New York State Court of Claims

New York State Court of Claims

BLOOM v. THE STATE OF NEW YORK, #2004-033-525, Claim No. 106520


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):

James J. Lack
Claimant's attorney:
McCabe, Collins, McGeough & Fowler, LLPBy: Brian P. Hickey, Jr., Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Alan Berkowitz, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

On June 2, 2002, at approximately 11:30 a.m., Rita Bloom (hereinafter "claimant") and her husband arrived at Jones Beach State Park, walking from the parking field onto the beach via a long boardwalk ramp which extended onto the beach. They were at the beach for approximately an hour, when claimant decided to return to her car to put her handbag in it using a different ramp to cross over the boardwalk than when she had gone to the beach. This ramp was shorter than the first ramp and ended on an angle into the sand. There was a handrail, but it terminated approximately two feet from the end of the boardwalk. She testified that she did not observe any warning signs about using the ramp. As claimant stepped up onto the bottom of the ramp, she lost her balance, fell backward reaching out for the rail, but it was too far away to save her from falling.

Doug Averill, the next witness to testify, was called by both the claimant and the defendant. Averill, a nineteen-year employee of the defendant, was, at the time of the claimant's incident, the east end park manager of Jones Beach State Park. He acknowledged that the photos of the ramp in question were fair and accurate (Exhibits 1, 2, 4, 6 and 7), including the fact that the ramp sloped down into the sand and the handrail ended approximately two feet from the end of the ramp. He testified that this ramp had a problem keeping sand at the bottom, because it kept eroding away, resulting in a significant drop.

Averill stated that prior to the claimant's incident he had received two complaints about the ramp's condition (Transcript p. 43).[1]
The first complaint was approximately three weeks prior to this incident and the second just a week before (Transcript p. 43). Each time he received a complaint he ordered sand to be deposited at the ramp and directed his employees to check the area of the ramp every day for erosion problems (Transcript p. 41). Averill declared that erosion could occur at any time, depending on weather (Transcript p. 57). The witness was notified of the claimant's accident and inspected the area shortly after the incident, noting that a drop from the ramp to the sand of approximately two feet. His estimation of the height difference was also contained in the Patron Accident Report (Exhibit 10).
The last witness to testify on claimant's behalf was an engineering expert, Richard Heimer. Heimer visited the scene in October 2002 and took measurements. He found that the ramp in question had a slope of "one foot up for every ten feet back, which is a steep slope. The New York State Building Code requires railings on anything steeper than one part in twelve" (Transcript p. 89). The witness noted other problems with the ramp. First, it should flatten out at the bottom and the rails should continue to the end. Further, because of the ramp's width, an additional railing should have been put in the middle. Heimer noted that these problems were in violation of the New York State Building Code. In his expert opinion, the ramp constituted a hazard.

Other than adopting Averill as its own witness, the defendant did not call any witnesses or experts to testify.

As the owner and operator of the park, the State's duty is to use reasonable care in maintaining the property in a reasonably safe condition to prevent the occurrence of foreseeable injuries (
Basso v Miller, 40 NY2d 233). The duty of care is limited by claimant's reasonable expectations under the circumstances. The defendant's obligation in such a situation is to make the premises as safe as they appear to be so that claimant can fully comprehend and see the risks which will be assumed (Drew v State of New York, 146 AD2d 847; see also Walter v State of New York, 185 AD2d 536).
According to
Mochen v State of New York, 57 AD2d 719, 720:Negligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of claimant to show affirmatively by competent evidence that the injury complained of was caused by reason of some breach of duty by the State. Negligence must be proven.
It is incumbent upon claimant to establish: the existence of a forseeable dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that damages were sustained
(Gordon v American Museum of Natural History, 67 NY2d 836).
The defendant argues that the condition did not constitute a defect or dangerous condition in order to impose liability. In addition, defendant argues that the condition alleged to be dangerous was an open and obvious condition and, therefore, claimant assumed the risk of attempting to use the ramp.

It is the particular facts and circumstances of each case which will determine whether a dangerous or defective condition exists (
Guerrieri v Summa, 193 AD2d 647).
However, a property owner may not be held liable in damages for
" ‘trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection' " ( Guerrieri v Summa, 193 AD2d 647, supra, quoting Liebl v Metropolitan Jockey Club, 10 AD2d 1006; see also, Hecht v City of New York, 89 AD2d 524, mod on other grounds 60 NY2d 57; Mascaro v State of New York, 46 AD2d 941, affd 38 NY2d 870; Levine v Macy & Co., 20 AD2d 761) (Marinaccio v LeChambord Rest., 246 AD2d 514, 515).
In addition to examining the photographs and documents in evidence, I have found the testimony of the witnesses Averill and Heimer particularly informative in reaching my determination. Since the defendant did not call any witnesses, the testimony and expert opinion of Heimer remains uncontroverted. Based upon the entirety of his testimony, as the finder of fact, I find that his opinion concerning the safety of the ramp is based on its physical properties, regardless of any violations of the New York State Building Code. I also find that Averill was aware of a continuing problem with the ramp and the erosion of the sand at the bottom of the ramp, and therefore, that the defendant was aware of a constantly changing condition at the ramp. Otherwise, Averill would not have had the location monitored on an daily basis.

In conclusion, I find the condition at the ramp constituted a dangerous condition of which the defendant had actual notice and that that condition was the proximate cause of claimant's injury.

However, a landowner has no duty to warn of an open and obvious danger that can be readily observed by the use of one's senses (
Tagle v Jakob, 97 N.Y.2d 165); "[u]nder such circumstances, the condition is a warning in itself" (Tarricone v State of New York, 175 AD2d 308, 309).
Therefore, I also conclude that the condition as it existed on the date of the incident was an open and obvious condition, for which the claimant must share equally in the responsibility. The ramp was not closed, and, therefore, available for the public to use. However, the claimant in observing the condition of the ramp overestimated her own ability in attempting to use the ramp as configured on the date of the incident.

Accordingly, the Court apportions liability 50% to defendant and 50% to claimant with respect to the injuries caused by the condition.

A trial on the issue of damages will be scheduled as soon as practicable.

Let interlocutory judgment be entered accordingly.

June 29, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]All transcript references are to the trial transcript.