New York State Court of Claims

New York State Court of Claims

MENNELLA v. THE STATE OF NEW YORK, #2004-033-533, Claim No. 107995


Synopsis



Case Information

UID:
2004-033-533
Claimant(s):
JOSEPH A. MENNELLA, an infant over the age of 14 years, by his parent and natural guardian, CAROLYN E. MENNELLA, and CAROLYN E. MENNELLA, individually
Claimant short name:
MENNELLA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107995
Motion number(s):

Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Kujawski & DellicarpiniBy: Mark C. Kujawski, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 23, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This is a timely filed claim by Joseph A. Mennella[1] (hereinafter "claimant"), for injuries sustained on the grounds of Pilgrim State Psychiatric Hospital (hereinafter "Pilgrim"), West Brentwood, New York, on December 8, 2002. The claim of Carolyn E. Mennella is derivative in nature. On July 27, 2004, a bifurcated trial was held as to the issue of liability.

Claimant's case consisted of two witnesses, claimant and New York State Forest Ranger David Kallen. Ranger Kallen testified that he was working at Pilgrim on the December 8, 2002. He began his tour of duty at approximately 2:00 p.m. and was patrolling the woods and grounds of Pilgrim. According to Ranger Kallen, there is a heavy amount of illegal ATV (all terrain vehicle) traffic on the grounds. On the incident date, claimant was driving a 6 x 6 utility style ATV. Ranger Kallen estimated that the top speed would probably be about 30 m.p.h. on a straight, flat surface. At the time that Ranger Kallen was patrolling, he was with an Environmental Conservation Officer, Matt Harger, who was also on an ATV.

Ranger Kallen and Officer Harger encountered claimant and a group of his friends who were riding on trails on Pilgrim grounds. The officers were stopped along a trail when claimant and his friends passed. Ranger Kallen states that he called out to identify himself as a police officer and asked the group to stop. The riders kept driving. Ranger Kallen could then see Officer Harger riding alongside claimant, heard him identify himself as a police officer and directed claimant to stop. Ranger Kallen was following along behind at a lesser speed (about 15 m.p.h.) than claimant and his group were traveling. The other riders, who initially were driving away, stopped on the trail. However, claimant accelerated and sped away. Officer Harger stopped with the large group on the trail, while Ranger Kallen followed the path claimant had taken. Ranger Kallen continued at approximately 15 m.p.h. even after claimant accelerated away. Ranger Kallen could see claimant on the trail in front of him but lost him for a few seconds when the trail "snaked" around.

As Ranger Kallen came around the curve, he saw claimant had crashed into a chain link fence. Claimant was approximately 20 to 35 feet from where Ranger Kallen came out of the "S" turn (Transcript p. 27). Upon seeing claimant, Ranger Kallen said he immediately applied his brakes, which locked up and caused him to skid into the rear of claimant's ATV.[2] Ranger Kallen's ATV drove up the back of claimant's ATV and turned on its side. Ranger Kallen testified that he was able to jump off of his ATV because it was turning over slowly.

Claimant's version of the events leading to the contact between the two vehicles differs. Claimant states he went to Pilgrim with friends. There were seven people on five ATV's. Claimant states that he had been riding approximately three times a week for a year. He admits the ATV was owned by his father and that he was not licensed to use it. Claimant states that he was riding at Pilgrim approximately two hours. Further, he stated that while he had never ridden at Pilgrim before, he saw others on that day riding, as well as evidence of heavy ATV use. In fact, claimant said he rode on what appeared to be a man made track complete with jumps.

According to claimant, he and his friends were on the way to exit the Pilgrim grounds when they encountered the officers. Claimant states that his ATV was a racing machine (Transcript p. 96) and he was traveling at about 35 m.p.h. when he encountered the officers. Claimant testified that one of the officers pulled alongside him and was telling him to stop and was gesturing to the trail to pull over. Claimant was following his friends while the officer was attempting to stop them. Eventually, claimant states that his friends stopped and pulled over, but he accelerated away because he was "scared" - he did not know the person was a "cop" and he was "afraid of being hurt" (Transcript p. 95). Claimant accelerated to 45 m.p.h. (Transcript p. 85). The officer who was beside claimant turned away and stopped with the group of claimant's friends.

Claimant proceeded down the trail, which he states has an "S" turn in it. Claimant approached the turn and was half way through it, when he looked back and saw no one following him. Claimant approached the fence to go around it and exit to the street (defendant's Exhibit M), when he slowed down and was hit in the rear. Claimant then fishtailed into the fence. After the accident, claimant came to realize that he was hit by Ranger Kallen.

The Court finds no credibility in claimant's version of the events that occurred and rejects his testimony as not worthy of belief. Claimant states that he was too scared to stop his ATV in the middle of the day for someone he did not know. Yet claimant was following his friends and saw them pull over and then he decided to accelerate to 45 m.p.h. Nor does the Court believe that claimant was not aware that Officer Harger was a police officer. According to the testimony, Officer Harger's uniform was not obstructed by a jacket. The Court also finds Ranger Kallen's testimony that the officers identified themselves to be credible.

The Court finds claimant to have no regard for the law or authority figures. On cross-examination, claimant freely admitted that he always drove his ATV on public streets even though neither he nor the ATV were licensed for that type of travel. In addition, claimant admits that he saw the signs prohibiting such vehicles on Pilgrim grounds. Claimant clearly disregarded the signs and drove his ATV where it did not belong.

General Obligations Law §9-103(1)(a) states that a property owner "owes no duty to keep the premises safer for entry or use by other . . . or to give warning of any hazardous condition or use of or structure or activity on such premises" to persons entering for certain recreational activities. The operation of an ATV is one of the named activities. The State of New York is provided the protection of GOL §9-103(1)(a) (See Sega v State of New York, 60 NY2d 183).

Each of the parties testified that the Pilgrim grounds were heavily used by ATV vehicles. Ranger Kallen testified that he was aware of the ATV use and that is why he was patrolling the grounds. Claimant testified that he saw evidence, including a man made race track, of heavy ATV use. The GOL provision protects the State from liability for the claimant's difficulty in navigating the exit as he came off of the "S" turn (See Wiggs v Panzer, 187 AD2d 504; and Albright v Metz, 217 AD2d 123).

Claimant stated that he accelerated to 45 m.p.h. and did not slow down until he was approaching the fence. The Court is mindful that this was claimant's first time riding on the Pilgrim grounds and that he was not familiar with the trails. The Court finds that claimant was traveling at a high rate of speed and was unable to handle the "S" turn at the high rate of speed and head toward the exit. Claimant's negligence was the sole cause of his accident with the fence as well as the accident with Ranger Kallen.

Based on the foregoing, the Court finds for the defendant and the Claim is dismissed. All motions not specifically ruled upon are denied. The Clerk is directed to close the file.


December 23, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims



[1]At the time of the incident claimant was 15 years old. The matter was brought by his mother as his parent and natural guardian.
[2]According to both witnesses, as well as the photos in evidence, the ground consisted of snow, ice and mud.