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
defendant's Exhibit L). Claimant testified that she and her husband
were frequent visitors to the Center and used it principally for relaxation and
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
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
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" [
] 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
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
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
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
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 (
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 (
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
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
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
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
, 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.
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
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
, 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.
, 269 AD2d 575; Rabadi v Atlantic & Pac. Tea Co.
, 268 AD2d
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
The Clerk shall enter judgment in conformity with this decision.