New York State Court of Claims

New York State Court of Claims
WEESE v. THE STATE OF NEW YORK, # 2004-031-060, Claim No. 98976, Motion No. M-66667, Cross-Motion No. CM-66850


Defendant's motion for summary judgement granted. Claimant's motion for partial summary judgment denied as moot.

Case information

UID: 2004-031-060
Claimant(s): JEREMY WEESE, a Minor, by his mother, KATHLEEN WEESE
Claimant short name: WEESE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 98976
Motion number(s): M-66667
Cross-motion number(s): CM-66850
Claimant's attorney: MORAN & KUFTA
Defendant's attorney: HON. ELIOT SPITZER
New York State Attorney General
Third-party defendant's attorney:
Signature date: June 2, 2004
City: Rochester
Official citation: 18 Misc 3d 1115(A)
Appellate results: 17 AD3d 1176
See also (multicaptioned case)


The following papers, numbered 1 to 16, were read on motion by Defendant for summary judgment and cross-motion by Claimant for partial summary judgment:

1) Defendant's Notice of Motion ( M-66667), filed April 14, 2003;

2) Affidavit of Lisa A. Coppola, Esq., sworn to April 11, 2003, with attached exhibits;

3) Affidavit of Kuruvilla Zacharias, P.E., sworn to April 9, 2003, with attached exhibits;

4) Defendant's Memorandum of Law, dated April11, 2003;

5) Claimant's Notice of Cross-Motion (CM-66850), filed May 22, 2003;

6) Affirmation of James J. Moran, Esq., dated May 19, 2003, with attached exhibits;

7) Affidavit of Deborah Yurgelun-Todd, Ph. D., sworn to May 19, 2003;

8) Affidavit of Philip F. Frandina, P.E., L.S., sworn to May 13, 2003;

9) Claimant's Memorandum of Law, dated May 19, 2003;

10) Reply Affidavit of Lisa A. Coppola, Esq., sworn to June 16, 2003, with attached exhibits;

11) Affidavit of Kelly M. Thompson, P.E., sworn to June 16, 2003, with attached exhibits;

12) Defendant's Reply Memorandum of Law, dated June 16, 2003;

13) Supplemental Affirmation of James J. Moran, Esq., dated September 18, 2003, with attached exhibits;

14) Supplemental Reply Affidavit of Lisa A. Coppola, Esq., sworn to September 29, 2003, with attached exhibits;

15) Correspondence from Claimant's counsel, dated November 25, 2003;

16) Correspondence from Defendant's counsel, dated December 9, 2003, with exhibit.


Claimant Kathleen Weese is the mother and natural guardian of Jeremy Weese. On February 21, 1997, when Jeremy Weese was 14 years old, he visited a 17 or 18 year old friend in Stanley, New York. The two boys had intended to walk to another friend's house, but on the way decided to stop and observe a nearby construction site. The boys' intent that day was to go to the construction site where the State had removed a railroad bridge over Route 245 in the Town of Stanley. The bridge had been removed several months earlier. The boys had been to this site before, prior to the bridge being taken down, and wanted to go "check out" the site now that the bridge was gone.

They approached the site from the old entrance to the bridge and encountered a steel guardrail barricade with a red diamond warning sign posted just behind the barricade. They bypassed this barricade and sign, and then came to an orange, plastic construction fence. They went over this. Then, while attempting to climb down from the top of the hill above the site to sit on the top of the bridge abutment over the road, Jeremy lost his balance and fell approximately 15 feet to the road below and sustained serious injuries.

Claimant then commenced this action, alleging that Defendant was negligent in: 1) creating a hazardous condition; 2) failing to erect an adequate fence or barricade at the hazard; and 3) failing to adequately warn of the danger.


In its motion papers, Defendant concedes that the incident occurred, but asserts that the State may not be held liable for Claimant's injuries. Defendant seeks summary judgment based upon the following reasons: 1) Claimant failed to establish a prima facie case of negligence; 2) Defendant is entitled to qualified immunity because its plan for removal of the bridge and the safety measures it involved were developed upon an adequate study and had a reasonable basis; and 3) General Obligations Law 9-103 (the "recreational use" statute) insulates the State from liability.

Claimant has filed a cross-motion for partial summary judgment on the issue of liability, claiming that there is no question of fact relating to the Defendant's liability for negligence. I will address Defendant's motion first.


In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Defendant posits that General Obligations Law 9-103 bars Claimant from recovering in this action. Defendant correctly points out this statute provides that a landowner "owes no duty to keep the premises safe for entry or use by others for hunting, fishing, canoeing, boating, trapping, hiking . . .," and that this statute does apply to public property (Sega v State of New York, 60 NY2d 183). Defendant argues, therefore, that, because Claimant was hiking at the time of his accident, the statute insulates Defendant from liability for Claimant's fall.

Claimant asserts, however, that he was not hiking at the time of the accident, but rather walking to a friend's house. Though the distinction may be difficult to make, a few courts have opined that walking is not the same as hiking, and a person injured while walking is not barred from recovery by the statute (see Gough v County of Dutchess, 167 Misc 2d 568; Guillet v City of New York, 131 Misc 2d 578). Furthermore, Claimant argues that, even if the Court determined he was hiking at the time of the accident, the Defendant's property was not suitable for this activity, thereby removing the protection of the statute for Defendant (see Iannotti v Consolidated Rail Corp., 74 NY2d 39).

I find that questions of fact exist regarding whether Claimant was hiking and whether the area immediately surrounding the accident site was suitable for this activity. Therefore, to the extent Defendant requests summary judgment pursuant to General Obligations Law 9-103, the motion must be denied.


Defendant maintains that Claimant has failed to demonstrate prima facie evidence of negligence. This is because: a) the State owed no duty to Claimant because the hazard was open and obvious; b) the alleged negligence was not the proximate cause of Claimant's injuries; and c) Claimant's conduct in intentionally circumventing the barricades was not foreseeable.

The State, as landowner, owes a duty to maintain its property in a reasonably safe manner for the benefit of persons on the land. This duty is based on standard negligence principles (Basso v Miller, 40 NY2d 233). Under New York law, a landowner owes a duty to persons coming upon his or her land "to keep it in a reasonably safe condition, considering all the circumstances, including the purpose of the person's presence on the land and the likelihood of injury " (Christmann v Murphy, 226 AD2d 1069, 1070, lv denied 89 NY2d 801). To establish a prima facie case of negligence, the Claimant must "demonstrate either that the defendants created the dangerous or defective condition which caused the accident, or that they had actual or constructive notice of the condition" (Dima v Breslin Realty, 240 AD2d 359, 360).

Here, there is no dispute that Defendant created the alleged hazardous condition. Further, both parties agree that the hazard was open and obvious and known to Jeremy at the time of his accident. The law is well settled that a Defendant has no duty to warn of an open and obvious danger that is readily discernable by the use of one's own senses (Tagle v Jakob, 97 NY2d 165; Cimino v Town of Hempstead, 66 NY2d 709). Defendant argues that, because the alleged hazard was open and obvious, it owed no duty to Claimant. Claimant argues that, because Defendant created that hazard, it owed Claimant a duty to eliminate the hazard. I cannot agree with either position. While Defendant had no duty to warn Claimant of the danger, the fact that the condition was open and obvious did not relieve Defendant of its duty to take reasonable precautions to protect Claimant from whatever dangers the defect might present (Pelow v Tri-Main Dev., 303 AD2d 940; Williams v Chenango County Agric. Socy., 272 AD2d 906). However, as stated above, the duty requires only reasonable precautions, and Defendant did not owe a duty to eliminate the hazard.

In Gustin v Association of Camps Farthest Out, et al. (267 AD2d 1001), a 12 year old girl was injured when she fell 25 feet from a ladder attached to a water tower. The tower was located within a large wooded campground. The plaintiff in that action, the girl's father, brought suit against the organizers of the summer camp his daughter had attended and the owners of the camp property, alleging, inter alia, that they had failed to erect a fence or some other barrier around the tower to prevent his 12 year old daughter from climbing upon the attached ladder. The Appellate Division, Fourth Department, determined, however, that Defendant did not have a duty to erect a barricade to prevent access to the ladder and that the girl's actions in ignoring the obvious danger related to climbing the tower were not foreseeable. The Gustin Court, citing several previous cases and quoting from Culkin v Parks & Recreation Dept. of City of Syracuse (168 AD2d 912, 918), opined:

"Even assuming, arguendo, that defendants were negligent, we conclude that the reckless conduct of Laura [the little girl] was the sole proximate cause of her injuries . . . . Laura knew the dangers inherent in climbing the tower and ignored those dangers. Thus, her reckless conduct 'was an unforeseeable, superseding event sufficient to absolve defendants of liability'." (Gustin v Association of Camps Farthest Out, et al., 267 AD2d at 1003)

Similarly, in Duclos v County of Monroe (258 AD2d 925), the Appellate Division, Fourth Department, addressed a case very similar to the one at hand. In that case, the plaintiff fell into a gravel pit located adjacent to a public park operated by defendant county. The plaintiff was aware of the pit, but ventured too close to the edge, lost his balance and fell over the edge. The lower court had granted summary judgment to the defendant county, as well as the owner and operator of the gravel pit. Citing Macey v Truman (70 NY2d 918, 919), the court opined "[b]ecause plaintiff's testimony establishes that the cliff was an open and obvious danger and that plaintiff fully appreciated the danger it presented, defendants . . . had no duty 'to protect plaintiff from the unfortunate consequences of his own actions'" (Duclos v County of Monroe, supra at 926).

Claimant has attempted to distinguish Duclos by pointing out that, in this matter, Defendant created the alleged hazard by removing the railroad overpass. This distinction is without merit, however, as the gravel pit into which the plaintiff in Duclos fell was also a hazard that had been created by the defendants who owned and operated the gravel pit. Having said this, I am compelled to point out that I am aware that the Appellate Division, Fourth Department, in the subsequent case of Donohue v Seven Seventeen HB Buffalo Corp. (292 AD2d 786), distinguished that case from Duclos by saying that Duclos "involved a natural condition on the property of defendant landowners rather than a man-made hazard that may be eliminated through the exercise of reasonable care" (Donohue v Seven Seventeen HB Buffalo Corp., supra at 787). As it appears to me that the gravel pit in Duclos, an area that had been excavated to remove gravel, is not a natural condition, I am somewhat disturbed by this language. However, the hazard in Donohue was a roll of fencing that had been left on the sidewalk of defendant's property, as opposed to a permanent physical change in nature of the premises. I find that the bridge abutment from which Jeremy fell is more akin to the "natural" hazard of the gravel pit in Duclos than the "man-made" hazard of the improvidently placed roll of fence in Donohue.

I find that the actions taken by Defendant to guard against the danger created by the bridge abutment were reasonable. Jeremy saw the barriers and intentionally bypassed them so that he could climb down to the bridge abutment. He was aware of the danger of falling but, nonetheless, intentionally undertook these actions. Jeremy's actions in bypassing the barriers that Defendant had placed in front of the hazard and attempting to climb down to the bridge abutment constituted "an unforeseeable, superseding event sufficient to absolve [Defendant] of liability" (Culkin v Parks & Recreation Dept., supra at 914).

Further, while the State has a duty to maintain its highways in a reasonably safe condition, it is not the insurer of the safety of its roads which means that no liability will attach to the State unless its ascribed negligence is the proximate cause of the accident (see Redcross v State of New York, 241 AD2d 787, 788-789, 660 NYS2d 211, 213, lv denied 91 NY2d 801, 666 NYS2d 563, 689 NE2d 533; Hough v State of New York, 203 AD2d 736, 610 NYS2d 659). Jeremy's conscious decision, knowing the nature of the bridge abutment and the danger it presented, to bypass the barriers set in place by Defendant and to attempt to climb down to the bridge abutment was the sole proximate cause of his accident (see also de Peña v New York City Tr. Auth., 236 AD2d 209).

I should note that in opposing this motion Claimant has submitted the affidavit of a neuropsychologist who opined that a 14 year old boy would not appreciate the danger of the hazard in the same manner that an adult would. On this point, Defendant argues that this opinion is entitled to no weight because Claimant's neuropsychologist is generalizing, because she never actually met with or interviewed Claimant, and therefore, the opinion is merely a useless generalization. In any event, Claimant's arguments that Jeremy's tender age of 14 somehow prevented him from appreciating the danger he placed himself in, is unavailing.

In de Peña v New York City Tr. Auth. (236 AD2d 209), the Appellate Division, First Department, addressed a similar argument relating to a 13 year old boy's decision to enter an underground subway tunnel with some friends to view a graffiti mural which had been painted on the tunnel wall. The boy gained access to the tunnel through an improperly secured emergency access door. In trying to avoid detection by the motorman of a passing train the boy fell onto an electrified rail and was electrocuted. The plaintiff in that action had argued that defendant should have properly secured the emergency door to prevent the boy from acquiring access to the tracks. The court, however, addressed the ability of the 13 year old boy to appreciate the danger in which he placed himself.

"In denying defendant's motion for summary judgment, the nisi prius court held that there were questions of fact as to whether these 13 year olds had the maturity, experience and judgment to appreciate the peril of their actions, and whether defendant had taken reasonable precautions to prevent such foreseeable injury. We disagree. The recklessness of this activity should have been so obvious, even to City lads of such tender age, that the case should have been dismissed before trial. As we held in Tillmon v New York City Hous. Auth. (203 AD2d 19), compensation should not be granted where the proximate cause of death or injury is an individual's own willful behavior in engaging in hazardous and illegal conduct (in that case, "elevator surfing" by a 13 year old). The subway system, though necessary to the lifeblood and commerce of this City, includes areas that are so obviously fraught with danger for the general public that a trespass into such areas, as here, makes the case one of those instances where a solitary conclusion may be drawn from the given set of facts, and where the question of legal causation may be decided as a matter of law (Wright v New York City Tr. Auth., 221 AD2d 431, lv denied 88 NY2d 806)." (de Peña at 210).

Similarly, in this instance, the danger was obvious and was admittedly recognized by Jeremy. Jeremy's own willful and reckless choice to bypass the barriers and climb down to the bridge abutment in spite of this obvious danger was the sole proximate cause of his accident.

Further, as Claimant's conduct demonstrated that he intended to circumvent the barriers set in place by Defendant, and expose himself to the risk of falling from the bridge abutment, Claimant's argument that an additional fence or barrier would have prevented the injury by dissuading Claimant from gaining access to the bridge abutment is speculative (see Omer v Rodriguez, 294 AD2d 202).


The State's liability is further limited by the fact that, in the field of traffic design engineering, it is accorded a qualified immunity which can only be overcome with proof that a highway planning decision evolved without adequate study or lacked a reasonable basis (Weiss v Fote, 7 NY2d 579). Weiss is the seminal case that is often cited for the proposition that, because the State's determinations regarding public works and improvements are quasi judicial or discretionary, the State is not liable for a "failure to exercise this power or an erroneous estimate of the public needs" (Weiss v Fote, supra at 584, quoting Urquhart v City of Ogdensburg, 91 NY 67). Municipalities are granted qualified immunity from liability for roadway planning decisions unless the plan was "evolved without adequate study or lacked reasonable basis" (Weiss v Fote, supra at 589; see also Affleck v Buckley, 96 NY2d 553, 556; Friedman v State of New York, 67 NY2d 271, 284). Immunity arises not based on the municipality's ultimate decision, but because the discretionary determination " 'was the result of a deliberate decision-making process' " (Norton v Village of Endicott, 280 AD2d 853, 854, quoting Holmes v City of Elmira, 251 AD2d 844).

In support of its motion, Defendant presented the affidavits of Kuruvilla Zacharias, P.E., and Kelly M. Thompson, P.E., to demonstrate that the project was well planned and in conformance with applicable standards. In response, Claimant submitted the affidavit of Philip F. Frandina, P.E., L.S., to establish that the study lacked an adequate basis because it failed to properly protect pedestrian traffic. The construction in this matter involved the removal of a railway overpass bridge by the Department of Transportation ("DOT"). The reference point for measuring the reasonableness of DOT's decisions is the Manual of Uniform Traffic Control Devices (" MUTCD") (17 NYCRR ch. V) (Zecca v State of New York, 247 AD2d 776 ; Grover v State of New York, 294 AD2d 690).

Mr. Frandina opined that the red diamond marker installed by Defendant was "inadequate and inappropriate as a warning to pedestrians" (Frandina affidavit paragraph 6). However, as set forth above, the State had no duty to warn of this open and obvious condition and Jeremy was quite aware of the existence of the hazard (see Tagle v Jakob, 97 NY2d 165).

Mr. Frandina also stated that the barricade used by the State was only 3.5 feet high and should have been 5 feet high. This, he asserts, is in violation of the requirements of the MUTCD (Frandina affidavit, paragraph 5). Defendant disputes this issue, pointing out that the barrier in question was a "C-2 installation" and it "exceeded the minimum requirement of three feet in height [required by MUTCD 292.2(c)(5)]" (Thompson affidavit, paragraph 33). A review of the section in question confirms Defendant's position as to the minimum height requirements for a C-2 installation.

Be that as it may, Claimant's expert failed to set forth how this difference in height had any relevance to Jeremy's accident. Jeremy did not fail to notice the barrier, he intentionally circumvented it. Although not argued specifically, any implication that Jeremy was able to circumvent the 3.5 foot high barrier but would not have attempted, or would have failed to circumvent the 5 foot high barrier is mere speculation. Something more than just a disagreement between experts is needed to show that an adequate basis was lacking (see Affleck v Buckley, supra, at 557; 732 NYS2d 625; 758 NE2d 651). Mr. Frandina's mistaken opinion regarding the minimum height requirement of the C-2 barrier aside, Claimant has failed to indicate any way in which Defendant failed to comply with the MUTCD.

The record, as a whole, and the affidavit of Mr. Zacharias specifically, indicate that the State did adequately address these issues. The Zacharias affidavit sets forth the planning that went into the project and indicates that Defendant did consider how the project might effect or endanger pedestrians. The State chose the safety measures used accordingly. Defendant does admit that it originally planned to remove the abutments and grade back the entire area to remove the hazard, but, as this would have been a complex operation involving appropriations from four nearby property owners, the State decided against it. Defendant also indicates that the project, including the barricades, was in full compliance with the MUTCD, generally accepted engineering methods and other applicable standards.

In cases such as this, "something more than a mere choice between conflicting opinions of experts is required before the State . . . may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (Weiss v Fote, supra at 588). "Strong policy considerations underpin the qualified immunity doctrine set forth in Weiss" and this directive "should not be lightly discounted" in situations where the State has conducted a study by qualified employees (Friedman v State of New York, supra at 285).

In this case, there is no question that the State did undertake a reasonable course in its decision to remove the bridge abutment. After months of planning that involved numerous individuals contributing to, reviewing and modifying the proposed plan, including design and safety issues, a final project plan was set in place and executed. I find that there is insufficient evidence to establish that the study conducted by the State in preparing for the project was plainly inadequate or without a reasonable basis. As stated by the Honorable Francis T. Collins in Hannon v State of New York, Ct Cl, April 29, 2003 [Claim No. 102289], UID #2003-015-576):

"the State may not be found liable for a failure to act which would have only resulted in providing the public more complete protection. While any public roadway may theoretically be made safer, the duty of the State is fulfilled by the exercise of reasonable care and foresight and liability may not be established upon proof which represents a mere choice between conflicting expert opinions." (Citations omitted)

I cannot say that DOT's decisions not to erect a chain link fence and not to reduce the grade of the bridge abutment were unreasonable. There also was no showing that DOT's plan for removal of the bridge violated accepted traffic design or engineering principles. Therefore, assessing this record, I find that qualified immunity applies and liability cannot be imposed upon the State (Zecca v State of New York, supra).

Based upon the foregoing it is:

ORDERED, that Defendant's motion for summary judgment is granted and the claim is dismissed. The Clerk is directed to close the file. Claimant's motion for partial summary judgment is denied as moot.

June 2, 2004

Rochester, New York


Judge of the Court of Claims