BRIGGS v. STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and NEW YORK STATE
CANAL CORPORATION, #2005-015-517, Claim No. 107694
Court found State entitled to immunity provided by General Obligations Law
§ 9-103 for claimant's decedent's suffering and death resulting from a
slip, fall and slide from the vicinity of an ice-covered bike path along the
Erie Canal. Decedent was engaged in hiking or a sufficiently related activity
at the time of the accident. Claimant unsuccessful in establishing any basis
for liability on part of the State. Claim dismissed after trial.
JANICE BRIGGS, As Administratrix of the Estate of DOUGLAS J. BESWICK, (Deceased)
Footnote (claimant name)
STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and NEW YORK STATE CANAL CORPORATION
Footnote (defendant name)
FRANCIS T. COLLINS
Conway & Kirby, LLPAndrew W. Kirby, Esquire
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
July 15, 2005
See also (multicaptioned
The liability portion of this bifurcated action was tried in Albany on February
2 and 3, 2005. Claimant, the mother and duly appointed administratrix of the
estate of Douglas J. Beswick, commenced this action seeking damages for the
wrongful death and conscious pain and suffering of her son, Douglas J.
, who was 23 years old and unmarried at the time of his death. The claim named
the State of New York, the New York State Thruway Authority and the New York
State Canal Corporation as defendants.
The accident which took Douglas Beswick's life occurred at the Mohawk Hudson
Bikeway and Park near Lock 8 in the Town of Rotterdam, County of Schenectady.
The claim alleges that "on or about the 3
rd day of February, 2002, at approximately 3:15 p.m., the deceased claimant,
Douglas Beswick, was walking on the aforesaid premises and was [caused] to slip
and fall down the embankment and fall into the river and sustained serious
personal injuries, including hypothermia, asphyxia, drowning and death."
Together the claim and claimant's bill of particulars allege that the defendants
were negligent in the following respects: failed to warn of the dangerous
condition of the Mohawk Hudson Bikeway, shore, canal and/or waterway; failed to
inspect for dangerous conditions; failed to erect barricades, fencing, ropes,
barriers or other devices to protect the public from dangerous conditions;
allowed a slippery condition to exist on the bikeway; failed to restrict access;
failed to have a means of rescue and failed to have a means of egress for an
individual who fell into the canal and/or waterway.
Defendants' answer alleged that the decedent was comparatively negligent and
assumed the risk of walking on an ice-covered bikeway; that parties other than
the named defendants were responsible for the accident and the defendants were
immune from suit by operation of General Obligations Law § 9-103.
The following witnesses were called and, in relevant part, testified as
Claimant's first witness was State Police Investigator Kelly Strack who
reported to the scene of the decedent's accident on February 3, 2002. She
arrived at approximately 8:30 p.m. and took photographs of the scene which were
undevelopable due to a camera malfunction. She recalled little detail about the
scene except that the bank leading down to the river was covered with snow and
ice and that there was no obvious path marking the decedent's descent. The
witness left the scene around 9:15 p.m. and returned the following morning at
10:30 a.m. Her recollection of the scene that morning was minimal and
photographs taken at that time utilizing the same camera used the previous
evening were likewise not able to be developed. Cross-examination of this
witness was unremarkable.
Claimant's second witness was State Police Investigator George Bird who stated
that on February 3, 2002 at approximately 5:00 p.m. he responded to a call
involving a drowning at Lock 8. When he arrived he observed numerous police
personnel including members of the State Police and Town of Rotterdam Police
Department. He also observed emergency and rescue personnel on both sides of
the river. He then conversed with Trooper Maxian and Station Commander Gregg
from the Fultonville State Police Barracks regarding police investigatory
activity at the site. Trooper Maxian reported that he had interviewed an
eyewitness and notified the decedent's mother of the incident.
Investigator Bird stated that photographs of the scene were taken that
afternoon. He identified and marked one of those photographs (Exhibit 11) to
show what he believed to be the starting point of the decedent's descent. The
witness related that he observed an obvious indentation in the ice at the base
of a small clump of trees and concluded that someone had fallen there. He also
observed nearby footprints leading to the indentation. He testified that
Exhibit 1 fairly and accurately depicted the conditions observed on the day of
the accident including the fact that the bank had a hard covering of ice from
the bike trail to the river. He was unaware of how long the icy conditions
evident in the photo existed at the scene but stated his belief that there had
been freezing rain in the area the night before the incident. Trooper Maxian
did not provide the witness information concerning where he believed the
decedent went over the eastern approach wall and entered the water.
Investigator Bird indicated that the bike path contained crushed snow and ice
which he was able to walk upon without difficulty. He reported having been to
the Lock 8 area in winter prior to February 3, 2002 because the area was known
as one frequented by persons smoking marijuana and "involved in other things" (T
. He remained at the scene for approximately 1½ to 2 hours. Although he
did not make any sketches of the area while there he prepared a sketch later
that night at the home of Joseph Mangano, the eyewitness to the incident
previously interviewed by Trooper Maxian. He described Mr. Mangano's responses
to his questions that evening as guarded but would not categorize them as
untruthful or dishonest.
As a result of his investigation Investigator Bird concluded that the decedent
had intentionally left the bike path, descended to the slope fronting the river
and fell at the base of the clump of trees shown in the photographs. That
conclusion was purportedly based on the witness's observations as well as
information provided by Mr. Mangano to Trooper Maxian. The witness testified
that Mangano had indicated in a deposition taken by Trooper Maxian that he and
the decedent were playing on the icy, slippery bank and that decedent fell near
the clump of trees. In a deposition taken by the witness later that evening Mr.
Mangano related that he had intentionally slid down the slope on the ice but
stopped himself before reaching the water. Investigator Bird did not return to
the accident scene the following day to further his investigation because a
snowfall the night of February 3, 2002 changed the character of the area. He
acknowledged that he did not know exactly where the decedent entered the
On cross-examination Investigator Bird testified that he has been a member of
the State Police continuously since September 22, 1986 and has been an
investigator since December 31, 1992. He identified Exhibit H as including an
investigative report which he completed along with various statements, a
drawing, receipts and a report of the medical examiner. The Exhibit contains
two separate statements obtained from Joseph Mangano, one completed by Trooper
Maxian at 4:45 p.m. on February 3, 2002 and another obtained by the witness,
consisting of two pages and a map, completed at 10:00 p.m. the same day. The
report also contains a statement from Larry J.
dated March 25, 2002. Exhibit H was received in evidence over the objection of
claimant's counsel with noted exceptions as set forth in the
The witness marked Exhibit 21 to identify the location where he believes the
claimant fell. He testified that upon his arrival at the scene he was directed
to a secured area where he observed "a number of footprints that were
intentionally dug into the hard ice" (T 41) and an indentation which he
concluded was "the indentation of a hip or another body part" (T 42). The
witness disagreed that the decedent fell just off the bike path as alleged by
the eyewitness. Rather, he concluded that decedent's fall actually occurred
closer to the trees depicted in Exhibits 19-20 and that decedent's slide down
the slope would have been interrupted by the trees if the decedent had fallen
off the bike path as alleged by the eyewitness. Investigator Bird reasoned
that the decedent fell after making his way to the clump of trees and then
proceeded in an unobstructed fashion down the slope and into the river.
The witness next marked on Exhibit 2 the area where he observed finger marks in
the icy surface of the slope purportedly made by Mr. Mangano when stopping his
own intentional descent toward the river on the date of the accident. Referring
to Exhibit 3 the witness described the area depicted in the photograph as an
accurate representation showing a slight downward grade from the bike path to a
level area and then a steeper slope which leveled off prior to the river edge.
Mangano's finger marks were observed approximately four to five feet above the
base of the second slope.
The witness described his action in preparing the map attached to his
investigation report and indicated which aspects of the map he provided and
which were supplied by Joseph Mangano. Mangano made no changes in either the
written deposition or the map prior to signing the statement and initialing the
On redirect examination the witness admitted that he had no training as a
cartographer and that the map was not drawn to scale. He further admitted that
he took no measurements at the scene and that it was possible that the
indentations he observed in the icy surface could have been made by a person or
persons unrelated to this case. Investigator Bird acknowledged that Mr. Mangano
never advised him that the footprints observed near the clump of trees were made
by the decedent.
Trooper Joseph Pastulo who was employed at the Thruway Communication Center,
200 Southern Blvd. in Albany on February 3, 2002 was the next witness. He
professed no recollection of the incident or any action taken by him on that day
as a senior radio dispatcher. He was not cross-examined and his testimony
requires no further comment.
The Court received in evidence without objection Exhibits 4-10, 12-14, 17, 18
and 22-24 which had been previously marked for identification.
The next witness was Joseph C. Mangano who testified that he had known the
decedent for approximately seven to eight months prior to February 3, 2002. On
that day he arrived at the decedent's house after arranging to meet by
telephone. The two men stayed at decedent's home for 30-45 minutes during which
they watched the X-Games on television. The witness denied that he drank any
alcohol or smoked marijuana during that period of time. The two men then
proceeded to Lock 8 which Mr. Mangano related was approximately eight to nine
minutes away from decedent's home. Mr. Mangano denied having gone to Lock 8
with the decedent prior to the day in question.
He recalled that prior to February 3, 2002 the weather had been stormy with a
snowstorm followed by ice and freezing rain. He described the weather on
, however, as nice. The witness denied that either he or the decedent smoked
marijuana or drank alcohol as they drove to the lock in the witness's truck.
The witness offered the following description of their actions after exiting the
truck in the Lock 8 parking area (T 74):
A. Well, we walked on the bike trail and we were walking, you know, towards
the right and realized how slippery it was on the bike trail, and then I recall
myself, you know, kind of playing around the ice, kind of sliding back and
forth, and there was – if you can see the hills, it was kind of a drop
then it would level out again, and then it would drop again, and what I did is I
actually sat on my butt and I kind of nudged my way down off the bike trail and
I slid down to that first level, and thank God, you know, I had nails so I could
get my – a grip and stop myself, and then I proceeded to move to the left
and grabbed a chain and was able to pull myself back up to the top of the bike
The witness stated that Exhibit 13 shows the slope down which he slid and
Exhibit 7 depicts his starting point (indicated by green pen mark).
Upon further questioning the witness in relevant part offered the following
Q. Now, when you got up from the hill, did you say anything to Doug?
A. Well, I told him – you know, I told him how slippery it was.
Obviously, he knew how slippery it was too because he was right next to me, and
he seen me, you know, go actually – go down the first slope.
Q. What – and explain what did you do after that, the both of you.
A. Well, after I got back on top of the hill onto the bike trail, as I was
walking over to him, he was playing, you know, off the bike trail a little bit,
sliding back and forth and lost his footing.
Q. Now, when you say he was sliding back and forth, was he sliding back and
forth on the bike path itself?
A. No, not directly on the bike path, no.
Q. Does Exhibit 7 show the area in which he was sliding back and forth as you
A. Yes. Do you want me to mark it?
Q. If you can, with the green pencil.
(Witness marks document.)
Q. Now, you've made a mark that's above the green mark that you previously
made where you were.
THE COURT: Can I see it, please?
(Photograph proffered to the Court.)
Q. You indicated where you had started to slide down, correct?
THE COURT: We need another – can I have a red – do you have a red
marking pencil? Circle your second mark, sir, the one which indicates the area
of where the decedent was sliding back and forth with a – circle it with
that red pen, please.
(Witness marks document.)
Q. I'm going to show you Exhibit 5, J.C.
THE COURT: Before you do, just for the purpose of my notes, you indicated that
the decedent was sliding back and forth in the area slightly off the bike trail
THE WITNESS: Correct.
THE COURT: – which you indicated on the photo, correct?
THE WITNESS: Correct.
THE COURT: What happened then?
THE WITNESS: After he lost his footing –
THE COURT: Just tell me what happened. He was sliding back and forth. What
THE WITNESS: He lost his footing and slid down the hill.
THE COURT: Okay, thank you.
BY MR. KIRBY:
Q. I'm going to show you, J.C., another photograph looking up on the
Q. And can you, using that photograph, indicate where it was Doug was when he
lost his footing, as you've just described.
A. Yes. X it?
Q. M-m h-m-m.
(Witness marks document.)
Q. In Exhibit 5, J.C., there's a – you've marked it to the right of
several trees, is that correct?
A. Well, it's actually – it's to the left.
Q. As you're looking down at the river, it would be to the left of the
Q. Okay. And about how far away from those trees was Doug when he
A. I'd say about ten to twelve feet.
Q. Doug – or J.C., I'm sorry for making that mistake. Exhibit 15, does
that show the bike path in the area of where Doug was when he slipped and
started falling – or sliding down the hill?
Q. And can you indicate on that exhibit with an X where you saw Doug lose his
footing and start going down.
(Witness marks document.)
Q. And as you're – and what direction, by the way, were you two
A. We were walking to the right down the bike path.
Q. Down the bike path.
THE COURT: Sir –
Q. West to east.
THE COURT: – you were walking to the right as –
THE WITNESS: Right.
THE COURT: – you were standing looking at the river?
THE WITNESS: Correct.
THE COURT: M-M h-m-m.
Q. And the river would have been on – on your left, correct?
Q. Okay. Now, when – when Doug was sliding back and forth, was he going
perpendicular to the river?
A. He was going parallel with the bike path.
Q. Bike path. Okay. So he was sliding forward more or less?
Q. Okay. What were you doing at that time?
A. I was walking back towards him.
Q. Now, how were you planning on getting down to where – strike that.
Where you heading towards? What were you trying to get to?
A. We really didn't have no plans of going anywhere. We just came to the
Q. Okay. Now, after you saw Doug fall, where did he end up going?
A. Into the river.
After the decedent's fall and slide down the slope the witness went to the area
of the bike path where decedent started his descent and watched his friend go
into the river. He then proceeded east on the bike trail and saw the decedent
in the river. He proceeded down through the woods to the river where he
observed the decedent approximately 20-25 feet from shore and shouted to him to
keep swimming. The decedent reportedly said that it was cold and his clothes
were dragging him down. The decedent then went under the water and disappeared.
Mangano returned to his truck and drove to the Rotterdam Police Department. He
saw no lifelines or life preservers at the scene and did not call out for help.
On Defendants' Exhibit A the witness marked with a green pen the approximate
location of decedent's slide.
Mangano attempted to report the accident at the Rotterdam Police station which
was closed. He did, however, report it to an unidentified individual he met in
the parking lot of the police station and that person used a two-way radio to
report the incident. Mr. Mangano recalled that he then returned to Lock 8 and
gave a statement regarding the accident to police. He also remembered talking
to a Rotterdam police officer and someone who might have been a State Trooper
at his house that night. At that time he made some marks on a map which the
police provided (Exhibit H) but at trial he stated that the decedent's slide
began to the left of the trees as one faces the river rather than in the area
indicated on the map which is to the right of the trees. He recalled the
decedent's slide down the slope to the water as being more or less in a straight
With regard to the decedent's actions preceding his fall the witness stated
that he observed the decedent slide back and forth seven or eight times prior to
his fall. He did not recall whether the decedent was facing the river or down
the bike path as he slid.
On cross-examination Mangano testified that he was 19 years old on the date of
this incident and was a student at a local community college. On that day the
witness arrived at the decedent's home "around noonish" (T 101) and proceeded to
watch the X-Games which feature extreme winter sports including snowboarding,
snow biking and extreme skiing. He testified that he and the decedent left the
house "around one" (T 102) and went to the lock to smoke marijuana which the
decedent had rolled into a joint and placed in his pocket. The witness denied
that either of them smoked the marijuana prior to arriving at the lock.
Due to a winter storm ice was visible in the witness's yard, on the trees and
on the slope near the lock. At the lock the witness wanted to see how slippery
the slope was so he slid down the slope "on his butt" (T 103). As he slid down
the slope 10 to 15 feet he became scared and dug his fingers into the icy
surface to arrest his descent. He could see that the river was open and free
flowing. Mr. Mangano denied that the decedent laughed at him after he climbed
back up the slope and arrived at the bike trail despite being shown the second
of the two sworn statements he gave to police in which he stated that Doug (the
decedent) was laughing at him when he got back to the bike trail. When asked
whether he told the decedent the slope was icy and slippery he stated "Yes I
did. He knew that." (T 106). Mangano testified that the decedent was sliding
about five feet off the riverside edge of the bike trail. He stated that the
decedent was facing the river and sliding parallel to the bike trail first in
one direction then in the opposite direction. The decedent lost his footing and
fell on his backside.
The witness alleged that decedent's fall occurred approximately 10 minutes
after their arrival at the lock. In the first of the two sworn statements
given to police Mr. Mangano said: "We had just started walking the trail when
Doug stepped off the trail onto the icy bank that goes down from the trail to
the canal. He was just playing around on the icy slippery bank". He
acknowledged that the statement did not include any reference to the decedent's
action of sliding back and forth on the bank.
With reference to the second sworn statement the witness admitted that he
stated "when we got near a set of trees and Doug put his feet in the ice and
beyond the clump of trees is when he slipped and slid down the hill". He
attempted to explain that he meant to say Doug put his feet "on" the ice not
"in" the ice. He acknowledged that he did not tell the police at the taking of
the second statement that the decedent was sliding back and forth parallel to
the river prior to his fall. The witness sought to explain the discrepancy
regarding the location of the decedent's fall relative to the clump of trees
shown in various photographic exhibits by stating that on the afternoon and
evening of this tragic accident he was upset and now that he "can think about it
. . . [he] believes he was before those trees" (T 117).
Mangano denied having attempted any maneuvers he and the decedent had seen that
afternoon on the X-Games. Finally, in contradiction of his direct testimony,
Mangano acknowledged that he and the decedent had been to Lock 8 about one month
prior to February 3, 2002 to smoke marijuana but had not ventured onto the slope
on that occasion.
On redirect examination the witness related that he saw 5-10 rescue and law
enforcement personnel walking in the area off the bike path near the clump of
A brief re-cross-examination centered on the information given to State Police
personnel regarding the point at which he saw the decedent enter the river and
the general area near the clump of trees where the decedent's descent
The Court conducted a short examination of the witness regarding a conversation
Mangano had with the decedent after his aborted slide down the slope. The
witness testified that he told the decedent the slope was "really slippery" (T
Seth Hendrick, an assistant traffic supervisor with the New York State Thruway
Authority was called as claimant's next witness. He stated that on February 3,
2002 he was notified by a senior dispatcher (Joseph Pastula) of a possible
drowning at the Rotterdam lock. He reported that he had never investigated
anyone falling into the water at a lock but had investigated reports of people
swimming, fishing and trespassing at locks other than Lock 8.
The witness had no knowledge regarding the division of jurisdiction over the
subject area between the Canal Corporation and the Thruway Authority. Upon
arriving at the scene he took photographs with his camera but did not take any
measurements. He observed an ongoing search and rescue operation involving
divers, helicopters and other personnel. He did not make any determination
regarding the decedent's point of entry into the water or his starting point on
the slope. While at the scene the witness remained in the company of retired
State Police Sergeant Randy Greg who showed him various areas including one
containing "footprints in the snow between two bushes" (T 132) where the
decedent might have begun his slide. He photographed that area.
Mr. Hendrick identified Exhibits 1-24 as the photographs he took at the scene
on February 3, 2002 and testified that they fairly and accurately depict the
conditions as he observed them that day. He testified to the presence of
approximately 50 people at the scene during the 1-1½ hours he was present.
He observed that those who were walking on the slope near the woods depicted in
some of the photographs had difficulty keeping their footing and believed that
sand was brought to the scene although he was unsure by whom. The witness was
also unsure whether anyone else photographed the scene that day.
On cross-examination the witness indicated that he observed people at the scene
experiencing difficulty walking on the slope and other snow and ice covered
The next witness was Garret O'Connor, an employee of the New York State Canal
Corporation, whose duties include the administration of permits and leases on
canal land. He testified that the bike path at Lock 8 exists pursuant to a
permit issued by the Canal Corporation to Schenectady County. The witness
believed that the State Department of Transportation (DOT) assisted in the
creation of the bike path in the 1970s but was unsure of the extent of the
State's actual involvement. He acknowledged that the land where the lock is
located, including the slope and the area where picnic tables are situated, is
owned by the State of New York. He was unsure, however, how far up the slope
the State's ownership rights extended. According to the witness no recent
survey has been conducted and generally the State has relied upon historic maps
from the turn of the century.
The witness did not know what work had been performed on the approach wall at
or near Lock 8 since it was initially installed but was certain that some work
had been done there. He did not know when the picnic tables were placed near
the lock or when the slope near the tables was last changed or modified.
The witness could not identify the photographer who took the photos identified
at trial as defendants' Exhibits A-C nor could he explain why or when the photos
were taken. Exhibits B and C were received in evidence. Exhibit A had been
received previously. The witness recognized the area depicted in the
photographs and noted the labels in the border surrounding each photograph. He
acknowledged that the approach wall shown in Exhibits A and B falls under the
Canal Corporation's jurisdiction and is maintained by it. He did not know
whether the picnic tables are owned or maintained by the Canal Corporation
although he stated the land on which they are situated is owned by the
The witness admitted being aware of a Canal Revitalization Program which
occurred in the mid 1990s but did not know if Lock 8 was one of the areas
designated for revitalization. The plan was set forth in a spiral-bound book
format and indicates which areas of the canal system the drafters of the plan
wished to see enhanced.
The witness was unable to state the approximate height of the approach wall or
the depth of the river at or near the section of the wall in the vicinity of the
picnic tables. He would not state that the Canal Corporation encouraged the use
of the picnic area at Lock 8 except to admit that tables were placed there. The
witness was not aware of any Canal Corporation restrictions regarding use of the
area by the public.
Mr. O'Connor was aware that the public used the bike path near Lock 8 during
the winter months but did not know what specific activities the public engaged
in on the path. He also knew that the bollards depicted in defendants' Exhibits
A-C were commonly used by boats waiting to go through Lock 8 and that there were
ladders built into the approach wall to assist boaters in exiting their
According to the witness railings such as those visible in Exhibit 23 were
placed around the lock area to protect lock workers as well as members of the
public who might venture into that area. He never saw any maps, drawings or
plans recommending placement of railings along the approach wall and was not
privy to any discussions regarding placement of a fence in that area. He was
unfamiliar with any study or discussion regarding the placement of lifelines or
life rings in the area depicted in defendants' Exhibits A-C prior to February
2002. He did not know where life rings and lifelines were kept at Lock 8 or how
many such devices were available. The witness had seen photographs of another
lock, Lock C-4 on the Champlain Canal, where there are railings near the picnic
area. Mr. O'Connor opined that fencing the area of the approach wall was
impractical since it was a recreational area used for fishing and provided a
place for boaters to alight from their vessels.
The witness did not know if there was a standing rule or order regarding the
number of life lines or life rings required to be placed at a lock. While
acknowledging that locks are subject to inspection he did not know the matters
covered by the inspections.
On cross-examination the witness stated that his formal title is that of Permit
Coordinator and as such he administers land use permits and leases for canal
lands and oversees the use of canal lands by municipalities, private individuals
and corporations. The witness related that in February, 2002 there was in
effect a permit authorizing the County of Schenectady to use a portion of the
land at Lock 8 for a bike trail and transferring all maintenance responsibility
over the permitted area to the county.
Claimant's next witness was James Carangelo, a member of the Rotterdam Junction
Volunteer Fire Department who responded to Lock 8 on February 3, 2002 pursuant
to a call received from the Rotterdam Police Department at 2:35 p.m. The
Schonowe Fire Department apparatus was already at the scene when Carangelo
arrived. He and his department members were directed to walk east on the bike
path to look for anyone or anything "clinging to the trees or whatever" (T
174). He noticed an area which had been marked as the probable area of the
decedent's fall. Referring to Exhibit 15 the witness recalled the area of the
purported fall to be within two or three feet of the green "X" marked on
Mr. Carangelo remembered the weather on the day prior to the incident as cold
and raining and that the snow had crusted over. He described the bike path as
packed down due to traffic of cross-country skiers and snowmobilers. He did not
venture onto the slope but stayed on the path as he performed his assigned
The witness related that he regularly used the bike path to bicycle in summer
and to cross-country ski in winter. He had never responded to a falling
incident at Lock 8 prior to the date in question.
On cross-examination the witness stated that he returned to the firehouse at
6:15 p.m. He testified that accident calls received prior to the subject
accident by the Rotterdam Junction Fire Department regarding the bike path at
Lock 8 involved bicycle accidents.
Joseph Coppola was claimant's next witness. He was also a member of the
Rotterdam Junction Fire Department who, like James Carangelo, responded to a
mutual aid call from the Schonowe Fire Department. He too was directed to walk
the bike path and look for decedent or his body. The witness testified that he
understood the decedent fell at the location marked by a green "X" on Exhibit 15
which he identified as the same area where a marker had been placed on February
3, 2002. The path and the adjacent slope were described as "snowy and ice" (T
182). He did not recall weather conditions on the day prior to the
On cross-examination the witness indicated that he was President of the
Rotterdam Junction Fire Department in February 2002 and had no direct knowledge
or recollection regarding the place where the decedent began his descent into
the river. There was no redirect examination of this witness.
David Nelson, the brother of claimant Janice Briggs, next testified for the
claimant. He alleged that upon learning of the accident at approximately 4:00
p.m. he and his nephew Dominic Criello went to the scene. After arriving he
stood and watched the activities of rescue personnel. He recalled that there
had been an ice storm the night before the accident. He alleged that the river
was flowing fast near the dam but it appeared frozen below that point.
On cross-examination the witness was shown Exhibits 23, 22, 19 and 11 and
acknowledged that as depicted in those photos the river was free flowing in all
directions and not frozen as he testified on direct examination.
Richard Maxian, a New York State Trooper, was claimant's next witness. On
February 3, 2002 Trooper Maxian was dispatched to Lock 8 to investigate a
reported drowning. He recalled the day as cloudy and stated that an ice storm
had occurred in the recent past although he was unable to specify a precise
date. There were police and civilians at the scene when he arrived. He talked
to several people including a young man in a Rotterdam Police car from whom he
took a written statement. He recalled the area leading to the edge of the canal
as icy. He saw no markings on the ground to indicate the decedent's path. The
witness left the scene with a Rotterdam policeman to notify the family of the
missing person. He performed no investigatory functions at the scene other than
taking the statement of Joseph Mangano.
On cross-examination Trooper Maxian stated that he advised Joseph Mangano to
tell the truth prior to the taking of the statement and afforded Mr. Mangano an
opportunity to read and correct his statement prior to signing. The witness
averred that Mangano had not indicated why he and the decedent were at Lock 8
except to say that they "were walking there" (T 200). Upon the completion of
his statement the witness advised Mangano that he was free to go.
The witness's redirect examination was unremarkable.
Joseph Ryan, the Director of Public Works for the County of Schenectady in
February 2002 was claimant's next witness. The witness testified that the Lock
8 bike path is not plowed in the winter when it is used primarily by
cross-country skiers and snowshoers. The witness related, somewhat anecdotally,
that the bike path had been a towpath for the barge canal which was constructed
by the State and turned over to various localities. This portion of the bike
path was sponsored by the County of Schenectady. Exhibit 41, consisting of a
memo from the Schenectady County Attorney, a map and a real estate permit for
use and occupancy of Canal Corporation property signed in 1977, was received
in evidence without objection.
Mr. Ryan testified that the County spread sand at the scene so that search and
rescue personnel could approach the lock area. With regard to maintenance of
the bike path, the witness indicated that Schenectady County is responsible for
the eight-foot-wide path itself as well as for a couple of feet on either side.
The County inspects the path monthly for downed trees, broken signs or other
items or things needing repair. The County is responsible to maintain the
bike path right-of-way only and has no maintenance responsibilities for the
slope or picnic area at Lock 8.
The State's cross-examination of the witness included questions regarding the
State permit issued in the 1970s. The witness testified that the County of
Schenectady "maintained an area of the bike path from beginning at the Community
College and the terminus would be at Strafford Road in Rotterdam Junction" (T
214) including the portion of the path at Lock 8 on a year-round basis. Exhibit
41 specifies the permitted area is 15 feet wide on the westerly side of Lock
Number 8, Erie Canal, along the towpath. The witness stated that the asphalt
portion of the bike path is generally 8 feet wide with some variations of width
particularly where vehicle crossings are located.
The witness served as Deputy Director of Public Works for approximately two
years prior to being appointed Director. In either title he could recall having
received only one complaint regarding the bike path in the area of Lock 8 and
that related to parking bumpers in the parking lot which had been pushed onto
the path. Other complaints not specific to the Lock 8 area were routine
complaints related to the trail surface which were received prior to a repaving
project in 2000. The witness could recall no complaints related to safety at or
near Lock 8 and knew of no incidents similar to the one involving the decedent.
It was his understanding that the Town of Rotterdam owned a majority portion of
the bike trail near Lock 8. He was unsure of the ownership of the parking area
but knew that it was not maintained by the County of Schenectady except that the
County had planted shrubbery adjacent to the parking lot and installed some
railroad ties. The witness was unable to testify as to whether the planned
improvements set forth on defendants' Exhibit J were fully implemented or were
revised. There was no redirect examination of this witness.
The next witness was Nicholas Bottisti who is employed by the Canal Corporation
as a Canal Structure Operator. In February 2002 the witness worked a 40-hour
week, Monday through Friday 7:00 a.m. to 3:30 p.m. The witness did not recall
having previously seen a document entitled On-The-Job Canal Structure Operator
Training - 1993 which was shown to him at trial. He denied any knowledge of the
extent of the Canal Corporation's ownership of land on either side of Lock 8 but
expressed familiarity with the approach wall and picnic area which were present
in 1998 when he began working at Lock 8. Mr. Bottisti testified that Canal
Corporation employees mowed the grass and picked up litter at the Lock 8 picnic
area. He identified the grass and gravel road depicted in defendants' Exhibit C
as an access road used by the Canal Corporation to maintain the area but did not
know who owned the road. The Canal Corporation did not plow, sand or salt this
access road in winter. The area around the lock is open from 7:00 a.m. to 11:00
p.m. year-round according to the witness. No railing was placed east of the
lock along the approach wall during this witness's tenure and during the winter
visitors in the picnic area were rare. He had observed people using the bike
path during the winter.
The witness knew of no lifelines or life rings installed in the areas depicted
in defendants' Exhibits A and C between April 1998 and February 2002. It was
not part of the witness's duties to place lifelines or life rings in the area.
Prior to February 2002 the witness never saw anyone swimming or jumping off the
approach wall and he never had occasion to use a lifeline or life ring at Lock 8
except to practice throwing them approximately once per year. In February 2002
life rings were located in the middle of the abutments holding the structure
over the lock. They were located outside the structure but within an enclosure.
He marked Exhibit 14 to show the location of the life rings.
The witness had no discussions with anyone at the Canal Corporation regarding
the use or installation of railings along the approach wall at anytime prior to
the February 2002 accident.
On cross-examination the witness testified that in the summertime he sees
people fishing by the eastern or lower approach wall and others watching boats
go back and forth. Some boaters tie their vessels to the wall while waiting to
go through the lock. No fees are charged those who fish or picnic in the area
of the approach wall or those who hike across the property to enjoy the scenery.
He admitted that he has seen employees of an entity other than the Canal
Corporation mow the area of the bike trail. The witness testified that he
generally does not pay attention to people using the picnic area near the
approach wall. No plowing is done in winter, no abrasives are applied to
provide access to the river for fishermen and no effort is made to clear the
area around the tables of snow and ice. The witness was not subjected to a
Robert Wiss was claimant's next witness. He related that he has been employed
by the Canal Corporation or Thruway Authority on a full-time basis since the
Spring of 1992. He was initially hired by the Canal Corporation as a seasonal
employee (May-November) at Lock 3 in Waterford and again as a seasonal employee
at Lock 5 which is located one-half mile west of Lock 3. His next assignment
was at Lock 6 which is located an eighth of a mile west of Lock 5. Lock 5 and
Lock 6 have picnic areas located next to the lock chambers (T 260-262) and each
had a railing between the picnic area and the lock chamber.
Claimant's Exhibit 39 entitled On-The-Job Canal Structure Operator Training -
1993 was identified by the witness and received in evidence over defense
counsel's objections. That document provides that life preservers with
handlines were to be provided and placed one on each side in the center of the
lock, with a surrounding enclosure. Additionally it stated handlines of
adequate size and length should be placed in the control cabin at each end of
the lock. The witness recalled that the size or circumference of life rings was
increased at some point during his tenure.
Mr. Wiss was appointed Chief Lock Operator at Lock 8 in 1998. He did not
recall receiving periodic instructions in either lock operation or the use of
lifelines or life rings. While the witness recognized the area depicted in
defendants' Exhibit A he did not know who took the photo and denied being part
of any study or analysis of the lock in January 2002. He testified that from
1998 to 2002 no picnic tables were added at Lock 8. While the public was
permitted to use the tables they were not specifically invited or encouraged to
The witness was not familiar with the canal system revitalization program
allegedly initiated in 1995 as it affected Lock 8 and he had never visited the
Canal Corporation's web page. Fishing was the most common use of the area
depicted in defendants' Exhibit A. During winter the area is generally used by
sightseers. While mowing is done by the Canal Corporation up to the bike path
the witness stated that he has no responsibility for the path itself. The
access road depicted in defendants' Exhibit C is used by the Canal Corporation
but the witness did not know who owns the road. It is never plowed or sanded in
winter. Mr. Wiss could not recall any training or instruction regarding the
public's use of the picnic area.
The witness knew of no one who had fallen off the approach wall prior to
February, 2002 and had never seen anyone swimming in that area. He acknowledged
that there were no railings, lifelines or life rings in the area of the approach
wall and none were contemplated or discussed prior to the subject accident. The
only railings at the site were around the perimeter of the lock chambers. The
witness described the bollards located along the eastern approach wall as
instruments to which boats could be tied off and the ladders built into the
approach wall as designed to allow boaters to access the land.
The witness estimated the distance from the top of the steel approach wall to
the water line as approximately 10 feet. In February 2002 the river was not
frozen and the current flowed to the east. There were no public telephones in
the area of the lock or the adjacent picnic area.
Between 1998 and February 2002 the witness placed two life rings in the center
of the lock on each side and placed one ring at the upper and one at the lower
end of the chamber. The number of lifelines, however, did not increase during
that period. Lifelines were kept inside the control cabins (
Exhibit 14 and 23) which were locked when not occupied. Life ring
placement was identified using Exhibit 23. The witness's testimony in this
regard mirrored that of Nicholas Bottisti discussed above. The access road at
the site was improved with additional stone laid by Canal Corporation employees
On cross-examination Mr. Wiss related that the canal navigational season runs
from May to November. The witness explained the general operation of Lock 8,
including the use of the dam, lock chamber and gates. In winter the equipment
is dismantled and serviced by him and his assistants. He, like Mr. Bottisti
before him, testified that the public is not charged a fee to fish from the
approach wall, to use the picnic tables or grills in the area or to hike on
Canal Corporation property.
The witness never saw anyone swim in the area of the lower approach wall and
was unaware of anyone falling into the river from that area prior to this
incident. No winter maintenance is performed by Canal Corporation employees in
the picnic area. He stated that he was not aware of any complaints regarding
the lack of a railing or a fence at the lower approach wall.
On redirect examination Mr. Wiss reiterated that the only railings at Lock 8
are those surrounding the lock itself. He described public use of the area
during winter as minimal and never considered placing life rings in the picnic
area for use by wintertime visitors since "there's nobody down there" (T 311).
The witness did not consider it feasible to close off the approach wall area in
On re-cross-examination the witness agreed with defense counsel that access to
the railing on the north side of the lock could only be gained by crossing the
gates where access is restricted to employees only.
The claimant's final witness was Steven Sweeney, an engineer with the New York
State Thruway Authority who became a Canal Corporation employee in March 2000.
Prior to that date he had been employed as an engineer by the New York State
Department of Transportation (DOT) beginning in September 1977. Mr. Sweeney
became a licensed engineer in New York State in 1984 and from 2000 to the
present has overseen maintenance and operation of approximately one-third of the
canal system, including Lock 8. He related being familiar with a 1990 plan to
improve the southeastern approach area at Lock 8 when he was employed by DOT.
The improvement was necessitated by the deterioration of the prior concrete
wall's foundation. The witness was unaware whether there were picnic tables in
the area before the improvement but upon his review of the 1990 plans noted
that the slope of the area behind the wall was "changed somewhat" (T 321) as a
result of the project. He did not know, however, whether the slope of the area
from the bike path to the river was increased or decreased.
Exhibits 43, 44 and 45 were received in evidence without objection. The
witness agreed with counsel's observation that Exhibit 44, which he described
as depicting the "layout of Lock 8 southeast approach wall . . . back in 1990
before the work was done" (T 326), contains a reference to a fence although he
was unfamiliar with the fence's appearance or composition. He further agreed
that the fence was likely removed as part of the renovation but did not know why
the fence would have been installed in the first instance. Exhibit 45, drawing
number 7, shows the new slope but not the old slope. It appears from the
drawing that part of the renovation included the creation of an anchor wall
located beneath the slope which was connected to the new approach wall to
prevent it from being moved by the river's current as the old wall had
Life ring and lifeline placement at the various locks was under the witness's
jurisdiction but he played no role in their actual placement at the site.
According to general standards developed by the Thruway Authority Safety Office
life rings should be located "within approximately 100 feet of access" (T 331).
The witness took no part in nor was he privy to any discussion from 1990
through February 2002 regarding the erection of a barricade or fencing along the
eastern approach wall at Lock 8.
Mr. Sweeney admitted being familiar with the Canal Recreation Water Plan which
encourages use of lock areas by the public. This was accomplished by the
placement of picnic tables and other amenities adjacent to locks.
The witness could not identify the person who took the photograph received as
defendants' Exhibit A. He acknowledged that minor structures at Lock 8 are
inspected in-house every few years. He did not know if Exhibit A was taken as
part of an inspection of Lock 8 but indicated that photos are often taken to
document conditions encountered during the inspection process. He was unaware
of any problems detected during a January 2002 inspection of Lock 8 . The
witness agreed with counsel's suggestion that the soil in the area housing the
picnic tables shown in the photograph (Exhibit A) would have been removed and
replaced during the 1990 renovation. On the day following the accident the
witness visited the site and noted that the water level was 1½ feet above
On cross-examination the witness stated that he did not know the purpose of the
fence depicted in the 1990 drawing. He averred that a fence was not required in
the area shown in the drawing and he was not aware of any complaints received
regarding its removal. He also testified that he visited Lock 8 the Monday
following the decedent's accident. He noted at that time that the water level
was 9½ feet below the top of the approach wall. Mr. Sweeney then testified
that the ladders attached to the approach wall are more than 9½ feet in
While the witness receives complaints regarding the locks he oversees as part
of his normal duties no complaints were made regarding either the lack of
fencing at the Lock 8 approach wall or the steepness of the slope from the bike
path to the river at this lock prior to February 3, 2002 .
On redirect examination the witness stated that the area near the southeastern
approach wall which includes the picnic tables was generally level with perhaps
a slight downward slope toward the river. He was unaware of any studies
regarding placement of fencing or barricades on the approach walls of canal
Upon the conclusion of this witness's testimony claimant rested. Defense
counsel moved to dismiss the claim and then called Janice Briggs to the
Janice Briggs testified that her son visited the Lock 8 area "a couple of times
a month" (T 353). He enjoyed the scenery but was not a very good swimmer.
There was no cross-examination of this witness. The defendant rested and the
trial was concluded at that point.
General Obligations Law § 9-103 (1) (a) and (b) provide as follows:
1. Except as provided in subdivision two,
a. an owner, lessee or occupant of premises, whether or not posted as provided
in section 11-2111 of the environmental conservation law, owes no duty to keep
the premises safe for entry or use by others for hunting, fishing, organized
gleaning as defined in section seventy-one-y of the agriculture and markets law,
canoeing, boating, trapping, hiking, cross-country skiing, tobogganing,
sledding, speleological activities, horseback riding, bicycle riding, hang
gliding, motorized vehicle operation for recreational purposes, snowmobile
operation, cutting or gathering of wood for non-commercial purposes or training
of dogs, or to give warning of any hazardous condition or use of or structure or
activity on such premises to persons entering for such purposes;
b. an owner, lessee or occupant of premises who gives permission to another to
pursue any such activities upon such premises does not thereby (1) extend any
assurance that the premises are safe for such purpose, or (2) constitute the
person to whom permission is granted an invitee to whom a duty of care is owed,
or (3) assume responsibility for or incur liability for any injury to person or
property caused by any act of persons to whom the permission is granted.
"General Obligations Law § 9-103 extends broad immunity from liability to
private as well as governmental landowners against claims for ordinary
negligence brought by members of the public who come on their property to engage
in certain enumerated activities where the land is suitable for those
Perrott v City of Troy
, 261 AD2d 29, 30-31; Sega v State of New
, 60 NY2d 183; Clark v State of New York
, 178 AD2d 908). The
statute's purpose is to encourage landowners to open their land to public use by
persons engaged in covered activities (Sena v Town of Greenfield
, 91 NY2d
611; Ferres v City of New Rochelle
, 68 NY2d 446). Its protections do not
affect the liability of a "government landowner who negligently operates or
maintains a supervised recreational facility since such landowner needs no
incentive to open such land to the public use" (Keppler v Town of
, 267 AD2d 745, 746). Nor does immunity apply in instances where
those participating in an enumerated activity on public lands have been charged
a fee for the privilege (General Obligations Law § 9-103  [b];
Wilkins v State of New York
, 165 AD2d 514). In cases involving
governmental landowners the determination whether the immunizing effect of the
statute applies is centered on "the role of the landowner in relation to the
public's use of the property" (Blair v Newstead Snowseekers
, 2 AD3d 1286,
1288, citing Stento v State of New York
, 245 AD2d 771). Where General
Obligations Law § 9-103 applies a claimant may recover only where it is
shown that the defendants' actions constituted "willful or malicious" conduct
(General Obligations Law § 9-103  [a]). "To qualify as willful or
malicious, the proponent must show 'an intentional act of unreasonable character
performed in disregard of a known or obvious risk so great as to make it highly
probably that harm would result' " (Reid v Kawasaki Motors Corp., U.S.A.
189 AD2d 954, 956, quoting Gardner v Owasco Riv. Ry.
, 142 AD2d
In the instant matter, it is clear that the decedent was not charged a fee to
use the bike path at Lock 8 and that the path or trail was both conducive and
suitable for use by the public for hiking, snowshoeing and cross-country skiing.
Since the Court determines that the area of Lock 8 where this accident occurred
was not "supervised" and that claimant was engaged in "hiking" on or near the
trail at the time he slipped and slid down the slope and into the water the
claimant was required to establish willful or malicious conduct on the part of
the defendant. As claimant has failed to sustain the "high-threshold
Farnham v Kittinger
, 83 NY2d 520, 529) required to prove such conduct the
claim must be dismissed.
The proof established that the defendant permitted the construction of a bike
trail on its land and made several picnic tables available for the public.
Maintenance responsibilities with regard to the bike trail were specifically
conferred on the County of Schenectady and the State employees at Lock 8
testified that they had no responsibilities relative to maintaining the trail
and only limited responsibility with regard to the picnic area, primarily mowing
grass and picking up litter. In no way can it be said that "the State was the
owner and operator of a regularly supervised public recreational facility"
see Wilkins v State of New York
, 165 AD2d 514, 517) at Lock 8
under the facts of this case. The Canal Corporation employees at Lock 8 were
responsible for the operation of the lock during the navigation season and
maintenance and repair of the lock machinery and equipment at other times of the
year. Mr. Wiss and Mr. Bottisti did not oversee or supervise in any respect
persons upon the property for the purpose of picnicking or using the bike trail.
In his first statement to police Joseph Mangano related that he and the
decedent "came to Lock 8 to walk the bike trail." Mr. Mangano further testified
that both men were walking on or near the bike trail immediately prior to the
decedent's accident. In
Cometti v Hunter Mtn. Festivals
(241 AD2d 896, 897) the Appellate
Division, Third Department held that an individual injured while walking down a
ski trail in order to secure a place to watch a mountain bike race was "hiking"
for purposes of General Obligations Law § 9-103. The Court stated:
"[a]lthough not specifically defined under [General Obligations Law §
9-103] 'hiking' is defined in the Department of Environmental Conservation rules
and regulations as traversing land 'by foot or snowshoe for the purpose of
pleasure or exercise' (6 NYCRR 197.2 [a]). We find such definition to be
instructive and in accord with the Court of Appeals' assertion that uses
enumerated under the statute are 'self-explanatory' (Farnham v Kittinger
83 NY2d 520, 526). . . . We further note that an individual engaged in any of
the enumerated activities under the statute, with one exception not relevant
here (see, Farnham v Kittinger
), is presumed to be
doing so for recreational purposes and his or her subjective purpose is
irrelevant (see, Bragg v Genesee County Agric. Socy.
, 84 NY2d
544, 552, n 3)."
Relative to the instant matter, the Court finds that the decedent was "hiking"
for purposes of General Obligations Law § 9-103 at the time of his
accident. According to Mr. Mangano he and the decedent went to Lock 8 to walk
on the bike trail and were actually engaged in walking on the trail at the time
of the decedent's slip and subsequent slide into the river. Similar to the
conclusion reached by the Third Department in
, the Court here finds that "[t]hese facts and circumstances
support no other conclusion but that [claimant] was traversing defendants'
premises for pleasure and exercise such that [decedent's] activity falls
squarely within the enumerated activity of hiking under General Obligations Law
§ 9-103 (1) (a)"
. Even though the
decedent may have gone to Lock 8 that afternoon for a reason other than hiking,
it is clear that he was hiking or engaged in a sufficiently related activity
when injured (see Sega v State of New York
Cometti v Hunter Mnt. Festivals
; see also Reid v
Kawasaki Motors Corp., U.S.A.
, 189 AD2d 954, supra,
Since at the time of his accident the decedent was engaged in a specifically
enumerated activity on land which was conductive and appropriate for such
activity and since the activity was not supervised and no consideration was
charged the defendants are immune from liability (
see McCarthy v New York State Canal Corp.
, 244 AD2d 57, 60;
Myers v State of New York
, 11 AD3d 1020). As Justice Carpinello noted in
at 898 "[a] contrary conclusion would plainly defeat the
statutory purpose of encouraging owners to make their lands available for
recreational activities (see, e.g., Bragg v Genesee County Agric.
at 548-550; Farnham v Kittinger
at 525 - 526)." Similarly Justice Spain in Perrott v City of
, 261 AD2d 29, supra
, at 33, said: "Failing to confer immunity
here might well induce defendant and other municipalities to actively discourage
or prohibit the general public from engaging in unsupervised, statutorily
enumerated recreational activities . . . in direct contravention of the
legislative purpose underlying General Obligations Law § 9-103 (see,
Ferres v City of New Rochelle
, 68 NY2d 446, supra; see also
Sena v Town of Greenfield
, 91 NY2d 611, 615, supra
Appellate Division, Third Department reached similar holdings regarding
cross-country skiing in Stento v State of New York
(245 AD2d 771), and
fishing on Canal Corporation property in McCarthy v New York State Canal
While unnecessary to the disposition of this claim the Court notes that in
898, the Appellate Division, Third
Department recognized that notwithstanding the applicability of General
Obligations Law § 9-103 (1) (a) "[t]he mountain trail on which plaintiff
voluntarily traversed 'is a natural geographical phenomenon, the danger of which
is open and obvious rather than latent' (Coote v Niagara Mohawk Power
, 234 AD2d 907, 909)." The Court further observed that plaintiff
elected in that case to traverse a trail which she knew to be steep and
concluded that "[b]ecause the condition that caused her injuries was neither
latent nor concealed, plaintiff's injuries cannot be said to have resulted from
any breach of duty by defendant (see, Hofflich v Mendell
, 235 AD2d
784; Coote v Niagara Mohawk Power Corp.
, supra; Walter v State
of New York
, 185 AD2d 536; Tarricone v State of New York
, 175 AD2d
308, lv denied
78 NY2d 862)".
The same may be said of decedent's election on a February afternoon to visit
Lock 8 and once there to walk on and repeatedly slide back and forth alongside
the ice-covered bike path near the adjacent slope which descends steeply to an
unfenced approach wall and swiftly flowing river. The danger posed by the river
and the icy surface of the slope, which were sufficiently apparent that it
attracted Mr. Mangano's attention and prompted him to foolishly slide down the
hill, were both obvious to the adult decedent. Even if the icy covering of the
slope was not obvious, a conclusion belied by Mr. Mangano's testimony and the
photographic evidence received at trial, it became open and obvious (a) when the
decedent watched Mangano slide down the hill and climb back up with difficulty
and (b) when Mangano informed decedent after returning to the bike path that the
slope was "very slippery". Since these conditions were neither latent nor
concealed defendants owed no duty to warn of the danger. Decedent's conscious
and fool-hearty actions were clearly the sole proximate cause of the accident
and accordingly no liability attaches to the defendants (
see Salas v Town of Lake Luzerne
, 296 AD2d 643, 646, lv
99 NY2d 502).
Claimant's attempt to predicate liability upon the absence of fencing or
barricades at the approach wall, the absence of ladders or other means of egress
from the river and the absence of lifelines or life rings at the site is
unavailing. With regard to fencing or barricades, it is well settled that
"[p]roperty owners need not enclose natural geographical phenomena which present
open and obvious, in contrast to latent, dangers (
see, Diven v Village of Hastings-On-Hudson
, 156 AD2d 538, 539;
Olsen v State of New York
, 30 AD2d 759, affd
25 NY2d 665)"
(Casela v City of Troy
, 161 AD2d 991). The Court in Casela
specifically held at 991 that "riparian landowners who fail to erect fences are
not thereby chargeable with creating a dangerous condition (see,
Barnaby v Rice
, 75 AD2d 179, 182, affd on opn below
53 NY2d 720;
Smyke v State of New York
, 282 App Div 914, affd
307 NY 737;
see also, Lipscomb v City of Ithaca
, 115 AD2d 824,
The State cannot, therefore, be held liable for failing to erect a fence,
railing or barricade at the river's edge.
Similarly, there is nothing in this record to suggest that the presence of
ladders or other means of egress from the river or the presence of lifelines or
life rings would have prevented this tragic death. Joseph Mangano's eyewitness
testimony established that the decedent entered the river in the vicinity of the
eastern approach wall and reemerged from the water 20-25 feet from shore moving
eastward with the current. After a very brief conversation between the two men
the decedent went underwater and was not seen alive thereafter. The claimant
herself testified that the decedent was not a very good swimmer and the record
is devoid of any evidence suggesting that decedent was capable of making the
arduous swim to shore through obviously frigid waters to access a ladder or
other means of egress. The absence of such a device was of little consequence
in this case.
Moreover, Joseph Mangano testified that upon the decedent's entry into the
river he waited until the decedent emerged and then proceeded east on the bike
trail to the wooded area that bordered the shoreline. Even if lifelines or life
rings had been placed in the area near the picnic tables they would have been of
no use since the only person capable of using the devices never entered that
area opting instead for a safer approach through the woods. Mr. Mangano
testified that after the decedent went underwater for the second time and
thereafter failed to reappear he went directly to the parking area and then
drove to the Rotterdam Police Station. He did not testify that he searched the
area for a flotation device or rope and the brief reappearance of the decedent
afforded him little if any opportunity to engage in lifesaving activity. Under
these circumstances it cannot be said that the failure to maintain lifesaving
equipment in the area of the eastern approach wall at Lock 8 contributed in any
way to the decedent's tragic and untimely demise.
The instant claim is dismissed. The Clerk shall enter judgment in accord with
July 15, 2005
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
Hereinafter referred to as the decedent.
References to T followed by a number refer to
pages of the two-volume trial transcript whose pages are consecutively
Mr. Andrews was not called to testify at the
trial but it appears from his written statement that he discovered the
decedent's body in the Mohawk River on March 25, 2002.
As argued by defense counsel actual ownership
of the area of claimant's decedent's fall is at best questionable. This,
however, is not critical since the provisions of General Obligation Law §
9-103 apply to private and public landowners alike (see Sega v State
of New York