New York State Court of Claims

New York State Court of Claims

MASLINE v. THE STATE OF NEW YORK, #2004-032-502, Claim No. 104521


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:
Vincent M. Barone, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Joel L. Marmelstein, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
March 31, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

On July 28, 1999, claimants Randall and Kelly Masline were camping at Jacques Cartier State Park in Morristown, New York. Their camping site was located on the "upper loop" and the most direct way to get to the closest bathroom facilities was to take a trail down a hillside. At approximately 11:45 A.M., claimant Randall Masline[1]
rode his bicycle down this hill. The bicycle collided with a rope or line that had been placed by the State across the trail approximately six to eight feet before the beginning of a paved pathway leading to the bathroom. The rope, or line, became enmeshed in the gears of the bicycle, and claimant was thrown over the handlebars. He was seriously injured.
At trial of this claim, claimant stated that he and his extended family had camped at Jacques Cartier State Park many times in the past. On this occasion, claimant, his wife and their two sons; his mother and stepfather; and his sister, her husband and their two children were at adjacent campsites. They had selected sites on the Upper Loop because it was near and up the slope from an area where the children usually congregated to ride their bikes. The rest of the family, including claimant's two sons, had arrived at the campsite earlier in the day on July 27, 1999. Claimant and his wife worked that day so they arrived around midnight that night. They did not go down to the bathroom area after they arrived.

The following morning, when they arose about 9:00 or 9:30 A.M., the children were already away from the campsite riding their bikes. Claimant and his wife had breakfast with the rest of the family, read the newspaper, and in general enjoyed the sunny, warm day. At approximately 11:45 A.M., claimant, dressed in swim shorts and a t-shirt and carrying nothing in his hands, got on his bike to go to the bathroom facilities. He did not wear a helmet because he did not think of this as a full bike trip. Claimant considered himself to be an experienced rider, having ridden bikes and motorcycles since he was seven years old. Prior to this date, he had never had a cycling accident as an adult.

The bicycle he was riding was a mountain bike that he had recently purchased from another family member, who had originally purchased it within the past six months. Claimant had the bike for approximately two months and rode it on paved surfaces and on his dirt driveway at home. It was equipped with all-terrain tires, front shocks, and a seat or body shock absorber. According to claimant, the bike was in excellent condition and the brakes worked well.

Despite the fact that it was a wooded hillside, claimant was able to see the bathhouse clearly from the campsite by looking down the trail. He was also familiar with the route down from the Upper Loop camping area to the bathhouse because in past years he, the children and friends rode all over the campgrounds, taking this and every other path or trail. This path was also used to get to an area where the children liked to ride their bikes. Claimant estimated that on this date he went down the path slower than he had in the past, because he was going from a dead stop, not continuing a ride where he had already built up momentum (Tr, 45). Since it was a weekday, there were no other people around and he was able to go straight down the trail leading to the facilities.

Claimant testified that he was looking straight ahead during the trip and that once on the slope he did not pedal at all but simply coasted (Tr, 43). As he reached a point where the slope leveled off, near where the path intersected with a gravel dirt driveway coming from the east (his left), he applied his rear brakes to slow down a bit. Then, "milliseconds after I let go of my back brakes, I saw this white rope in front of my tire" (Tr, 42). He tried to reapply the brakes but was already pitching forward and the rear tire was off the ground. Realizing that he could not avoid falling, he attempted a "tuck and roll" maneuver, but "it just kind of launched me up in the air" (
id.). When he came down, the impact was to the top of his spine and shoulder area. Immediately after the fall, as he was lying on the ground, he observed that the rope had wrapped around the primary gear of the bike, where the pedals are located. Claimant stated that he had not seen the rope when he looked down the trail from the campsite and that he did not see it as he was going down the slope until "milliseconds" before his bike struck it. In prior years, he had never seen a rope in this location, nor had anyone told him on this occasion that a rope had been installed. On cross-examination, claimant acknowledged that he was aware there was a paved roadway leading from the front of the family's campsites and down a slope to the east, where it met a smaller paved pathway that led directly to the bathhouse. He conceded that this was an alternate route that could have been used to get to that facility. Further downslope, on the path or trail that claimant was using, below the rope, there was another short paved walkway that led directly to the bathhouse (see, Exhibit 3 [blue line]). Similar pathways led from the bathhouse in other directions as well.
Timothy Brown, claimant's stepfather, testified that he and his family had camped at Jacques Cartier State Park on many occasions in the past. He and his wife had been there with another couple the prior month. He also recalled a full family visit, probably in 1998, when he spent a great deal of time watching the grandchildren ride their bikes in an area where the path leveled, not far from where claimant's accident occurred. At that location there was a clearing in the woods and an area of piled-up dirt that created something similar to a ramp, and the children enjoyed riding their bikes over it. This location is depicted in Exhibit 10, although by the time that picture was taken the dirt pile had been leveled off.[2]
The "ramp's" location is also noted with a green X on Exhibit 3 (see, testimony of Richard Fitzsimmons, infra). The ramp area is on the west side of the pathway down which claimant rode his bicycle, only a very short distance uphill from the accident site. According to Mr. Brown, the family had decided to camp at the Upper Loop campsites on this occasion so that they would be near this "ramp" where their children liked to play. From those campsites, the most direct route to the ramp area would have been down the top portion of the unpaved path or trail used by claimant on the morning in question. It could also be reached, however, by traveling east along the roadway in front of the campsites and then turn to the right onto a dirt and gravel driveway. This driveway, which had previously been used by garbage trucks (see, testimony of Richard Fitzsimmons, infra), intersected the path directly opposite the sandy "ramp" area (see, Exhibit 3, area opposite green X).
Mr. Brown stated that he saw claimant as he got on his bike preparing to go down the hill but did not see him actually leave. When he heard screams, he went down on foot and observed claimant lying down, in obvious pain, just beyond the dirt and gravel driveway. The bike was some distance away, on its side, with a rope entangled in the front sprockets near the pedals. After park personnel arrived to assist his stepson, he looked around the area again to try to determine what had happened. He observed the rope still entangled in the bike sprockets but could not recall if it was secured to anything. He also recalled seeing posts or stanchions, approximately two feet tall and possibly twenty feet apart. These were still upright on either side of the pathway just north of the twin trees (
see, Exhibit 3). This location is where the path or trail turns into a short paved pathway leading to the bathhouse (Tr, 94). Mr. Brown saw no signs in the area, and there were no markings or any shiny ribbon on the rope. He did observe several marks that could have been skid marks made by claimant's bike.
Mr. Brown stated that he had first seen similar uprights with a rope between them the prior month. That was at a different location, however, closer to where he was staying at the time. On this trip, he had no occasion to observe this barrier in the area where claimant fell, because he had not gone or accompanied anyone down the trail to the bathhouse. Mr. Brown stated that he had never, at any time, seen any signs prohibiting the use of bikes on hillsides in this area of the park.

Claimant's wife, Kelly Masline, testified that she and her mother-in-law had been talking to her husband immediately before he rode his bike down the slope to go to the bathhouse. She had not been down to the bathhouse herself between then and the time they arrived at the campsite the night before nor had she and her husband been to the park before in 1999. She did not see him head down the slope but heard his scream and ran down to assist him. As she recalled, he was lying somewhere in the vicinity of the twin trees, which are just beyond the intersection of the path and the old gravel and dirt driveway, and his bike "wrapped up in the rope" was nearby lying on its side (Tr, 123). Mrs. Masline also observed the upright stanchions and testified that she had never before seen a similar barrier across that or any other path in the park. She further testified that she had never seen any signs prohibiting the use of bicycles on that hillside.

Mrs. Masline had been at Jacques Cartier State Park with her family in previous years, and she stated that on several occasions, including a visit in 1998, they had biked around the entire park, including going down this hillside path leading from the paved roadway to the bathhouse
. She had also observed her children and their friends using a bike jump, which she described as "a dirt sand pile" that had a little lip on it, in the area on the west side of the path just above where claimant fell. Directly opposite on the east side of the path was a worn dirt and gravel driveway that led to the main road. Mrs. Masline stated that she considered her husband to be physically fit and very adept at riding many types of vehicles: dirt bikes, snowmobiles, motorcycles, mini bikes, go-carts and bicycles (Tr, 118).
Richard Fitzsimmons, Park Manager for Jacques Cartier State Park both in 1999 and at the time of trial, testified that July 28, 1999 had been his day off, so that he was not at the park when claimant was injured. He stated that the rope and stanchion barrier at the accident site had been placed there the prior month in order to keep vehicles from driving up next to the bathhouse building[3]
and to protect an area that had been seeded (Tr, 191). He could not recall if he or some of his employees had made the decision to erect the barricade and where to place it (Tr, 218). At his deposition, Mr. Fitzsimmons stated that when the rope was initially installed, it has some "flagging" on it. He described this as reflective ribbon attached in such a way that it hung down from the rope and its purpose was "[t]o inform people that it was there" (Exhibit 16-B, p 25). He stated that the flagging had to be replaced from time to time because children often took it.
Mr. Fitzsimmons identified on Exhibit 3 the location where a concrete pad and dumpster had been located prior to 1997. This apparently created the "ramp" area in which children, particularly, enjoyed riding their bikes. The old dirt and gravel driveway opposite this area was used by trucks coming to empty the dumpster. In 1997, the dumpster was removed, leaving a concrete pad roughly 8 feet square and 6 inches thick. Later that concrete pad was removed and the area filled up with sand and dirt.
Claimant's expert, Douglas McCord is a professional landscape architect with twenty-three years experience that includes developing parks. He testified that he prepared the Exhibit 3 schematic which shows the layout of the relevant portion of Jacques Cartier State Park. It was based on the original survey/site plan (Exhibit A), a visit to the location, and photographs that he took during the visit.

Mr. McCord stated that an underlying principle of any park planning is protection of the health, safety and welfare of the people using the park. One of the methods of doing this, especially in areas that contain approaches to a building, is to limit any potential conflicts between vehicles, bicycles, and pedestrians. Where a barricade is installed to restrict automobiles, or bicycles, from a particular pathway or roadway, visibility is the foremost concern: "It needs to command attention. It needs to command your respect. And in other words, it can't be something that can be knocked down, stepped over, stepped through" (Tr, 134).

A barricade erected for this purpose should also allow a reasonable time for the person driving or riding to make an adequate response and avoid injury. It needs to be high enough to be visible from a distance and to have reflective properties so that it can be seen at night or poor lighting. In addition, barricades should be uniform throughout a park, so that they are immediately and clearly understood. The New York State Manual For Uniform Traffic Control Devices ("MUTCD") and the New York State Building Code are examples of the sources of information on the proper construction of barricades.

With respect to the rope barricade depicted in Exhibits 8 and 9, Mr. McCord stated that it failed to meet any of the desired qualities of a good barricade. It is below the height that would be easily visible at eye level for those approaching it whether walking, on a bicycle or in a vehicle. It had no reflective qualities. It was not of a color that made it stand out from the background. It was also not wide or substantial enough to stand out from the background. In Mr. McCord's professional opinion, the rope barricade used at this location was ineffective and posed a danger to those using the trail. The type of barricade that he believed should have been used would be similar to the Type 1 barricades in the MUTCD. This type of barricade is a board or other solid material 8 inches high by at least 2 feet in length, placed at least 3 feet off the ground, and has both striping and reflectors.

Ronald Idzi, a licensed professional engineer who testified for defendant, stated that he visited the park in 2003 and performed a site survey, resulting in a small contour map of the area and a profile of the path that was identified to him as the bicycle path (Exhibit A). He determined that the elevation difference from the top of the hill, where the campsites abutted the paved road, to the approximate location where claimant fell was 9 feet. The linear distance was 62 feet. The profile of the probable path taken by claimant's bicycle shows that at the location where claimant's bike fell, there was a slope of 3.1 per cent which is very slight. Further back the slope was much steeper, around 7.3 per cent. Based on his measurements, Mr. Idzi concluded that on the 22 feet of the path immediately before the accident site, the slope changed slightly over 6 inches. Most of the drop in elevation, therefore, occurred on the upper 40 or so feet of the pathway.

Barbara S. Abrahamer, a civil engineer with the Department of Transportation, is in charge of authoring and maintaining Title 17, NYCRR Chapter 5, commonly referred to as the MUTCD, although that precise term actually refers to a Federal manual (Tr, 222). Ms. Abrahamer is also responsible for interpreting questions regarding the regulations to DOT staff members and local municipalities and for developing statewide sign programs such as the heritage sign system. It was her opinion that the provisions of the MUTCD have no applicability to the instant case. That manual applies to highways, which are defined in section 118 of the Vehicle & Traffic Law as ways "open to the use of the public for purposes of vehicular traffic" (Tr, 226-227). Vehicles, defined in section 159 of the Vehicle & Traffic Law, do not include modes of transportation moved by human power (Tr, 227). The path she observed on her visit to the park was "certainly not a path open to the public, much less vehicular travel" (
id.). Ms. Abrahamer also stated that the MUTCD contained nothing referred to as a Type 1 barrier, such as had been described by Mr. McCord. She agreed however with his general description of the requirements for traffic control devices: uniformity, ease and speed with which they can be understood, and visibility. Height is also important, although the optimal height would vary according to purpose, she stated. Signs on bicycle paths or bicycle/pedestrian paths should be 4 feet high (17 NYCRR §201.5).
As a landowner and operator of recreational facilities, the State has a proprietary duty to exercise reasonable care and to maintain its buildings and grounds in a reasonably safe condition (
Basso v Miller, 40 NY2d 233 [1976]). The landowner must also, within a reasonable time period, correct dangerous conditions either that it creates itself or of which it has actual or constructive notice (Reinemann v Stewart's Ice Cream Co., 238 AD2d 845 [3d Dept 1997]). Liability will result only if a consideration of the particular facts and circumstances leads to the conclusion that the defect posed an unreasonable risk of harm and possessed the characteristics of a trap or nuisance (Maloid v New York State Elec. & Gas Corp., 257 AD2d 712 [3d Dept 1999]) or that it was so out of character with the surroundings as to be a foreseeable cause of harm (Tripoli v State of New York, 72 AD2d 823 [3d Dept 1979]). A landowner can be negligent in failing to announce, draw attention to, or properly warn of changes in a certain location that increase the risk of harm posed to persons familiar with the area (Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605 [3d Dept 2003]). At the same time, however, the injured party may be held entirely or partially responsible if he or she failed to use reasonable care to observe the surroundings to see what was there to be seen and failed to use such care to avoid injury as an ordinarily prudent person would have done in the circumstances (id. McGraw v Ranieri, 202 AD2d 725 [3d Dept 1994]).
When an injury arises in the context of a sporting activity, the question of assumption of risk must be considered, and, in the instant case, defendant urges that that doctrine precludes liability. Persons who voluntarily engage in sporting activities and who are aware of the risks inherent in such activities are deemed to have consented, by their participation, "to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" (
Turcotte v Fell, 68 NY2d 432, 439 [1986]). In connection with such activities, a landowner's duty is "to exercise care to make the conditions as safe as they appear to be [for if] the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" (id.). For the doctrine to apply so as to foreclose any liability, the injured party must have consented to "those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]).
With respect to the sport of bicycling, it has been held, however, that bicycle riders do not assume the risk of encountering a tree root jutting up into what appeared to be a well traveled pathway (
Weller v Colleges of the Senecas, 217 AD2d 280 [4th Dept 1995]); or a concealed gap between a flat surface and adjoining inclined ramp (Torres v City of New York, 271 AD2d 306 [1st Dept 2000]); or a chain or wire suspended across a park trail (Sauray v City of New York, 261 AD2d 601 [2d Dept 1999]). Foreseeable risks inherent in the sport of bicycling have been held to include encountering loose gravel on the shoulder of a road, which was present and plainly visible and which the rider had traversed for some distance prior to his accident (Kensy v Village of Southampton, 206 AD2d 506 [2d Dept 1994]) or hitting a brick while riding through an area known as the "Brick Yard," with which the rider was familiar and which had thousands of bricks strewn around the grounds and trails (Lupica v State of New York, UID #2000-019-530, Claim No. 98714, Motion Nos. M-61979, CM-62228, August 28, 2000, Lebous, J.).
Defendant in this case also refers to a regulation of the Office of Parks, Recreation and Historic Preservation, 9 NYCRR §375.1(i), which provides as follows: "No person shall use other than trails, overlooks, roads and other ways established and provided for public use by the office." The regulation goes on to state that no liability shall attach to the State for injuries to persons "resulting from the use of other than such established trails, overlooks, roads or ways." This provides an absolute defense, according to defendant, because claimant was not using a trail, road or other way established and provided for public use by park officials.
The central issues in this case are: whether the State fulfilled its duty to maintain the park premises in a reasonably safe condition; whether it had a duty to warn of the presence of the stanchions and rope (perhaps by posting signs, perhaps by making the barricade itself more visible and eye-catching); and whether it created a dangerous defect or unacceptable risk of harm by erecting the barrier. These questions all relate to one issue: whether it was foreseeable that persons using the park would ride bicycles down the path that claimant used to go to the bathhouse. Every indication in the record supports the conclusion that this was an expected and foreseeable use of an established pathway.

Claimant and his family members all testified that they rode their bicycles down that pathway in previous years, and they had reason to remember this particular one because it was one of only two ways to get to the sand "ramp" area where their children liked to play. In fact, they selected their campsites in order to be closer to it. According to the testimony, that "ramp" area could be accessed only by using the old gravel and dirt driveway or by using the path that began across the road from their campsite. Because they spent so much time there in the past, it is also probable that they knew and frequently used the lower part of the pathway to get to the bathhouse when needed. Notably, none of these campers, who were familiar with the area, indicated any surprise that claimant would leave in the direction of the wooded slope when he was on the way to the bathhouse.

The most telling information comes from the State's own actions and references, however. When Mr. Idzi referenced his visit to the site in 2003 to perform a topographic survey, he stated that his job was to develop a small contour map of the area to provide a profile of "the path that was pointed out to me as the bicycle path" (Tr, 176). In addition, the placement of the stanchions and rope across the pathway was, according to Mr. Fitzsimmons, to "keep vehicles from driving up next to the building" (Tr, 191). As the only building in this area was the bathhouse, this statement is meaningless unless the vehicles were in the habit of coming across the dirt and gravel driveway (formerly used by the garbage trucks) and turning south to approach the bathhouse driving on the path and then on the paved portion leading to the bathhouse. Thus, it was expected that there would be vehicular travel along that route, which the stanchions and rope were designed to stop. It is also evident that park officials expected pedestrian and bicycle traffic along this route because one of the paved pathways leading away from the bathhouse went up this slope and became, when the pavement ended, the trail that continued past the driveway and "ramp" area up to the top of the slope where the campsites were located. It is difficult to conceive of a reason the State would have built a paved pathway going north from the bathhouse if it was not intended that park patrons use that route to go to and from the bathing facilities. Similar paths led to the east, where they connected with the service road, and to the southwest and southeast, leading apparently to a different part of the park.

The Court concludes, therefore, that the path or trail used by claimant to go from his campsite to the bathhouse was not, as defense counsel contends a "rutted embankment" (Defendant's post trial brief, p 5). It was an established trail that was either provided for the use of the public, or that had become such an established way over a period of time during which it was consistently used and its use known to park officials.[4]
The stanchions and rope were erected approximately halfway between the Upper Loop campsites and the bathhouse. After the accident, the stanchions were still in place on either side of the path just north of the twin trees
(i.e., immediately south of the level area where the dirt and gravel driveway met the path and a short distance above the start of the paved pathway leading to the bathhouse). The purpose of this barrier could only be to stop traffic, both vehicular and bicycles, that park officials knew would otherwise make use of this path to access the bathhouse.[5]
This lightweight barricade was meant to be seen, but it was not particularly visible. On the day of the accident, no person reported seeing any reflective flagging on the rope, a feature that was supposed to be there, and nothing else about the stanchion and rope arrangement, its shape, size or color, was particularly eye-catching or noticeable. Its height was inappropriate for anyone riding a bicycle (and possibly for anyone driving a vehicle). Consequently, the Court finds that the structure erected by the State posed an unreasonable risk of harm to those using the trail, at least those traveling it by bicycle. It possessed the characteristics of a trap or nuisance. Inasmuch as it was foreseeable that park patrons would be making use of the downward sloping path on bicycles, the Court holds that it was negligent to construct the stanchions and rope in the fashion that the defendant did, so that it was poorly visible, and to omit any warning signs indicating that there had been a significant and dangerous change in the trail. That this negligence was a proximate cause of claimant's injury is self-evident.

Had claimant been looking straight ahead and carefully attending to details of the trail several feet in front of him he might have seen the barricade in time to stop, turn to the side, or at least minimize the effects of the collision. Mr. Idzi's topographic profile of the pathway indicates that the downward slope leveled off for a short distance before the rope barrier so he had time to brake. In the Court's view, however, claimant bears little responsibility for this accident. He was in relatively familiar territory, at a State park that was to be used freely for recreational activity. He was following an established pathway that led to a structure that campers were expected to visit easily and frequently. In addition, as noted above, the stanchions and rope, a very new feature at this location, were not highly visible and lacked even the reflective flagging that the rope was intended to have.

The Court holds that the State was negligent in creating a dangerous, barely visible and unexpected barrier at a location where it was entirely foreseeable that bicycle riders would be riding, at a moderate to fast rate of speed, and this negligence was a significant proximate cause of the injuries suffered by claimant when his bicycle encountered the barrier. In apportioning liability for these injuries, the Court concludes that defendant is responsible for 80 per cent of the liability and claimant for 20 per cent of the liability. The Chief Clerk is directed to enter interlocutory judgment, and the matter will be set down for trial on the issue of damages as soon as practicable.

Let interlocutory judgment be entered accordingly.

March 31, 2004
Albany, New York

Judge of the Court of Claims

[1] The claim of Kelly Masline is derivative in nature and, unless otherwise indicated, the term "claimant" refers to Randall E. Masline.
[2] The Court draws no inference from the fact that the sand pile was subsequently leveled. In any event, since the sandy "ramp" area was not involved in this accident, the reason for its leveling would be irrelevant to this action.
[3] Although he did not explain how this would occur, the diagram of the area (Exhibit 3) shows that vehicles could, in theory, go onto the old gravel and dirt driveway from the main roadway and turn left near the sandy "ramp" area and proceed down the path, over the short paved walkway, to the bathhouse.
[4] As a result of this finding, defendant's argument that 9 NYCRR §375.1 protects the State from liability is rejected. In making use of this path to get to the bathhouse, claimant was making use of an established way that, at least until a month previous, had been provided for public use.
[5]If the only goal was to stop vehicular traffic, a barricade could have been erected across the dirt and gravel driveway, preventing traffic from turning onto the path but leaving the path open for normal bicycle traffic.