether Defendant is to be held to the reckless disregard standard as urged by Defendant and as set forth in Riley v County of Broome, 95 NY2d 455. Assuming arguendo this standard applied to the instant facts, the outcome would be unchanged.