New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2005-029-505, Claim No. 106341


Personal injury claim; claimant tripped over an exposed drain at Bear Mountain State Park. Claimant failed to prove causation and construction notice necessary to establish a claim for negligence; therefore, claim 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:
Stephen A. Weinstein, Esq.By: Peter A. Frankel, Esq., of Counsel
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 22, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for personal injuries, medical care, pain and suffering and disability sustained by claimant who alleges that the State was negligent in failing to properly maintain the area outside of the cafeteria at the Bear Mountain Inn (hereinafter the Inn), located within Bear Mountain State Park (hereinafter Bear Mt. Park), in a safe condition. The trial of this claim was bifurcated and this decision deals only with the issue of liability.

On direct, claimant testified as follows: (1) on October 29, 2000 she was visiting Bear Mt. Park with her 11-month-old son, her parents, her aunt and aunt's husband, and a family friend for the purpose of a recreational outing; (2) claimant parked near the Inn at Bear Mt. Park, which contained a cafeteria on the main level; (3) after eating lunch in the cafeteria, claimant stated that she left the Inn through ‘the' side entrance while pushing her son in his stroller; (4) after exiting ‘the' side entrance, claimant's foot went into an uncovered drain. Claimant indicated that the uncovered drain was roughly four inches deep by seven inches wide and approximately two to three feet from the door. Claimant offered five exhibits into evidence, marked as Exhibits 1 through 5. Exhibits 2 and 3 were photographs of the general area of the Inn at Bear Mt. Park and Exhibits 1, 4 and 5 were offered as photographs of the uncovered drain.

On cross-examination, claimant indicated that (1) she was only aware of one front entrance, one side entrance and possibly a back entrance; (2) she was unaware that there were four side entrances to the Inn, (3) she did not remember which side entrance she used to enter the Inn; (4) neither she nor any of her companions noticed the uncovered drain when they entered the Inn; (5) she did not know how long the uncovered drain had existed prior to the incident; (6) neither she nor any of her companions photographed or measured the uncovered drain on the day of the accident; and (7) the accident was not reported to anyone on the day it occurred. Claimant did not call anyone who accompanied her to the park as a witness at trial.

Claimant's counsel then read the deposition testimony of the State's witness, Peter Gulliver, dated December 4
, 2003. At the deposition, Mr. Gulliver testified that (1) he is employed as the Manager of Bear Mt. Park and held the same position on October 29, 2000; (2) he was not sure whether the uncovered drain depicted in Exhibits 1, 4 and 5 was located at Bear Mt. Park; (3) he supervises a staff of between 35 and 80, depending on the season; (4) the maintenance staff has specific duties on a daily basis such as cutting grass and removing garbage as well as other duties that vary daily depending on the needs of the patrons; (5) he does not believe there was a formal maintenance procedure for inspecting the asphalt area outside of the Inn; (6) in addition to problems discovered by the staff, problems or potential problems can be reported by patrons; (7) such information does not necessarily result in a written report.
Claimant then rested her case and the State moved to dismiss for failure to prove a prima facie case. The Court denied the motion.

The State called Peter Gulliver as a witness. The witness testified that: (1) around the time of the incident, approximately six of his staff were assigned specifically to the Inn, performing maintenance duties in the Inn, as well as maintenance of the grounds immediately adjacent to the Inn; (2) approximately one dozen employees were assigned to maintenance duties outside the Inn, including checking the paths leading to the Inn for debris and emptying the garbage cans on the paths; (3) there is an exit on the east side of the Inn that is considered the main entrance; (4) there are four
side entrances on the south side of the Inn, two of which have drains with hinged covers; and (5) there was no record of any complaints or work orders relating to drains.
On cross-examination, claimant's counsel asked a series of questions comparing answers Mr. Gulliver gave during his deposition testimony to the testimony he gave on direct examination. Mr. Gulliver testified as follows: (1) three of the four side entrances on the south side of the Inn are connected to the cafeteria; (2) there are drains outside two of these side entrances; and (3) one drain is outside the most popular side entrance (identified as the second entrance from the eastern side on the southern face of the Inn). Mr. Gulliver contradicted his testimony from direct, stating that he did not have staff assigned specifically to the Inn, but that there was an unidentified number of staff members assigned to the area around the Inn. He confirmed that there were no specific daily duties assigned to these staff members with respect to the asphalt outside the side entrances to the Inn.

It is well established that "[t]he State - just as any other responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be perceived" (
Flaherty v State of New York, 296 NY 342, 346 [citations omitted]). In terms of the safety of persons on its property, the duty of the State is a duty of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241).
The state is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see
Killeen v State of New York, 66 NY2d 850; Condon v State of New York, 193 AD2d 874). In order to succeed in a negligence claim, a claimant must show that a foreseeably dangerous condition existed, that the State created the condition or had either actual or constructive notice of this condition, that the State failed to remedy the condition within a reasonable time, that such condition was a proximate cause of the claimant's accident, and that claimant sustained damages (see Gordon v American Museum of National History, 67 NY2d 836; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955). To constitute constructive notice, a condition must be visible and apparent and must exist for a sufficient length of time before the accident to permit the defendant to discover and remedy it (see Gordon v American Museum of National History, 67 NY2d 836, supra; Negri v Stop & Shop, 65 NY2d 625).
Claimant has the burden of proving the State liable by a fair preponderance of the credible evidence. The trial court, in its capacity as trier of facts, must evaluate the credibility of witnesses upon direct and cross-examination and the weight to be given to the evidence (see
Johnson v State of New York, 265 AD2d 652; De Luke v State of New York, 169 AD2d 916). The Court finds claimant to be a credible witness. However, claimant's testimony, unaccompanied by corroborative contemporaneous documentary or testimonial evidence, is insufficient to establish several necessary elements.
First, claimant was unable to establish that the uncovered drain identified in Exhibits 1, 4 and 5 existed on October 29, 2000. The Court finds claimant's testimony credible that Exhibits 1, 4 and 5 are pictures of
an exposed drain outside a side door of the Bear Mt. Inn and that the depicted uncovered drain existed roughly two weeks after the accident. However, without an incident report from the date of the incident or testimony from witnesses who accompanied claimant on October 29, 2000 and when she took the pictures two weeks later, the evidence contained in this record is insufficient to establish that the uncovered drain in the pictures existed on October 29, 2000.
Second, assuming,
arguendo, that claimant established that the uncovered drain depicted in Exhibits 1, 4 and 5 existed on October 29, 2000, she was unable to establish that the uncovered drain in the pictures was the same one that caused her fall. While the Court finds credible claimant's testimony that she turned her ankle outside of one of the side entrances to the Inn, there is no evidence beyond claimant's testimony that the uncovered drain shown in Exhibits 1, 4 and 5 was the direct causal defect. Claimant herself admitted that she was uncertain as to which door she used when she exited the cafeteria and outside which door the exposed drain was located. On direct examination, claimant indicated that she exited the cafeteria of Bear Mt. Inn through ‘the' side entrance, but testimony given at trial demonstrates that there are four side entrances, three of which go to the cafeteria. In addition, cross-examination of Mr. Gulliver revealed that two of the four entrances to the cafeteria contain a drain. During direct examination, claimant gave no testimony to identify which of the two side exits with drains she used to leave the cafeteria. Since there is no additional information in the record such as an incident report or witness testimony to connect the drain depicted in the pictures to the exit used by claimant, the weight of the evidence is insufficient to support the causal link necessary for a finding of negligence.
Third, claimant was unable to establish the time period the uncovered drain was exposed prior to the incident. Assuming,
arguendo, that the record contains evidence sufficient to establish that an uncovered drain existed causing injury to claimant, she failed to establish that the condition existed for a sufficient period of time prior to the incident to reasonably allow the State to discover and remedy the condition (see Gordon v American Museum of National History, 67 NY2d 836, supra; Negri v Stop & Shop, 65 NY2d 625, supra). Further, while the inference that inspections of the area outside the side entrances to the Inn may have been insufficient certainly seems plausible (given that uncovered drain existed two weeks after the incident) claimant must demonstrate more than that the State may have failed to adequately inspect the premises. Claimant has the burden of bringing forth evidence proving defendant's actual or constructive notice of a dangerous condition. As to actual notice, claimant was unable to offer evidence, such as previous accident reports, that a missing drain cover had been reported and ignored. As to constructive notice, there must be some proof that the existence of the potential danger reasonably should have been discovered by the State (see Preston v State of New York, 59 NY2d 997). Even assuming that Exhibits 1, 4 and 5 provide proof that a drain was exposed for two weeks after the incident, the record contains no evidence (such as an incident report with photographs of the condition taken on the day of the incident) to support the assertion that the drain was exposed for a sufficient period of time before the incident to give the defendant constructive notice of the condition (see Preston v State of New York, 59 NY2d 997, supra).
Therefore, while the Court finds claimant to be a credible witness, based on the record, I am unable to make the affirmative findings as to causation and constructive notice, which are necessary to establish a claim for negligence.

In accordance with the foregoing, the claim is hereby dismissed. The Clerk of the Court is directed to enter judgment accordingly.

July 22, 2005
White Plains, New York

Judge of the Court of Claims