Claimant seeks damages for personal injuries suffered by her when she fell from
her bicycle at approximately 10:30 p.m. on September 3, 2000, at Sampson State
Park in Romulus, New York. Claimant alleges that she was thrown from her
bicycle when her bicycle tire struck the edge of a depression in pavement
surrounding a drainage grate at the campsite. She contends that the State had
actual notice of this condition, and failed to properly maintain it in a
reasonably safe condition. The trial of this claim was bifurcated, and this
decision deals solely with the issue of liability.
Testimony established that claimant and her husband, Scott Powley, arrived at
Sampson State Park on Friday, September 1, 2000, for a weekend of camping. On
Sunday evening, September 3, 2000, between 9:00 and 10:00 p.m., claimant took
her bicycle and rode to a nearby comfort station at the park to use the
facilities. Paved roadways existed throughout the park, and claimant rode her
bicycle on the roadway both to and from the comfort station. On her return from
the restroom to her campsite, claimant testified that her bicycle tire was
a depression in the pavement, causing her to be thrown from her bicycle. This
depression surrounded a drainage grate, which was several inches below the paved
Scott Powley testified that he heard his wife calling him for assistance after
she fell, and he went to her aid. He assisted his wife back to the campsite,
where they remained for the rest of the night.
Neither claimant nor her husband reported the incident to park officials either
that evening or the next morning prior to leaving the campsite. Claimant did
not seek any medical assistance prior to leaving the park.
Both claimant and her husband testified that there were no lights along the
roadway, and that the depression and grate were similar in color to the
surrounding pavement, and were therefore not visible at nighttime. Mr. Powley
also testified that the comfort station was well lit, and that it was
approximately 400 yards away from their campsite. He testified that he could
see the lights on the comfort station from his campsite.
Claimant did acknowledge that her bicycle was not equipped with a light, and
that she did not have a flashlight or other illuminating device with her at the
time of her fall. She was also not wearing a bicycle helmet at the time of this
Claimant did testify that prior to this incident, she had observed the
depression in the pavement during her stay at the park. In fact, claimant
testified that on her trip to and from the comfort station, she was aware of the
presence of the drainage grate and depression, and was consciously trying to
avoid the area, but was unable to do so because of the total darkness.
Scott Powley testified that he returned to the site approximately one week
later and took photographs of the depression and grate (see Exhibits 1 through
6). Based on his observations and measurements, he estimated that the
depression was approximately six to seven inches in depth (from the top of the
pavement to the drainage grate).
Barry A. Dean, Highway Superintendent for the Town of Webster, testified as
claimant's expert. Mr. Dean has 34 years of service with the Town of Webster
Highway Department, including 12 years as superintendent. Mr. Dean, however,
did not have any prior work experience with either the State Highway Department
or the State Parks Office. Mr. Dean testified that current highway standards
required drainage grates to be flush with the surface of the pavement, and that
this drainage inlet at the State park was considerably lower than the asphalt
pavement. He admitted that the inlet was "open and obvious" during the daytime,
but nevertheless concluded that the drop-off between the pavement and the
drainage inlet created a "dangerous situation" which should have been repaired
by the State.
The deposition testimony of Bruce Fullen, taken on June 24, 2003, was received
into evidence at trial (Exhibit 9).
Mr. Fullen was the Park Manager at Sampson State Park at the time of the
incident. In his testimony, Mr. Fullen stated that he was very familiar with
the area where claimant fell from her bicycle, and that the condition of the
drainage grate had been in existence from the time he started work at the park
in 1996. He testified that the drainage grate was located in an area of the
roadway which park patrons utilized for both pedestrian and bicycle traffic. He
also indicated that the depression in the pavement was noticeable to him even as
he drove his car through the park on various occasions, since it would cause his
car to dip if he happened to strike it.
Kathie DeSarno, employed by the State Office of Parks, Recreation and Historic
Preservation as a Supervisor of Park Operations, testified that she received
claimant's telephone call when claimant ultimately reported her fall to the park
office on September 14, 2000. Ms. DeSarno took a statement from claimant over
the telephone, and typed her report as claimant related the details of the
incident to her (see Exhibit B). A copy of this report was mailed to claimant
for her signature, and was returned, with one addition having been made to the
report (see Exhibit C).
Ms. DeSarno also testified that she reviewed accident reports for the area in
question at Sampson State Park and found no record of any other accidents
related to the drainage grate.
John C. Clancy, Regional Director of the Fingerlakes Region for the State
Office of Parks, Recreation and Historic Preservation, also testified. Mr.
Clancy testified that he was familiar with the history of Sampson State Park,
and that all of the roadways and paved areas in the park existed prior to the
State taking ownership of the property. Mr. Clancy also testified that he was
unable to locate any records relating to any paving or repaving projects for the
subject area. Mr. Clancy testified that any paving projects in this area had
been performed by the federal government prior to the State assuming ownership
of the property.
Jeffrey J. McDonald, who was employed by the State Office of Parks, Recreation
and Historic Preservation, testified as the State's expert. Mr. McDonald is a
licensed landscape architect, and is employed by the State as Regional Capital
Facilities Manager for the Fingerlakes Region. Mr. McDonald had previously
been employed with the State Department of Transportation as a landscape
Mr. McDonald had taken a pavement sample from the area near where claimant had
her accident, and based on his observations of the sample, he concluded that
this was the original pavement, and that no work had been done to the roadway
since the early 1940's.
Mr. McDonald also testified that although roads within the State parks are
considered State roads for traffic regulation, Department of Transportation
standards generally do not apply to these roadways, and the Parks Office is not
required to implement standards and guidelines of the Department of
Additionally, Mr. McDonald testified that in his professional opinion, the
drainage grate was not a concealed condition, but rather was open and obvious,
and that he did not consider this depression to be an "unusual hazard". He
testified that although the depression in the roadway had existed for a number
of years, in his opinion this area did not require maintenance or repair.
From the evidence presented, there is no question that the park roadway in the
area where claimant fell from her bicycle was the original pavement, and that it
had remained in the same state of condition for several decades. As a result,
any testimony from claimant's expert that the State had an affirmative duty to
reconstruct the drainage-grate area to comply with current safety design
standards is irrelevant. The State is not obligated to undertake roadway
reconstruction simply because safety design standards have changed subsequent to
the original construction (
Holscher v State of New York
, 59 AD2d 224, affd
46 NY2d 792).
Claimant's reliance upon subsequent design standards as establishing a duty upon
the State to maintain the existing drainage grate is misplaced. In order to
prevail in her claim, claimant must therefore establish the existence of a
foreseeably dangerous condition, that the State had notice (either actual or
constructive) of this condition, that the State failed to correct the condition
within a reasonable time, and that the failure to correct the condition was a
proximate cause of her accident.
It is well settled that the State, as a landowner, has a duty to use reasonable
care in maintaining its land in a reasonably safe condition (see
Basso v Miller
, 40 NY2d 233; Preston v State of New York
, 59 NY2d
997). The State, however, does not insure the safety of those who enter upon
its lands, and the mere occurrence of an accident does not establish negligence
(Mochen v State of New York
, 57 AD2d 719).
In this case, testimony established that there was a significant depression in
the paved surface leading to the drainage grate, which itself was located
several inches below the paved surface of the roadway. According to the
testimony of the park manager, the depression was significant enough to be
noticed when driving over the area in a motor vehicle. The depression was also
relatively large, since testimony established that the drainage grate was two
feet wide and three feet in length (see Exhibits 1 through 6).
The State, however, contends that this condition was open and obvious, and even
claimant and her husband both acknowledged that they had observed this condition
in the roadway prior to her accident. The coloring of the grate and surrounding
pavement area, however, was similar to the existing pavement in the roadway, and
therefore even though this depression may have been apparent during daylight
hours, it cannot be said that such condition was open and obvious at night.
There was no artificial lighting in the immediate area, and there were no other
markings or signage to adequately warn park patrons of the existence of this
depression. Furthermore, park personnel must have been aware that patrons of
the park utilized the paved roadway during nighttime hours, particularly for
travel to and from the comfort station. There were no markings whatsoever to
identify this depression.
As a result, the Court finds that this drainage grate, and the depression
surrounding the grate, constituted a dangerous condition, of which the State had
actual notice. Since the State's own witnesses testified that this condition
had been in existence for several years, the Court finds that the State
certainly had a sufficient opportunity to correct the condition, or at a minimum
provide appropriate warning, and that the failure to correct the condition or
provide adequate warning of this hazard was a proximate cause of claimant's
The State, however, contends that the doctrine of primary assumption of risk
bars any recovery from the claimant in this claim.
Pursuant to CPLR § 1411, the assumption of risk doctrine generally acts
not as a bar to recovery by a claimant, but rather diminishes any recovery in
proportion to a claimant's culpable conduct. Primary assumption of risk,
however, does constitute a complete bar to recovery, since it measures the
defendant's duty of care rather than a claimant's comparative fault (
Turcotte v Fell
, 68 NY2d 432).
Defendant's reliance upon this doctrine, however, is misplaced. The doctrine
of primary assumption of risk is most often applied to injury claims arising
from a claimant's voluntary participation in competitive athletic activity. By
electing to participate in such activity, the claimant or plaintiff is deemed to
have consented "to those injury-causing events which are known, apparent or
reasonably foreseeable consequences of the participation." (
Turcotte v Fell
at 439). In this case, claimant was not
voluntarily participating in any athletic contest (such as a bicycle road race)
or even using her bike for recreational activity, but was merely riding her bike
as a means of transportation to the comfort station in the park. While the
decision to ride her bike at night without a lamp may have been misguided, it
certainly is not the type of activity that invokes the primary assumption of
risk doctrine to bar any recovery. Her decisions and actions therefore must be
considered under the comparative fault provisions of CPLR § 1411.
Similarly, defendant's reliance upon Vehicle and Traffic Law § 1236(a) is
also misplaced. Section 1236(a) requires that every bicycle used during the
period from one-half hour after sunset to one-half hour before sunrise be
equipped with a front lamp which emits a white light visible during these hours
from a distance of 500 feet to the front. It is evident that the purpose of
this section is to make a cyclist visible to others during nighttime, and
claimant's failure to comply with this statute cannot act as a bar to any
recovery by her in this action.
Accordingly, the Court finds that the drainage grate, and the depression in the
pavement surrounding it, constituted a dangerous condition, for which the State
had a duty to correct, or at least warn park patrons of its existence, since it
was not visible during nighttime hours. Since this condition was a proximate
cause of claimant's injuries, the State must respond in damages.
Having made this determination, however, and as indicated above, the
comparative negligence of the claimant must also be considered. Although
intending no disrespect to the claimant, the Court finds that it was
irresponsible for her to ride her bicycle to the comfort station at night, over
a darkened roadway, without a light of any kind to assist her. Claimant would
have encountered much less risk had she walked to the station (which was
approximately four hundred yards away) with a flashlight or lantern to
illuminate her way. In particular, claimant admitted that she was aware of the
depression and drainage grate in the roadway, since she had observed it during
daylight hours. Evidence even established that she was trying to avoid the area
of the depression on her return from the comfort station, but unfortunately fell
into the depression since she was unable to locate the depression in the
darkness. Claimant must therefore bear a significant share of the liability
assessed in this matter.
Based upon the foregoing, therefore, the Court finds that claimant is 70 %
responsible for the injuries suffered by her in this accident, and the defendant
State of New York is 30 % responsible for the injuries suffered by claimant.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on
the issue of liability in accordance with this decision. The Court will set
this matter down for trial on the issue of damages as soon as practicable.
Any motions not heretofore ruled upon are hereby denied.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY