New York State Court of Claims

New York State Court of Claims

GERENDASH v. THE STATE OF NEW YORK, #2004-034-003, Claim No. 103416


Case Information

TAMAR GERENDASH The caption has been amended to reflect the State of New York as the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
FEUERSTEIN & SMITH, LLPBy: Mark E. Guglielmi, Esq., of Counsel
Defendant's attorney:
New York State Attorney General
By: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 6, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has sought to recover for injuries allegedly sustained in a fall at Niagara Falls Reservation Park, now Niagara Falls State Park, on August 15, 2000. By agreement of the parties her liability claim became bifurcated from damage issues, and proceeded to trial on December 15, 2003. At the conclusion of proof the parties requested the opportunity to make post-trial submissions, all to be completed no later than January 9, 2004. Now, upon review of Claimant's testimony, as well as that of Defendant's Park Manager, William M. Purtill, and a landscape architect, Mark Mistretta, as well as the sixteen exhibits introduced into evidence, and having considered the post-trial submissions, the Court will deny and dismiss the Claim, finding as follows.

Claimant is a 54-year-old Israeli citizen who understands little English, and testified in Hebrew through an interpreter. During August 2000 she traveled to this country to accompany an adult son as he underwent an unspecified medical treatment. They then extended their trip to engage in some sightseeing as part of an organized bus trip sponsored by Isra, a tour promoter. On or about August 14, 2000, the tour group, which consisted of some 40 to 50 tourists, drove to Niagara Falls from Toronto. After spending the night at a hotel in Niagara Falls, the group traveled to Niagara Falls State Park at approximately 9 o'clock on the morning of August 15, 2000. There the tour bus took them directly to the Goat Island area of the park, where they exited near a walkway to the three Three Sisters Islands. A guide/translator from the tour company then led some of the tourists across the first two islands to the southernmost island, positioned furthest into the Niagara River above the Horseshoe Falls. Claimant and her son were part of that group, which dispersed randomly to view the area once they had reached the third island.

As Claimant and the others in her group crossed south on the walkway between the second and third islands they passed between two concrete bridge abutments. On the north side of each of those structures, positioned just above the end of a connecting hand railing, Defendant had positioned identical warning signs (Exhibits B, C, D, E) stating in bold black letters, "PROCEED WITH CAUTION." Below that phrase, in somewhat smaller print, were the words
Claimant denied observing those signs as she walked between them, and due to her inability to read English would not have been able to understand the warnings in any event.

After reaching the last island Claimant and her son traveled along an asphalt walkway that extended from the bridge, taking photographs as they walked. When they reached the end of the walkway Claimant observed other tourists from her group on a more remote area of the island. Although Claimant's son remained at the end of the blacktopped area, Claimant proceeded to walk out to the end of a short path to take additional photographs. The pathway was not marked in any way, and consisted simply of a narrow worn area of dirt and rock on the ground, positioned in some areas between gaps in the bedrock itself. At points, small sections of the bedrock formation would protrude above the dirt surface of the path itself. Undisputedly, Defendant did not construct or maintain that pathway. Conversely, it did not install barriers to prevent patrons from leaving the paved walkway.

As Claimant walked out on the path she did not believe that any danger was presented. She took photographs for a few minutes, then turned around to follow the same route back to the paved area. In so doing she followed another tourist who walked approximately two meters ahead of her. During her return to the paved walkway Claimant tripped over a section of rock in the middle of the worn path, which she claimed had been covered with sand or dirt. She lost her balance and was projected forward, falling front-first toward the ground along the path. As she did, Claimant attempted to stop her fall by grabbing at some brush to her left, without success. She struck the ground with the front of her body, sustaining injuries to her left knee and right shoulder areas. Despite her injuries Claimant was able to stand up and walk the short distance back to the paved walkway, where she rested on a section of bedrock while park police and an ambulance were summoned.

In support of her claim that Defendant's negligence caused her fall Claimant testified that as she returned toward the paved area, she did not have her camera in her hands. From her description of how she had attempted to stop her fall with her left hand, and how her extended right hand had struck a rock on the path as she fell, the Court credits that statement. So also, the Court accepts that the weather conditions on that date, which were clear and dry, did not contribute to the occurrence. The Court finds further that Claimant's footwear, a newer pair of lace shoes with low heels, would not have led to her fall. However, the Court must discount Claimant's statement that as she made her way back to the walkway she paid attention and walked carefully, looking down toward the ground itself. As the finder of fact it is the Court's view that Claimant would not have tripped if she had watched her footing as described, and conversely would not have been able to so readily describe the position of the tourist in front of her at that time. In that regard the Court also is influenced strongly by Claimant's son's videotape (Exhibit F), introduced into evidence without objection. The tape reveals a trail that, while primitive, was readily capable of being traversed without incident, as shown by her son's ease of movement as he filmed the video. Although the changing slope, varying width and periodic rock outcrops required attention, neither the tape nor the photographs of the area reveal any trap or hidden defect. In so finding the Court does not believe that Claimant was deliberately untruthful in her testimony, or grossly inattentive in her conduct on the pathway. She was simply too casual in traveling over a natural terrain that required deliberate action. The fact that Claimant readily walked out to the end of the path without incident further reinforces that she did not pay close attention to the ground as she returned to the paved walkway.

Defendant's park manager and the landscape architect both testified regarding the appearance and history of the island. From that testimony, the map in evidence (Exhibit 4), and other exhibits, the Court finds that the island is very small, approximately one hundred feet in its north-south width, and only a few hundred feet in its east-west length. Unlike the first two of the Three Sisters Islands, which are larger and "woody" in their appearance, the outermost island is mostly bedrock, with sparse vegetation. The two defense witnesses also testified that the worn area in question was one of a number of informal pathways between and over sections of bedrock on the island. Mr. Mistretta, who has been to the island some 60 to 100 times, estimated that there were dozens of such paths, created as tourists repeatedly walked along narrow sections of dirt located between higher levels of bedrock, and onto the bedrock itself. Both defense witnesses had observed visitors walk along those pathways and onto bedrock areas at times prior to the incident. Nevertheless, such conduct would have violated 9 NYCRR 375.1 (i) (Exhibit H), which restricts park patrons to the use of established ways only, and purports to exempt Defendant from liability for injuries resulting from the use of other trails and overlooks. Although neither witness was familiar with the specific area where Claimant fell, Mr. Purtill testified that the worn pathway in question was not one established and provided for public use by the State.

With respect to tripping hazards the park manager testified that the pathway depicted in Exhibit 3 was not level, and instead was part of the natural landscape of the island. He agreed that it was possible that a person could trip in the area of the path depicted in the photograph. Both defense witnesses made clear, however, that the terrain along the pathway was naturally rocky, and that the protruding rocks depicted along the route where Claimant fell appeared to be outcrops of the island's bedrock, and not loose surface stones. In response to questioning each witness opined that removal of the rocks depicted in the photographs, or covering them with dirt or wood chips, would not have been practical, and might have made the area more dangerous. Further, such remediation efforts would have caused tourists to falsely believe that the improved areas were actually established walkways. The witnesses also rejected the suggestion that railings should have been constructed along the area of the fall to assist tourists as they walked, or that a barrier should have been installed to deter visitors from leaving the asphalt walkway. It is significant that neither witness testified as to any prior tripping incidents on the worn path in issue, or at any other location on the island.

Mr. Mistretta also testified concerning the overall plan for that area of the park, which is based upon a concept developed by Frederick Law Olmstead in approximately 1887. Although not employed directly by Defendant the witness testified regarding his history of contact with State officials, including the Commissioner of Parks and Recreation and her Regional Director on behalf of his employer, an engineering firm that has worked in the development of the park. According to Mr. Mistretta, the park is listed on the National Register of Historic Places, and the State's development plan is to restore and maintain the area in as much of a natural state as possible. The witness believed that the construction of barriers to the dozens of small paths on the island would have been inconsistent with the goal of preserving a natural vista, and could easily have been circumvented. Mr. Mistretta also stated, on cross-examination, that he was unaware of any recognized standard or symbol that could warn foreign tourists to exercise caution while walking beyond the established blacktop pathway.

As with all landowners the State owes a duty of care to those who make use of its parks, namely to exercise reasonable care to maintain its premises in a safe condition in view of the circumstances, accounting for the possibility of injury to others, the seriousness of such injury, and the burden of avoiding such risk (Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241). However, the State does not act as insurer of the safety of those who enter upon its lands (Tripoli v State of New York, 72 AD2d 823). So also, negligence cannot simply be presumed from the mere happening of an accident, and instead must be affirmatively established by competent evidence of a breach of a duty of care (Mochen v State of New York, 57 AD2d 719, 720).

In weighing a landowner's exercise of its duties of care the courts of this State have differentiated between conditions that are part of the natural geography and those that are man-made. Similarly, courts have distinguished between potential dangers that are open and obvious and those not readily apparent. Thus, with respect to Claimant's assertion that Defendant was negligent in not fencing off the bedrock areas, "a landowner has no duty to erect barriers or fences in order to enclose natural geographical phenomena which do not in some way represent latent dangers or conditions, so as to prevent persons coming upon the land from injuring themselves by entering onto the condition in question" (Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539; see also Plate v City of Rochester, 217 AD2d 984, lv denied 87 NY2d 801). Here, the bedrock areas of the third island, and the paths that have become worn into those areas, are part of the undeveloped topography of the island. They presented conditions that were open and obvious rather than latent, such that Defendant owed no duty to construct a barrier. Moreover, in response to Claimant's contention that the two English-language warning signs at the gateway to the island were insufficient, and that some internationally-recognized warning should have been invented and installed, there is no duty on the part of the State to warn of the open and obvious tripping dangers presented as part of the island's natural rock formations (see Duclos v County of Monroe, 258 AD2d 925; Coote v Niagara Mohawk Power Corp., 234 AD2d 907, 908-909; Plate v City of Rochester, supra; Tarricone v State of New York, 175 AD2d 308, 309, lv denied 78 NY2d 862). That absence of a duty to warn is derived from the ability to observe the condition. When open and obvious, as here, "the condition is a warning in itself" (Tarricone v State of New York, supra, at 309). Finally, the Court finds that the two large signs posted on the single narrow bridge to the island provided actual notice in the park's exercise of ordinary care. In this Court's view it was not reasonably foreseeable that a foreign visitor, unable to read English, could readily make use of the park without the active assistance of a translator.

The Court rejects Claimant's assertion that the worn pathway is not part of the natural topography of the island. Based upon the evidence it is clear that Defendant did not create or groom or improve the area of the fall, which represented nothing more than a worn spot in and about the natural rocky structure of the small island. The absence of grass and possible compression of soil and sand did not cause the path, or the dozens of other worn areas throughout the island, to become improvements or structures. Since the conditions along the path were part of the natural geography, and open and obvious, the cases urged by Claimant in support of recovery are readily distinguishable (compare Johnston v State of New York, 127 AD2d 980, lv denied 69 NY2d 611 [latent dangerous condition, unknown to decedent but known to State]; Walter v State of New York, 150 Misc 2d 352, affd 185 AD2d 536 [failure to warn of concealed precipice, unknown to claimant but known to State]; Meyer v State of New York, 92 Misc 2d 996 [failure to remove rotted footbridge from path through wooded area of university campus]; Mesick v State of New York, 118 AD2d 214, lv denied 68 NY2d 611 [failure to remove swing rope attached to a tree above jagged rocks at water hole]).

In the Fourth Department the determination that a condition was open and obvious, or that a warning was given, is not generally dispositive of the issue of landowner liability, and a property owner or possessor would continue to owe a duty to maintain its premises in a reasonably safe condition (see Morgan v Genrich, 239 AD2d 919, 920 [injured party's knowledge of icy condition upon which he slipped did not negate owner's duty to maintain premises]). In its analyses of that broader duty of care, however, the Fourth Department also distinguishes between natural and man-made hazards, particularly as those conditions would lend themselves to elimination in the exercise of reasonable care (see Donohue v Seven Seventeen H B Buffalo Corp, 292 AD2d 786, 787). For that reason the Court will continue in its review under the standard articulated in Basso v Miller, supra, balancing the burden of minimizing risks against the likelihood and seriousness of potential injury.

As previously addressed, the conditions presented along the path were natural conditions in a rustic area. Whether Claimant tripped on an outcropping that was fully exposed, or one covered with surrounding soil or sand, the protrusion was part of the natural bedrock, and not "so out of character with the proximate surroundings as to be the foreseeable cause of an accident" (see Tripoli v State of New York, 72 AD2d at 824). That the park manager acknowledged that a person walking in the area of Claimant's fall could sustain injury does not mean that the condition was defective or dangerous. Indeed, Claimant herself testified that she did not believe the pathway to be dangerous, yet knew she had to be careful as she walked its route. Further, in the Court's view it is significant that Claimant readily negotiated the path when she first traveled to the more remote part of the island, that another tourist walked the path ahead of Claimant without reported incident, that her son used the path as he filmed it a week or two following the incident, and that no prior tripping incidents have been established. The evidence supports that the conditions were as they appeared, without hidden defect. For those reasons the Court concludes that the area in question did not present a dangerous condition.

Even assuming that the slopes and outcrops along the path presented a hazard, other considerations warrant a denial of liability. Although insufficient proof or knowledge was elicited to support that the non-development of the area of the island where Claimant fell was part of a specific plan, so as to afford discretionary immunity under Weiss v Fote (7 NY2d 579), the evidence does establish that the State has intended more generally to promote a natural appearance to the park. The suggested addition of handrails, or removal of bedrock, or the use of fill to raise and level the web of paths would have detracted from that desired appearance. Even then Defendant would not have addressed the natural slopes and drop-offs of the bedrock boulders that adjoin the paths, which present similar tripping hazards for unwary tourists. Additional remediation of the hazards presented by the adjoining boulders would also have been needed, unless Defendant chose to fence off areas beyond the asphalt walkway, a determination that itself would detract from the desired natural appearance of the area. In the Court's view such efforts would have been overly burdensome, given the absence of a history of tripping injuries in the area, and the relatively limited prospect of injury that a tripping hazard would have presented.

Based upon the foregoing the Court will deny and dismiss the Claim.


February 6, 2004
Buffalo, New York
Judge of the Court of Claims