COLLINS v. THE STATE OF NEW YORK, #2004-029-356, Claim No. 102837
In the Matter of the Claim of MARY COLLINS, individually, and as parent and natural guardian of CHEQUEL MORRELL, an infant
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
STEPHEN J. MIGNANO
Norman Landres, Esq.
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: John M. Healey, Assistant Attorney General
February 4, 2004
See also (multicaptioned
This claim for personal injury arose on August 1, 1998 from an incident at Lake
Welch Beach (hereinafter Lake Welch), part of the Harriman State Park, located
in Stony Point, New York. The trial was bifurcated and this decision deals only
with the issue of liability.
The evidence adduced at trial established that
, then two years of age, was spending the day with her aunt and uncle, Ellen and
Adrian Faucette. In addition to claimant, the Faucettes were accompanied by
their five children and four nephews. The Faucette group arrived at Lake Welch
around midday. They parked in the parking lot behind the bathhouse and had
lunch in an area of the park in front of the bathhouse next to Field Number 3.
Mr. Faucette marked Exhibit 31 with an "x" to indicate where he parked his
vehicle and a "y" to indicate where the family had their picnic. After lunch,
Mr. Faucette and the children went to the beach and stayed there for 2½ to
3 hours. Prior to leaving, Mrs. Faucette decided to take the children to see
the ducks at a pond adjacent to the picnic area. According to Mrs. Faucette,
the children were not wearing footwear because they had just come from the
beach. The children hurried off toward the pond. Mrs. Faucette was
approximately 20 to 25 feet behind claimant when she heard claimant scream.
Mrs. Faucette testified that her view of Chequel was temporarily obscured by a
picnic table. As she ran toward Chequel, she saw a stranger pick the girl up
and the stranger and a woman brought Chequel to her. Mrs. Faucette observed
that Chequel's feet were burned. The woman advised Mrs. Faucette that she
observed Chequel pick up charcoals with her hands.
Samuel Faucette, one of Ellen and Adrian Faucette's sons, also testified at
trial. Samuel testified that on August 1, 1998 he was 11 years old and on the
date of trial he was 17 years old. Samuel stated that as the children ran
toward the pond he was the last child and his mother was about 25 feet behind
him. He stated that Chequel was approximately 10 feet in front of him. He said
he heard Chequel scream. When he got to her, he saw that she was standing in
gray coal embers and there were about five coals present. He saw Chequel touch
the charcoal with her feet. A man picked her up and brought her to his
In addition to the three Faucettes, the only other witness to testify at trial
was Dennis Haight. Mr. Haight testified that he has been employed by the New
York State Office of Park and Recreation for 31 years. He was the Park Manager
of Lake Welch on August 1, 1998.
The evidence established that on the date of the incident there were permanent
cooking grills in the picnic area at Lake Welch (see Exhibits 1, 2 and 3) and
the park patrons were also allowed to bring portable grills to the park for
their use, except on the beach. Mr. Haight stated that at least one large trash
barrel, painted red, was located in the picnic area near the accident scene.
The barrel contained the following notice: "Dump Hot Charcoal Here" (see Exhibit
4). He stated that he does not know where the barrel was actually located on
August 1, 1998. Mrs. Faucette stated she saw trash barrels in the picnic area
but did not see any red barrels for the disposal of hot charcoals such as the
one depicted in Exhibit 4. Mr. Faucette also stated he did not see the red
barrel shown in Exhibit 4 on August 1, 1998 but he did see it when he returned
to Lake Welch with claimant's counsel on August 18 or 19, 1998, approximately
2½ weeks after the subject incident. At that time, the barrel was located
approximately 50 to 75 yards away from where Chequel was injured.
Mr. Haight testified that it was a violation of park regulations to drop
charcoal on the ground. He also stated that during the three years prior to the
incident involving claimant, there were about five accidents per year involving
hot charcoals. He stated he had seen evidence of hot embers on the ground in
the picnic area (see Exhibit 6) and that hot embers constitute a hazardous
At the close of claimant's evidence the State moved to dismiss the claim on the
basis that claimant failed to establish a prima facie case by a preponderance of
the evidence. The Court reserved decision on the motion. It is now
The defendant did not present any witnesses at trial but did read into the
record a portion of the deposition transcript of Mary Collins, Chequel's mother.
At the conclusion of its case the State made a motion to dismiss on the basis
that claimant failed to prove by a preponderance of the evidence that the State
was negligent and that such negligence was the proximate cause of claimant's
injury. The Court also reserved decision on this motion, which is also now
The State, while not an insurer of the safety of the public using its parks
Mondore v State of New York
, 12 Misc 2d 12), has a duty to exercise
reasonable care under the circumstances in maintaining its property in a safe
condition (Kush v City of Buffalo
, 59 NY2d 26, 29; Basso v Miller
40 NY2d 233, 241; Mesick v State of New York
, 118 AD2d
The Appellate Division, Third Department stated in
Mesick v State of New York
(118 AD2d 214, supra
"It has long been the law of this State the ‘[t]he risk reasonably to be
perceived defines the duty to be obeyed' (
Palsgraf v Long Is. R.R. Co.
, 248 NY 339, 344). Applying these
principles to a landowner, the factors to be considered in determining to whom a
duty, if any, was owed are the likelihood of injury to another from a dangerous
condition or instrumentality on the property and the foreseeability of a
potential plaintiff's presence on the property (Kush v City of Buffalo
, p 30)."
In the present case, the evidence adduced at trial established that the Lake
Welch Park Manager, Mr. Haight, was aware of hot coals and hot embers on the
ground at the park. He was aware that this was a problem because people,
especially children, walked around the park barefoot and could step on the hot
coals or embers. Mr. Haight also testified that for the period from 1995
through the date of the subject incident he was aware of about five incidents
per year involving people being burned by hot coals or embers. However, since a
Patron Accident Report was only required if the injury required medical
attention more extensive than minor first aid, it is entirely possible there
were more. He identified Exhibits 25, 26, 27 and 29 as Patron Accident Reports
prepared by his employees involving children who had been burned by hot coals.
These are sufficient to demonstrate notice of the condition to the
The Court finds that claimant has established by a preponderance of the
credible evidence that (1) the presence of hot coals was a dangerous condition,
(2) the State was aware of the likelihood of injury (based upon prior similar
incidents) and (3) the claimant's presence on the property was foreseeable as
Lake Welch was open to the public. Therefore, the Court finds that a duty of
care arose on the part of the State.
Resolution of the issue of breach of duty requires a factual weighing of the
severity of potential injuries against the burden on the landowner to avoid the
Kush v City of Buffalo
, 59 NY2d 26, 29-30, supra
). In the instant
situation, the potential for injuries when coming into contact with hot coals or
embers is obvious. The risk could have been avoided by the simple expedient of
adding more barrels for the disposal of hot coals. In the face of these facts,
the Court finds the State's action in having one barrel for the disposal of hot
coals in the approximately two-acre area of Lake Welch, where this incident
occurred, to be insufficient to fulfill its duty of care (see, Mesick v State
of New York
, 118 AD2d 214, supra
Defense counsel argues in his post-trial memorandum of law that a general
awareness that a dangerous condition may be present is legally insufficient to
constitute notice of the particular condition that caused the injury (
Piacquadio v Recine Realty Corp.
, 84 NY2d 967, 969; Gloria v MGM
, 298 AD2d 355, 356). The Court finds that the present
situation presents a situation akin to those "where a known defect on the
premises is routinely left unattended and causes a recurring hazard (see,
Sweeney v D & J Vending
, 291 AD2d 443 [leaking vending machine];
David v New York City Hous. Auth.
, 284 AD2d 169 [leaks which caused
rainwater to accumulate in a stairwell]; McLaughlan v Waldbaums, Inc.
237 AD2d 335, 336 [unstable supermarket display])" (Gloria v MGM Emerald
, 298 AD2d 355, 356, supra
). The dangerous condition was the
presence of the hot coals and embers of which the State had notice. The failure
to take reasonable steps to guard against injury caused the recurring hazardous
condition and claimant's reasonably foreseeable injury.
Notwithstanding my findings in regard to the defendant's actions, the fact
remains that the adults supervising must also bear some responsibility.
Testimony at trial was undisputed that one adult was apparently the sole
supervision of ten children of varying ages, including the claimant. Given the
circumstances of a large recreation area and varying movements and interests of
ten children, supervision of the entire group by a single adult was a truly
herculean task and, in this context, not reasonable. Therefore, while the
defendant is liable, it is not solely so since the actions of claimant's adult
supervision are also a proximate cause of the accident. I apportion the
responsibility for this unfortunate injury to claimant as 70% to the defendant
and 30% to the claimant's supervision. The Chief Clerk is directed to enter an
interlocutory judgment accordingly.
Counsel for both sides are hereby directed to consult with each other to
establish possible conference dates regarding the outstanding discovery with
respect to the issue of damages and to contact the Court regarding same within
30 days of receipt of this decision. The Court will then set the matter down
for trial on the issue of damages as soon as practical.
February 4, 2004
Plains, New York
HON. STEPHEN J. MIGNANO
Judge of the Court of
As the claim of Mary Collins is derivative in
nature and the infant claimant is the injured party, all references to claimant
will be to Chequel Morrell unless otherwise indicated.