SPINK v. THE STATE OF NEW YORK, #2005-030-001, Claim No. 106370
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
HOGAN & ROSSIBY: DAVID SIMON, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JUDITH C. McCARTHY, ASSISTANT ATTORNEY GENERAL
January 11, 2005
See also (multicaptioned
Peter Spink, the Claimant herein, alleges in Claim number 106370 that he
suffered personal injury due to Defendant's negligence in allowing a known
dangerous condition to exist at the intersection of New York State Route 117 and
the Saw Mill River Parkway in the Town of Bedford Hills, State of New York.
Specifically, Claimant alleges that on the night of July 18, 2000 at
approximately 10:00 p.m. he was riding his bicycle in a northerly direction
along the sidewalk running parallel to Route 117, entered the intersection with
Exit 39N of the Saw Mill River Parkway, missed the eight-foot-wide bike path
opening in the concrete island separating the entrance/exit ramp from Route 117,
and struck the island. He alleges that the State negligently failed to properly
design, light, and/or maintain the path at this location.
FINDINGS OF FACT
The southbound exit to Route 117 of the Saw Mill River Parkway is a single-lane
ramp that goes out to a "T" intersection at Route 117. To enter the Saw Mill
River Parkway southbound from Route 117 there is an adjacent, single-lane ramp.
This entrance/exit ramp is separated within 50 to 100 feet of the intersection
by a concrete curb divider, containing grass in the portion closer to the
Parkway, and becoming all concrete up to its intersection with Route 117. The
concrete portion is further divided by an eight-foot-wide bike path, creating
two separate concrete islands.
Claimant testified that at the time of the accident he was 39 years old, and
had been riding bicycles since the age of 5. Claimant rode a secondhand
mountain bike that he regularly serviced, and that contained a light in the
front illuminating the ground area approximately 10 to 12 feet in front of him
for a width - or beam range - of 3 to 4 feet. The light, steering and brakes
were all in good working order. As he left his home that night, he intended to
join up with the bike path along Route 117, and noted that it was a clear, dry
and dark night. He was not wearing a helmet. As he rode he was clearing his mind
and composing music. He testified that he had never come in a northerly
direction on the bike path prior to that night, although he had cycled to the
point in a southerly direction and turned around in the past.
Claimant identified several photographs as fairly and accurately depicting the
location of his accident, except for variations in the time of year, and
consequent change in vegetation, and the presence of a reflector on a short pole
jutting out of the concrete island he struck. [Exhibits 1-8]. He said that the
pole was there but there was no reflector.
Just beyond the intersection where he had his accident, at the northeastern
side of the intersection with the bike path and the ramp to the Saw Mill River
Parkway, there is a street light on a utility pole. [Exhibit 2 and 4]. Bedford
Hills Town Hall - an illuminated building - is on the opposite side of the
street, to the west of the intersection, as is a gasoline station generally
southwest from the intersection. Facing north on the bike path, from his
southeast position at the intersection, the portion of the traffic island he
struck he described as a "half-circle"
sitting in the middle of the road, perhaps four feet across and rising up about
eight inches. Notably, and as can be seen in photographs of the scene, the path
itself as it crosses the entrance/exit ramp is a whitish color distinct from the
darker paving surrounding it. [Exhibits 1, 2, 3, 4, 5, 6, 7, 8]. Both portions
of the concrete island - at either side of the eight-foot-wide opening for the
bike path - appear to be almost the same whitish color as the path, albeit
slightly darker, and defined somewhat by short weed-like vegetation. [See
Exhibits 1, 2, 3, 4, 5]. As noted above, Claimant testified that a reflector
panel on a short pole imbedded in the concrete island he hit, shown in the
photographs, was not present on the night of his accident, although there was a
short pole without a reflector panel at that time. [See
Exhibits 3 and
That night, he crossed Route 117 through a break in the median from Cherry
Street, just above the accident site and where the downhill slope begins. He
estimated that he was traveling at approximately 20 to 25 miles per hour as he
rode down the hill, gathering a bit of speed, but hitting his brakes "because
it's a pretty sharp curve that comes around at 117 there coming toward the rest
of the road . . . " [T-26]. As he came down the hill, he was aware that the
entrance ramp to the Saw Mill River Parkway was coming up. Nonetheless, due to
overgrown shrubbery and poor lighting, among other things, he asserted that as
he rounded the curve he came "almost blindly into this intersection." He
agreed that there was a bike-route sign within 25 yards of the intersection
[Exhibits A and B], as well as a sign closer to the entrance/exit ramp that the
Saw Mill River Parkway was coming up [Exhibits A, B, C, D]. The curb where the
sidewalk ends and the lighter path across the intersection begins is a low one,
perhaps two inches in height above the path. [Exhibit H].
On cross-examination, Claimant conceded that during the two years he had
resided in Katonah prior to the accident, he had used the bike path many times
and had driven by the specific intersection in his car at least a hundred times
before. He also admitted he had seen the concrete divider between the entrance
and exit ramp of the Saw Mill River Parkway before.
On cross-examination he conceded that he was traveling faster than he
originally stated - between 25 and 30 miles per hour on his bike - and did not
brake until he went down the curb onto the light asphalt area. On re-direct,
however, he stated that the reason he did not slow down as he rode down the curb
and entered the intersection was that he saw no differentiation between the
light colored pathway and the road, and it appeared to be nothing but a "clear,
flat space . . . [until] the opening of the bike path on the other side of the
intersection." [T-76]. After he entered the intersection, his front tire made
contact with the left-hand portion of the concrete island, and "the bike stopped
dead." [T-34]. He was thrown off and landed on his head suffering injury.
Deposition testimony of Thomas Mason, a New York State Department of
Transportation (hereafter DOT) employee, was read into the record on Claimant's
direct case, establishing that the DOT was responsible for the maintenance - in
terms of snow removal and pothole repair - of the lighter colored pavement
across the intersection of Route 117 and the entrance/exit ramp to the Saw Mill
River Parkway, because "it's part of the Saw Mill Parkway exit ramp . . . "
[T-92]. The "white reflector delineator" - or the post on the concrete divider
- he thought was likely "installed by New York State . . . "[T-93], but with
regard to the cut in the concrete island to create two islands separated by the
width of the bike path, however, he could not say who had constructed it. He
said it was probably whoever put in the bike trail. [T-94]. Three black and
white photographs referred to by Mr. Mason during his deposition testimony were
admitted collectively as Exhibit 13.
The State stipulated that it was the owner of the entrance/exit ramp of the Saw
Mill River Parkway.
Other than an accident report noting Claimant's accident [Exhibit 9] and the
photographs referred to above, no other exhibits were admitted and no other
witnesses testified on Claimant's direct case.
Defendant moved for a directed verdict, premised on Claimant's failure to
establish, by a preponderance of the credible evidence that the State had notice
of the allegedly dangerous condition, and further premised on Claimant having
assumed the risks associated with engaging in a sport or recreational
After the Court reserved decision on Defendant's motion, Defendant called
Claimant's deposition witness, Thomas Mason, to testify on its case. Mr. Mason,
a civil engineer, is a 35- year employee of the DOT. He indicated that his job
responsibilities as Assistant Resident Engineer of the Southern Westchester
Maintenance Division of the DOT include administering the operation and
maintenance of the New York State roadways in the southern half of Westchester
County, including snow and ice removal, pavement repair, guide rail repair,
mowing and litter pickup. The Saw Mill River Parkway, including the entrance
and exit ramps, are under his purview.
Mr. Mason was familiar with the location of the accident. He indicated that
while the DOT was responsible for maintaining the portion of the bike path that
runs through the entrance/exit ramp, the Town of Bedford Hills is responsible
for the sidewalk and the bike path south of the ramp, and the bike path north of
the ramp. The responsibilities would include clearing any overgrowth or other
matter obstructing the sidewalk. He noted that when he visited the site he
observed lights on poles on either side of the entrance/exit ramp, but had never
been there at night. Light bulbs would be replaced by the Town of Bedford
Hills. He said there is no parkway lighting and that the parkway is not
required to be lit. The witness confirmed that he had been generally
responsible for the area where the accident occurred in connection with his work
for the DOT since March, 1977. There were no prior bicycle accidents at this
location to his knowledge.
On cross-examination, he conceded that the DOT was the owner of the property
beyond the guardrail adjacent to the sidewalk on the southern side of the
intersection, indicating that it was a sloped area going down to a stream or a
creek. Some maintenance - removal of a dead tree or other matter to keep the
drainage open, for example - would be undertaken by the DOT. Route 117 is also
maintained by New York State, but not by his department. He also agreed that
the sidewalk was constructed on State property.
On re-direct examination, Mr. Mason explained that the area from the guardrail
closer to the Saw Mill River Parkway would be his department's maintenance
responsibility; the area between the guardrail and the curb - the sidewalk area
essentially - would be the responsibility of the Town of Bedford Hills; and the
area from the curb onto Route 117 would be the responsibility of the Northern
An eyewitness to the accident, John Dinin, also testified for the Defendant. At
the time of the accident, he was standing in the driveway of the Town Hall of
the Town of Bedford Hills approximately 25 yards from the intersection. He had
just left a town board meeting - he was the Town Supervisor at the time - and
was facing Route 117 as he spoke to his Deputy by her car. Mr. Dinin saw an
individual coming down the hill on a bicycle, around the sweep turn, and
observed him riding his bicycle onto the island that separates the entrance and
exit ramps to the Saw Mill River Parkway. He did not see the bicyclist slow down
before entering the ramp and hitting the curb of the island, but conceded he had
no way of knowing whether the rider had applied his brakes. He could not recall
if the rider had a bicycle light on.
The witness identified Exhibit 6 as showing the vantage point from which he
observed Claimant bicycling. He calculated Claimant's speed as approximately "10
miles per hour" "for a bicycle." [T-134]. In his capacity as town supervisor
for eight years, no complaints about the bicycle path had been registered that
he knew of. Additionally, he indicated that the area was well lit that night,
with lighting on telephone poles on either side of the intersection, and
lighting on the Town Hall side of Route 117 as well. He further testified that
the light was sufficient to see the curb separating the entrance and exit ramps
of the Saw Mill River Parkway, as well as the demarcation between the bike path
and highway created by the different colored road surfaces.
On cross-examination, Mr. Dinin conceded that he could not say whether Claimant
was on the sidewalk or not when he was riding on Route 117 toward the
entrance/exit ramp. He acknowledged that he had ridden the bicycle path in both
directions many times over the 25 years he had lived in the area.
Finally, Steve Bernheim, a board certified forensic examiner in the area of
sports, recreation and leisure, testified as Defendant's expert with regard to
the design and safety of the bicycle path, among other things. [
Exhibit K]. From his observation of the accident site, he noted that
the distinct pavement colors serve as a safety feature, and that the trajectory
from the sidewalk into the intersection - created by the curb cut from the
sidewalk into the intersection - would not compel a rider in the direction of
the left most concrete island, if Claimant rode his bicycle from the sidewalk
into the intersection as he described it. [See
Exhibit 5]. Indeed,
recalling his personal observations, and reviewing the photographs presented
[Exhibits 1 and 5], he opined that the sidewalk curb cut would lead the cyclist
directly onto the bicycle path across the entrance/exit ramp, as well as on a
trajectory to pass through the eight-foot-wide opening between the two sides of
the concrete island. If anything, he opined, a bicyclist traveling down the
sidewalk at an excess speed without all his faculties might veer toward the
parkway, not toward Route 117 and the concrete divider as theorized by Claimant.
DISCUSSION AND CONCLUSION
As an initial matter, the Court agrees that Claimant has failed to establish
his direct case by a preponderance of the credible evidence. Although the State
has a duty to maintain its highways and their adjacent areas in a reasonably
safe condition [
See Friedman v State of New York
, 67 NY2d 271 (1986)] and has a
duty as a landowner to protect the recreational user of its lands from
foreseeable risks of harm, it is not the insurer of public safety. Its duty is
to exercise "reasonable care under the circumstances . . ." [Basso v
, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of
harm. Assuming that the State did not create the dangerous condition, a
Claimant must show that the State had actual or constructive notice of the
condition and failed to act reasonably to remedy it. Gordon v American
Museum of Natural History
, 67 NY2d 836, 837 (1986). Creation of a dangerous
condition constitutes actual notice. Lewis v Metropolitan Transp. Auth
99 AD2d 246, 249 (1st Dept 1984), affd
64 NY2d 670 (1984).
respect to constructive notice, any ". . . defect must be visible or apparent
and it must exist for a sufficient length of time prior to the accident to
permit . . . [a defendant] to discover and remedy it . . .(citation
)." Gordon v American Museum of Natural History
at 837; See also Cotter v State of New York
, Claim No. 99844,
UID#2001-001-511(Read, PJ, April 12, 2001).
Based upon the inconclusive evidence presented here, if there were dangerous
conditions created by the State under the several theories of the case advanced
by Claimant, there has been no showing that the State was aware of any of these
conditions and failed to cure them. There has been no showing that either the
trajectory of the path - which appears to have been constructed by the Town -
the vegetation supposedly obscuring the signs, or the location of the concrete
curb divider was either created by the State or ignored after notice of any
danger. As noted above, to constitute constructive notice, a defect must be
visible and apparent and must exist for a sufficient length of time prior to the
accident to enable the State to discover and remedy it.
It is only those foreseeable dangerous conditions which are not remedied within
a reasonable time which may establish liability on the State's part, [Gordon
v American Museum of Natural History
], assuming that proximate
cause and actual damages are proven as well. No evidence of prior complaints or
problems with the path was presented, nor could any danger have been reasonably
anticipated given that there was an eight-foot-wide opening through the concrete
island allowing safe passage for bicycles.
There is no duty to warn against conditions that are readily observed by those
employing the reasonable use of their senses.
Stasiak v Sears, Roebuck and Co.
, 281 AD2d 533 (2d Dept
2001); Masone v State of New York
Misc 2d 255 (Ct Cl 1990); See also
Martinez v City of New York, 307 AD2d 989, 991 (2d Dept
2003); cf. Berfas v Town of Oyster
, 286 AD2d 466 (2d Dept 2001).
Additionally, ". . . by engaging in a sport or recreational activity, a
participant consents to those commonly appreciated risks which are inherent in
and arise out of the nature of the sport generally and flow from such
Morgan v State of New York
, 90 NY2d 471, 484 (1997), including
risks due to "open and obvious defects in the construction of the playing field,
as long as the participant is aware of the risks and appreciates the nature of
the risks . . . (citations omitted
)." Greenburg v Peekskill City
, 255 AD2d 487, 488 (2d Dept 1998); see also Green
v City of New York
, 263 AD2d 385 (1st Dept 1999); Cross v State of New
, Claim No. 95789, UID 2000-013-511(September 12, 2000, Patti, J.) (Ct
" ‘[A]ssumption of risk is not an absolute defense but a
measure of the defendant's duty of care .
. .' " Morgan v State of
, quoting Turcotte v Fell
, 68 NY2d 432.
Recently, the Third Department affirmed the Court of Claims finding that a
bicyclist, injured when her tire struck a visible depression in a campground
roadway, assumed the risk of a known, apparent or reasonably foreseeable
consequence of participation in bicycle riding.
Dobert v State of New York
, ___AD2d___, 779 NYS2d 143 (3d Dept
2004); see also Goldberg v Town of
, 289 AD2d 198 (2d Dept 2001); Lupica v State of New York
Claim No. 98714, UID #2000-019-530, Motion Nos. M-61979, CM-62228 (Lebous, J.,
August 28, 2000).
In Auricchio v State of New York
, Claim Number 97133, Motion No. M-61165
(unreported decision October 16, 2000, Silverman, J.), the Court of Claims
dismissed a case where the claimant was injured while rollerblading on an oval
running track at a
school. The Court stated:
"Rollerblading is a form of exercise which foresees that an individual may
fall due to their own loss of balance, a defect in the skating surface or an
outside influence causing them to lose their balance. Claimant was aware of the
lay out [
] of the track, having been there twice before and rollerbladed one
week prior to her accident . . . Claimant makes no allegation that the hole was
concealed in any manner, in fact, she alleges that it is an open hole in the
track surface. The Court notes that claimant makes no offer as to the depth of
the hole in the surface. The condition was an open and obvious condition and
was part of the skating surface. Therefore, claimant assumed the risk of
skating on the track and it is deemed that she consented to the injury causing
event because it was apparent or readily
Based upon the evidence presented here, the conditions described on the pathway
were open and obvious ones, readily observable by the reasonable use of one's
senses. Some of the inherent risks of the sport of bicycling are falling due to
imperfect surfaces, loss of balance, hitting curbs or other outside influence
distracting the cyclist. An inherent risk of bicycling at night is that such
imperfect surfaces or temporary or permanent obstructions on a pathway - such as
curbs and concrete dividers - will not be observed, especially if one is
bicycling rapidly around a curve.
Moreover, just as the injured bobsledder's familiarity with the bobsled course
at the Mt. Van Hoevenberg Bobsled Run could not be ignored in
Morgan v State of New York
, the Claimant's familiarity with
the bicycle path, the imminence of the intersection of the highway and the path
not just at this location, but at other locations he had traversed by bicycle
and by car, and the presence of concrete dividers at this and other
entrance/exit ramps, cannot be ignored. In light of this familiarity, any
obscuring of warning signs is irrelevant. Indeed, in viewing the photographs of
the warning signs it is clear that a reasonable person would know that an
intersection with a highway was coming up, and that it might behoove the cyclist
to slow down and become aware of his surroundings. In terms of any alleged
design defect, no expert was presented by Claimant to discuss the supposedly
problematic trajectory created by the transition from the sidewalk to the bike
path area, nor did any expert opine that an eight-foot-wide opening in the
concrete island somehow created a design flaw, or that lighting was inadequate,
or even contemplated, in the designing of a bicycle path.
Also taking into consideration the witnesses presented on Defendant's case, the
failure to establish the basis for any liability on the part of the State of New
York is further clarified. [
photographs, Exhibits A-J]. The State's expert - the only one
testifying - stated that the path was designed with adequate safety features
including different colored pavement, an eight-foot-wide opening in the concrete
island, and sufficient light. He opined that it was properly and safely
designed and built, allowing for a smooth transition from the sidewalk to the
bicycle path. Fact witnesses testified as to the presence of warning signs and
lighting, and as to the excessive rate of speed Claimant traveled given the
nighttime route he chose.
If there was a dangerous condition created by the path design, concrete islands
or other alleged defect, there has been no showing that the State was aware of
the condition and failed to cure it. Additionally, if there was a dangerous
condition about which the State was aware and failed to correct, there has been
no showing that the condition was the proximate cause of the Claimant's
accident, given his familiarity with the area and his failure to observe open
and obvious conditions.
Accordingly, Claimant has failed to establish by clear and convincing evidence
any liability on the part of the State of New York and, therefore, Claim Number
106370 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.
January 11, 2005
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
All quotations are to the trial transcript
["T"] unless otherwise indicated. [T-24].
Summary judgment dismissing the complaint
granted. Plaintiff slipped and fell on a paint spill in store. Defendant was
aware of spill, had placed cones to warn of the danger, and had established,
court concluded, as a matter of law, that there was no time within which to
remedy the condition, and that there was no duty to warn about the open and
Claimant was injured when he fell on a sand
pile while riding his dirt bike on a dirt trail in a public park. Court said the
dirt pile was an obvious hazard that the State had no duty to warn about even if
it could be anticipated that dirt bike riders might attempt to jump the pile.
The ". . . subject pile of sand did not constitute a dangerous condition to
reasonably foreseeable and reasonably careful users of the park . . ." Masone
Summary judgment dismissing complaint against
city granted. City had no duty to warn bicyclist about tree well in public
sidewalk as it was an open and obvious condition.
Summary judgment denied where it could not be
said that defects on paved town road were open and obvious where bicyclist
injured when he hit a rut in the unfamiliar road.
For the more factually detailed trial court
decision, see Dobert v State of New York
, Claim No. 105068, Motion
Nos . M-66774, CM-66862, UID# 2003-032-105 (October 6, 2003 Hard, J.).