New York State Court of Claims

New York State Court of Claims

DOBBERT v. THE STATE OF NEW YORK, #2005-015-515, Claim No. 107583


Court found claimant's actions in stepping backward near edge of roadway in nature preserve without looking to see that maneuver could be accomplished safely was sole proximate cause of her fall and resultant injury. Claimant dismissed.

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:
Michael P. Mansion, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 27, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The liability phase of this claim was tried in Albany on February 9, 2005. This decision addresses that issue only.

On the evening of July 20, 2000 claimant, Mary Dobbert, a 63-year-old self-employed day-care provider and her husband, co-claimant Francis Dobbert, left their home and traveled to the Five Rivers Environmental Education Center (the Center) in Delmar, New York. The Center is a 400- acre passive recreation area owned by the State of New York and operated by the New York State Department of Environmental Conservation (DEC) and contains a number of paved and unpaved trails which are open to the public for a variety of seasonal activities including hiking, cross-country skiing/snow shoeing and bird watching (
see defendant's Exhibit L). Claimant testified that she and her husband were frequent visitors to the Center and used it principally for relaxation and bird watching.
The weather was described as "beautiful" when the claimant and her husband arrived at the Center around 6:00 - 6:15 p.m. At approximately 7:15 p.m. that evening claimant and her husband were walking along Heron Pond Road. Mrs. Dobbert testified that she was wearing jeans, a long- sleeved shirt and Reebok sneakers. She also had a pair of binoculars slung around her neck. The witness described Heron Pond Road as a paved asphalt roadway bordered by dense vegetation. Photographs of the area (Exhibits 2, 5, 6 and 8) taken by co-claimant Francis Dobbert on July 21, 2000, the day following the accident, reveal the lushness of the vegetation and that the land adjacent to Heron Pond Road in the area photographed falls away from the roadway surface to form a swale[1]
As they walked together Mr. Dobbert alerted the claimant to a hawk which had alighted in a nearby tree. Claimant alleges that at that time she was walking on the left side of the road approximately one foot from the roadway's edge. Her husband was near the middle of the paved surface. Natural lighting in the area was described as good at the time of the accident. Mrs. Dobbert described her accident, interrupted by her attorney's questions, as follows: "When he said a hawk had flown in I stopped and made a pivot turn I guess you would say and at that point. . . I would have, I moved my right foot when you're walking and you stop to look up . . . my left would have been closer to the edge . . . toes toward the center of the roadway heels to the shoulder . . . binoculars were around my neck . . . I made the turn while I was stopping in the same motion . . . When I turned my right foot went back for balance purposes which obviously didn't work that day . . . right foot went back to the shoulder of the road . . . as soon as my foot apparently I don't know that's when I fell . . .when the right foot went toward the shoulder of the road."
Claimant's counsel further inquired "what did you feel underneath your feet as you began to fall?" to which she replied "my left foot was still on the pavement, ah, I felt myself falling and the right foot was on the grass at that point when I looked down so I just, ah, apparently the right foot just went off part of the asphalt."

Claimant denied feeling the asphalt crumbling or caving beneath her foot. In fact she did not feel the asphalt give in any way. She felt that part of her heel was off the pavement and she began to fall backward. "When I was losing my balance I looked down trying to figure out why I was losing my balance . . . I saw grass that my foot was starting to slide on . . . There was a lot of vegetation overgrowing the asphalt."

Claimant believes that she fell directly backwards from the point at which she was standing. She came to rest after striking a cement post which was connected to other, adjacent posts by wires in an area she testified was below the elevation/height of the road surface and overgrown with vegetation as depicted in the photographs received in evidence. After regaining her composure and her balance she returned to the pavement and her husband went into the ditch to inspect the area. Mr. Dobbert's investigation revealed the presence of the cement post which was hidden by the vegetation.

Claimant examined defendant's Exhibits F and G and identified the cement post upon which she fell. She testified that the post was not visible from the roadway prior to her fall and described the location of the post or guardrail as approximately three to four feet from the road edge. Claimant also described a steep drop in elevation which began one to two inches from the point where the pavement met the shoulder of the road. She did not notice anything unusual about the condition of the road's surface before her fall. After her fall, however, she observed a long crack with "feets" [
sic] running parallel along the surface which caused the pavement to slope slightly toward the shoulder. She also noted some broken pavement near the roadway's edge in an area which she assumed was the location of her right heel prior to her fall.
On cross-examination claimant recalled that her husband was not immediately aware she had fallen into the ditch because he was engaged in watching the hawk. She declined his offer of assistance and climbed out of the ditch on her own power. She admitted that she was familiar with the Center which she has visited four to five times each summer, and sometimes in the Spring, since the early 1970s. Claimant had walked Heron Pond Road several times before the subject incident. According to the claimant the accident location was near a lookout point used by the claimants and other visitors to observe the pond and surrounding blue heron habitat. Claimant admitted this area was one of her favorite spots at the Center and that she visited it with some regularity over the past 20 years.

Claimant acknowledged that she did not know what was happening to her at the time of her fall. Just before the fall she took a half step backward while looking up to see the hawk. She was not aware of the condition of the trail prior to her fall. She did not observe any defects nor did she report any defective conditions on any previous visits to the Center. She was not aware of any prior accidents at the location or of any complaints regarding the condition of Heron Pond Road at or near the site of her fall.

After the accident claimant and her husband returned home briefly and then went to St. Peter's Hospital Emergency Room. She admitted that the description of the incident contained in defendant's Exhibit J, a document prepared by St. Peter's emergency room staff on July 20, 2000, was correct.
Claimant testified that defendant's Exhibits A, D, F, G and H accurately depict the scene of the accident except that they were taken during a season other than summer. Items depicted therein such as the yellow steel post and the cement post (guardrail) appeared to the claimant to be in the same positions they were at the time of the accident. Those exhibits were received in evidence.
On re-direct examination claimant testified that she did not see the crack in the trail before she fell because she was looking up as she turned and, upon questioning by her attorney, alleged also that vegetation obscured the crack she later observed at the pavement edge. With regard to claimants' Exhibit 1, a form entitled Supervisor's Investigation of Public Accident completed on July 21, 2000 by Craig D. Thompson, the witness stated that she disagreed with item #14 which relates information concerning unsafe action engaged in by the injured party. She indicated that she was not walking while looking at the bird but rather stopped and turned to look at the hawk. However, the claimant testified that in her view it would not be unsafe for someone to watch birds while walking.

On re-cross examination claimant reaffirmed her earlier testimony that Exhibits 2 and 8 accurately depict the area of her fall as of July 20, 2000. She then admitted that the Supervisor's Report prepared by Mr. Thompson did not reference vegetation obscuring a defect in the roadway.

The second witness was co-claimant Francis Dobbert. His early testimony mirrored that of his wife as it related to the evening in question. Like her, he admitted familiarity with the Center and with Heron Pond Road over a number of years. His testimony similarly reflected his wife's as to the events immediately preceding her fall, including the fact that he drew her attention to a hawk that had alighted in a nearby tree. Mr. Dobbert testified that he did not see his wife fall. At some point, however, he looked around and noticed that his wife was missing and discovered her lying on her back in the underbrush. She was silent at first and then told him not to help her up because she was in too much pain. She climbed out of the dense brush and the witness escorted her to a nearby bench. Mr. Dobbert then went to the parking area and retrieved his car, placed his wife in the vehicle and left the Center.

According to the witness neither the deteriorating guardrail nor the swale or gully alongside Heron Pond Road could be seen from the road due to the surrounding vegetation. Mr. Dobbert discovered the post when he entered the "gully" into which his wife had fallen and pushed aside some of the vegetation. The witness testified that defendant's Exhibits F and G appear to distort the placement of the guardrail vis-à-vis the yellow pole and the road edge.

Mr. Dobbert claims to have observed that the asphalt edge of the trail was approximately five and one-quarter inches above the elevation of the adjacent shoulder and that the land dropped off significantly after that. The day following the accident the witness went to the Center and met with Craig Thompson, the Center's Manager. Both men walked to the accident scene and Mr. Dobbert photographed the area (
see e.g. Exhibits 2 and 8). He also verbally described to Mr. Thompson how the accident occurred. He did not witness or does not recall observing Thompson preparing his Supervisor's Report (Exhibit 1).
On cross-examination the witness was shown defendant's Exhibit K which he identified as a document completed in what appears to be his handwriting. He read the following description of the accident contained therein into the record: "Fell off side of road and hit guardrail post under weeds after stepping back to look at hawk in a tree." The witness somewhat equivocally recalled that he prepared Exhibit K and may have submitted it to DEC's legal department sometime subsequent to the accident. He admitted that Exhibit K contains no references to dense vegetation, roadway conditions, a crack in the asphalt or sloping shoulder, all items identified by him and his wife at trial as possible contributing factors to her fall.

With reference to claimants' Exhibit 1, the witness agreed that the Supervisor's Report does not mention vegetation on the roadway, a crack in the asphalt surface, the slope of the shoulder or the elevation of the roadway surface. The witness admitted that he did not actually witness his wife's accident and cannot testify to an exact location or that his wife's fall was, in fact, caused by the condition of the road as opposed to a number of possible causes. He confirmed that in his conversation with Craig Thompson on July 21, 2000 he assumed that his wife's body struck the guardrail because there were no other objects such as a tree or stump in the area.

The witness's re-direct examination was unremarkable.

The claimants' final witness was Craig Thompson, a DEC employee and Director of The Five Rivers Environmental Education Center. He testified that his duties in the year 2000 included oversight of educational programs, grounds maintenance and Center staff. Mr. Thompson described the Five Rivers Center as an area designed for public use and enjoyment as a passive recreation area. The Center encourages bird watching and has brochures available to assist visitors in locating and identifying birds which visit or nest at the site (
see claimants' Exhibits 10 and 11, and defendant's Exhibit L).
The witness admitted that part of his duties include making recommendations regarding maintenance projects to DEC which, in turn, determines the recommendations actually implemented. Guided by health and safety concerns he prepares a "wish list" in March or April of each year for possible projects during the construction season. The list is prepared after a personal site review and upon review of crew reports.

On July 21, 2000 Mr. Dobbert visited the witness to report his wife's accident. Mr. Dobbert provided some notes regarding the accident (defendant's Exhibit K) and expressed his concern regarding lost wages incurred by his wife as a result of the accident. The two men then visited the accident site. The witness did not take notes or photographs while there but recalled that Mr. Dobbert told him that his wife fell when she stepped backward while looking up. The witness testified that the Center's employees did no work at the site between the date of the accident and the following day when he and Mr. Dobbert visited the scene of the accident.

The witness identified defendant's Exhibit F, G and H as depicting the guardrail (i.e., cement post) at the purported site of Mrs. Dobbert's fall as it existed on July 21, 2000, the date of Mr. Dobbert's visit. With regard to claimants' Exhibit 1 the witness testified that the narrative is written in his hand and contains information obtained from Mr. Dobbert, although its language may not reflect Mr. Dobbert's words verbatim. The original was sent to DEC's legal department and a copy of the completed form was mailed to the Dobberts.

Mr. Thompson testified that on July 21, 2000 he observed vegetative growth in the subject area which did not in his opinion encroach upon the roadway. He stated that Heron Pond Road is not actually a trail but rather is a maintenance road, heavily traveled by large trucks and "daylighted" (i.e., vegetation cut back as far as the cutter can reach) regularly. Examining claimants' Exhibits 2, 5, 6 and 8 he testified that the photographs accurately depict the scene as he observed it on July 21, 2000 and also show signs of "daylighting" of vegetation in the area.

On his rehabilitation and improvement wish list prepared for a number of years (four to five) prior to 2000 the witness asked that the guardrail running along Heron Pond Road be repaired. Mr. Thompson testified that the guardrail posts in this area of Heron Pond Road, including the one allegedly struck by the claimant, are located approximately four to five feet from the edge of the roadway and were designed to prevent vehicles from falling into an adjacent swale which in the wet season can hold two to three feet of water. The witness stated that while no objection is made to pedestrian traffic on Heron Pond Road it was not designed for that purpose. The witness did not recall when the roadway was last repaved prior to 2000 but did not disagree with testimony given at his examination before trial in which he stated that it was last repaved in the mid-1980s.

Mr. Thompson recalled that no mention was made of the relative height of the roadway/shoulder when he and Mr. Dobbert visited the site and he therefore made no specific observations regarding the differential at that time.

On cross-examination the witness explained his procedure for prioritizing items on his annual wish list. The guardrail was not an item of major concern because although the connecting wires were loose and the posts were askew the guardrail continued to perform its function of keeping vehicles out of the swale. The guardrail system was not intended to catch pedestrians from falling off the road. The witness testified that there were no prior reported accidents in the area of claimant's fall and he knows of no complaints regarding that area.

Mr. Thompson stated that the goal of providing a natural habitat for indigenous flora and fauna affects the type of maintenance performed and that the vegetative growth around the guardrail shown in the photographs is appropriate to the natural environment encouraged by the Center. According to the witness the swale into which the claimant fell is a regular habitat for several species of roses as well as small animals. He further testified that natural vegetative growth prevents "herd pathing" which results when people repeatedly follow a path not designated for such a purpose, generally to a body of water. He stated that herd pathing can increase the danger to visitors.

The witness was previously unaware of any crack in the asphalt surface of Heron Pond Road and had received no complaints concerning such a condition prior to claimant's fall. The Center is currently comprised of 400 acres and is visited by approximately 75,000 visitors annually.

On re-direct examination Mr. Thompson reaffirmed that pedestrians are permitted to use Heron Pond Road. He stated that he continued to include the guardrail on his annual wish list of projects to be performed at the Center because it was unsightly. In his estimation the difference between the asphalt and shoulder of the roadway was one to two inches and not the five and one-quarter inches allegedly observed by the co-claimant. There was no re-cross examination of this witness.

Claimant rested at the conclusion of this witness's testimony and the defendant moved to dismiss the claim for the failure of the claimants to prove a prima facie case. The Court reserved decision and now denies the motion.

An owner of property is not an insurer of the safety of persons using his or her property (
Thackeray v Novak, 124 AD2d 946; Paul v Kagan, 92 AD2d 988). Rather, it is well settled that landowners, including the State, which hold their property open to the public have a general duty to maintain it in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Kellman v 45 Tiemann Assocs., 87 NY2d 871). Liability is dependent upon a determination as to whether the owner "act[ed] as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the [potential] injur[ies], and the burden of avoiding the risk" (Basso v Miller, 40 NY2d 233, 241 quoting Smith v Arbaugh's Rest., 469 F2d 97). Although a landowner is also subject to a duty to warn of dangerous conditions which exist on the property (Thornhill v Toys "R" Us NYTEX, 183 AD2d 1071; Kurshals v Connetquot Cent. School Dist., 227 AD2d 593), the claim herein does not assert such a theory of liability and no evidence on the issue of a failure to warn was received at trial. Furthermore, there was no expert or other proof to establish that either the shoulder of Heron Pond Road or the swale or gully which ran alongside the roadway constituted a dangerous condition. While claimants' initial theory of liability rested upon the location and deteriorating condition of concrete post guide rail with which claimant came into contact during her fall, at trial claimants' focus shifted to the allegedly deteriorating condition of the road surface which she now alleges precipitated her fall. The reason for the shift is obvious since no matter what condition the post was in it could not have been a proximate cause of Mrs. Dobbert's accident.
Claimant described the events preceding her fall by stating that she and her husband were walking on Heron Pond Road, Mrs. Dobbert on the left side of the roadway and Mr. Dobbert in the center. Mr. Dobbert noticed a hawk in a tree on the right side of the road and informed his wife of the presence of the hawk. According to Mrs. Dobbert at the time she was alerted by her husband her left foot was one foot from the edge of the road surface. She pivoted and moved her right foot so that her toes were pointing across the roadway and her heels faced the road edge. In doing so her right foot slipped on some grass and she fell backward coming to rest in the ditch or swale which ran alongside Heron Pond Road.

What is apparent from Mrs. Dobbert's description of these events is that any alleged crack along the surface at the side of the road did not contribute to her accident. In the Court's view Mrs. Dobbert did not simply pivot when she turned. Instead, she turned and stepped backward causing her right foot to leave the paved area of Heron Pond Road and come to rest on the grassy area which borders the roadway. Claimant did not feel the pavement break or give way immediately prior to her fall. Rather, the claimant testified that as she began to fall she looked down and noticed that her foot had slipped on grass. There is no testimony that the condition of the surface edge caused or contributed to her fall except that the crack caused the outside portion of the pavement to slope slightly away toward the shoulder. To the extent that such a condition existed the Court finds from the photographic and other proof submitted at trial that it played no role in causing claimant's fall.

The Court makes a similar finding with regard to the alleged encroachment of vegetation onto the road in such a manner as to obscure the end of the asphalt surface and the beginning of the shoulder. While the photographs depict the presence of vegetation along the road edge that alone is not unique or unreasonable in a natural area such as the Five Rivers Center. The photographs do not show an excess of vegetation such as to pose a danger to an individual exercising a modicum of care for his or her own safety. As to any alleged height differential between the road surface and the shoulder the testimony was conflicting. Although Mr. Dobbert estimated the differential to be five and one-quarter inches the facility Director, Mr. Thompson, described the difference as between one and two inches. In the absence of actual measurements of the alleged condition the Court finds that the proof is inadequate to establish that the alleged height differential constituted a dangerous condition. In addition, Mrs. Dobbert's testimony fails to establish that the differential, to the extent it existed, played any role in her fall.

Even if the conditions above had in some way contributed to the happening of this accident "[i]n a [personal-injury case such as this], where there is no indication in the record that the defendant created the defective condition or had actual knowledge of it, the plaintiff must prove constructive notice" (
Galgan v Allied Staten Is. Co., 248 AD2d 585). A claimant proceeding under a constructive notice theory must prove that the defect which caused the accident was visible and apparent and that it existed "for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837). A general awareness of the existence of a dangerous condition is not sufficient to put a defendant on constructive notice; instead the defendant must have notice of the specific condition at issue (Piacquadio v Recine Realty Corp., 84 NY2d 967). In order to recover claimant must prove that defendant had notice of the specific condition for such a period that in the exercise of reasonable care defendant could and should have corrected it (see Smith v May Dept. Store, Co., 270 AD2d 870; Mc Duffie v Fleet Fin. Group, 269 AD2d 575; Rabadi v Atlantic & Pac. Tea Co., 268 AD2d 418).
There is no proof of actual notice to the defendant of a defect in the pavement. Although claimant demonstrated that the repair of the guardrail system was considered for several years in advance of the claimant's accident, such proof is irrelevant since as previously noted the condition of the guardrail post was not a proximate cause of claimant's fall. Claimant offered no proof related to the length of time the crack existed in the roadway surface, the extent of the alleged deterioration of its edge or actual measurements of the height differential between the surface of the roadway and the adjoining shoulder. The proof established that there were no prior accidents or complaints concerning the area where claimant's accident occurred and neither of the claimants complained of the condition of the road prior to Mrs. Dobbert's accident despite the fact that they visited the Center several times a year and were quite familiar with Heron Pond Road. Absent proof of actual or constructive notice of the alleged defects at issue, liability against the defendant cannot be imposed (
see Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875).
Although the claimant asserts that she executed a pivot turn prior to her fall she also testified that her left foot was one foot from the edge of Heron Pond Road when she turned to locate the hawk. As she turned her right foot came in contact with grass which caused her to slip and fall. Relating claimant's testimony to the photographs of the area leads the Court to conclude that claimant turned and stepped back with her right foot while looking up and across the roadway. Claimant's attempt to accomplish such a maneuver from a starting point one foot from the road edge caused her right foot to leave the paved area of Heron Pond Road and come in contact with grass on the shoulder. The Court notes in this regard that the approximate edge of the road surface and beginning of the swale were marked by two yellow posts located in the immediate vicinity of claimant's fall as shown in several of the photographic exhibits. In fact, claimant testified that she reached for one of the posts in an attempt to arrest her fall.

Upon consideration of the proof the Court finds that the State fulfilled its duty of ensuring that Heron Pond Road was reasonably safe for intended and foreseeable uses by the public (
see Tuttle v State of New York, 277 AD2d 1055). The fact that claimant was injured does not require a finding of negligence on the part of the State. Rather, the facts of this case mandate a finding that Mrs. Dobbert's actions in stepping backward from a position which was already near the edge of the road without first looking to ensure that the movement could be accomplished safely was the sole proximate cause of her accident and resulting injuries. Accordingly, the claimants have failed to establish by a preponderance of the evidence that the State was negligent in that it failed to maintain Heron Pond Road in a reasonably safe condition under the circumstances and that such negligence caused or contributed to the happening of her accident. The claim is therefore dismissed.
The Clerk shall enter judgment in conformity with this decision.

June 27, 2005
Saratoga Springs, New York

Judge of the Court of Claims

[1]This fact was further illustrated in the defendant's area photographs (defendant's Exhibits A, B, C, D, E, H & I).