New York State Court of Claims

New York State Court of Claims

COLLINS v. THE STATE OF NEW YORK, #2004-029-356, Claim No. 102837


Case Information

In the Matter of the Claim of MARY COLLINS, individually, and as parent and natural guardian of CHEQUEL MORRELL, an infant
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:
Norman Landres, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: John M. Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 4, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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 claimant[1]
, 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 mother.

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 condition.

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 denied.

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 denied.

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 214).
The Appellate Division, Third Department stated in
Mesick v State of New York (118 AD2d 214, supra at 217):
"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, supra, 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 defendant.

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 risk (
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 Emerald Enters., 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 Enters., 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
White Plains, New York

Judge of the Court of Claims

[1] 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.