New York State Court of Claims

New York State Court of Claims

SPINK v. THE STATE OF NEW YORK, #2005-030-001, Claim No. 106370


Synopsis



Case Information

UID:
2005-030-001
Claimant(s):
PETER SPINK
Claimant short name:
SPINK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106370
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
HOGAN & ROSSIBY: DAVID SIMON, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JUDITH C. McCARTHY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
January 11, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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"[1]
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 7].
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 activity.

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 Westchester Division.

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. [
See 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 Miller, 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). With 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 omitted)." Gordon v American Museum of Natural History, supra 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, supra], 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);[2] Masone v State of New York, 149 Misc 2d 255 (Ct Cl 1990);[3] See also Martinez v City of New York, 307 AD2d 989, 991 (2d Dept 2003);[4] cf. Berfas v Town of Oyster Bay, 286 AD2d 466 (2d Dept 2001).[5]
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 participation."
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 School District, 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 York, Claim No. 95789, UID 2000-013-511(September 12, 2000, Patti, J.) (Ct Cl 2000).
" ‘[A]ssumption of risk is not an absolute defense but a measure of the defendant's duty of care . . .' " Morgan v State of New York, supra, 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);[6] see also Goldberg v Town of Hempstead, 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 [
sic] 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 foreseeable."

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, supra, 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. [
See 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
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] All quotations are to the trial transcript ["T"] unless otherwise indicated. [T-24].
[2] 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 obvious condition.
[3] 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 v State, supra at 260.
[4] 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.
[5] 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.
[6] 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.).