PHELAN v. THE STATE OF NEW YORK, #2005-032-503, Claim No. 105128
KEVIN J. PHELAN, as Administrator of the Goods, Chattels and Credits of NANCY PHELAN, Deceased, WILLIAM R. PHELAN, an Infant by his Parent and Natural Guardian KEVIN J. PHELAN, and KEVIN J. PHELAN, Individually,
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JUDITH A. HARD
Gordon, Siegel, Mastro, Mullaney, Gordon & Galvin, P.C.By: Christina Galvin, Esq.
The Hon. Eliot Spitzer, NYS Attorney GeneralBy: Frederick H. McGown, III, Assistant Attorney General, Of Counsel
June 29, 2005
See also (multicaptioned
Claimant Kevin J. Phelan brings this negligence claim for the wrongful death of
his former spouse, Nancy Phelan [hereinafter
The claim alleges that while decedent, who was not wearing a helmet, rode her
bicycle over a depression in a road in Thompson Lake State Park, lost her
balance and fell, striking her head on the road. She was dead within five
minutes. It is alleged that the death occurred as a result of defendant's
negligence in the design, construction, maintenance, and repair of the road
where the accident happened. As a result of this wrongful death, the claim seeks
damages for the loss of parental guidance, financial support and household
services for decedent's two children, William and Allison, and reimbursement for
her medical and funeral expenses. The claim also seeks compensatory damages for
decedent's conscious pain and suffering, including pre-impact terror, and the
negligent infliction of emotional distress upon William, who observed his
mother's accident at the age of 11.
Defendant alleges the following defenses: the culpable conduct of decedent and
William Phelan; third party negligence; assumption of risk; and defendant did
not owe a duty of care to claimant pursuant to the doctrine of recreational use
codified at General Obligations Law § 9-103.
After a five-day trial, the Court determines that claimant carried his burden
and established that defendant was negligent in the maintenance and repair of
the road where the accident occurred, and that defendant did not prove any of
its alleged defenses. For the reasons set forth below, the Court makes the
following award: a total of $2,437,112 for the children's loss of services,
support, and guidance; $7,122.17 for funeral and medical expenses; and $25,000
for the negligent infliction of emotional distress.
At trial, claimant presented two eyewitnesses to this tragic
accident, William Phelan and Joanne Sheldon. William recounted that his family
was on a week-long camping trip at Thompson Lake State Park when his mother died
on August 2, 2001. That sunny day, decedent, William, Allison and their dog,
Kelly, were enjoying a day at the beach. During the mid-afternoon, William and
his mother rode their bikes to escort Allison to the Nature Center within the
park. They had intended to ride their bicycles back to the beach. Although they
had worn their helmets on other occasions during this camping trip, neither was
wearing a helmet at this time.
It was during the course of the return trip that the accident occurred. They
were heading down a hill on Loop A near campsite 23 on a paved road (Exhibits 5
& 36). William was three to four bike lengths directly behind his mother,
who had never ridden on this road prior to the accident. Decedent was riding on
the right side of the road approximately one to two feet from the edge of the
road. William testified that his mother rode her bicycle over the center of a
"pot hole" in the road (Exhibits 1 & 6), and then he saw her handlebars
suddenly turn to the right. Her hands remained on the handlebars. After the
turn, the bicycle kept moving to the right. It remained on the roadway for a
while but eventually one tire went off the road, and his mother fell. He could
not estimate how far beyond the depression her bicycle traveled before she fell.
After the fall, William stopped his bike two bike lengths in front of her, and
he saw her lying on the ground. He became nervous and he rode his bicycle to the
main park entrance to inform an employee of the accident. He then rode to the
Nature Center to pick up his sister. They returned to the accident scene where
the ambulance already had arrived. After the ambulance departed, they waited at
a campsite for their father to pick them up. When they arrived at the hospital,
they were informed that their mother was dead. They viewed their mother before
In addition to William's testimony, claimant also offered the testimony of
another eyewitness to the accident, Joanne Sheldon. She testified that
midafternoon on the day of the accident, she was seated atop a picnic table at
campsite 23 and facing Loop A. Sheldon observed decedent riding her bicycle
along the roadway for approximately 20 to 30 feet before she eventually fell.
She observed that decedent was wearing a bathing suit, shorts and sandals.
Sheldon approximated that decedent was riding at a speed of 5 to 10 mph down an
incline with a curvature in the roadway, and that she rode over a depression in
the road (Exhibits 1, 2 & 6). Her handlebars jerked and turned. She lost her
balance. Decedent tried to regain control of the bicycle as she continued to
She fell over to her left side and struck the left side of her skull on the
road. Her left leg was underneath the bicycle and her right leg was on top of
the bicycle. Earlier that day, Sheldon had observed children on scooters fall at
the same location.
Sheldon could not remember
where decedent fell, but she did remember the location of the "groove" on the
pavement that caused decedent's fall (T:42).
Sheldon immediately went over to decedent, who was bleeding profusely and
gurgling on her own blood. Decedent tried to lift her head and her back leg was
moving slightly. Sheldon told her not to move because help was on the way.
Within five minutes, decedent developed a gaze and then a blank stare on her
face. At that point, she stopped moving. Sheldon checked for a pulse, but could
not locate one. Lifeguards from the park beach arrived six to seven minutes
later. Eventually, an ambulance removed decedent from the park and brought her
to a hospital where she was pronounced dead upon arrival (Exhibit 31).
Decedent's former husband, claimant Kevin Phelan [hereinafter Phelan],
testified that he was informed of the accident by the Park Police. He picked up
his children at the campground and was escorted to the hospital by the Park
Police. When they arrived, they were informed that decedent had died. At
approximately 7:00 p.m. that evening, Phelan returned to the park to break down
the campsite. At the accident site, he observed that a 12-inch corrugated pipe
passed under the roadway [Exhibits 2 & 54]. In Phelan's opinion, the stone
material that packed the pipe had
He observed that the roadway had sunk several inches in places on the road. The
next morning he returned to the site and found that crushed stone had been
placed in the depression (Exhibits 18-20 & 22-23).
After the accident, Phelan had several
discussions with State Police Senior Investigator James Dolan, who opined that
the hole in the road was the cause of the accident. Dolan inspected decedent's
bicycle and found nothing wrong with it. Neither the State Police Report nor the
Park Police Report, however, make a determination as to the cause of the
accident [Exhibits 34 & 35].
The manager of Thatcher State Park, Christopher Fallon, also testified at
trial. His responsibilities included the oversight of Thompson Lake State Park,
and he testified that there was no rule at the park that bicyclists over the age
of 14 wear a helmet. Fallon testified at his deposition that he had not observed
the depression at any time before the accident, but he was aware of the culvert
since he would tour the campground daily. He later testified in the same
deposition, however, that although he was aware of the depression before the
accident, he did not request that repairs or modifications be made. Although
maintenance was conducted on an observed, as needed basis, there was no
scheduled maintenance for this
Fallon also admitted that he had observed the culvert several times before the
accident, possibly even the morning of the accident. Upon cross-examination,
Fallon testified that he searched park records and found no documents regarding
prior accidents at this location. Further, he had not received any complaints
about this location while he was park manager.
Fallon was informed of decedent's accident over the park radio system. He drove
to Thompson Lake State Park and found her on Loop A, five feet from the edge of
the road near one of the campsites between the shower building and the beach
(Exhibits D-H). Upon voir dire, however, he admitted that he was not completely
sure where decedent's body was located immediately after the
By the time he arrived, the lifeguards were attending to her. She appeared to be
unconscious and there was a large pool of blood around her head. After the
ambulance departed, the area was hosed down and
During the trial, the parties each offered expert testimony to support their
respective theories of the cause of decedent's accident. Claimants theorized
that a large depression in the road caused by negligent maintenance and/or
repair caused decedent to lose her balance and ultimately fall. Defendant
countered that based on the location where decedent fell, the depression did not
cause her fall.
a civil engineer and bicycle accident reconstructionist, testified on behalf of
claimant and inspected the accident scene the morning after it occurred. Gonseth
described the road as a 24-foot-wide asphalt pavement without any markings. It
slopes downward at a grade of approximately 8.1 percent (Exhibit 1). He observed
the road located across from campsite 23 as having three depressions with the
largest located along the right edge of the pavement (Exhibit 6). He found that
a model admitted during trial, depicting the road where the accident occurred,
to be an accurate depiction of this depression (Exhibit 55). The remaining two
depressions were located in the middle and left side of the road (Exhibit 17).
He also observed that there had been major repair work to the depression on the
right side where a triangular piece of road had been cut out and patched. It was
located at the edge of the pavement where a culvert ran underneath it (Exhibit
2). He opined that the packing around the culvert was not done properly, so that
when it settled, it left a void underneath the road. Weight on the road
eventually caused the road to fall into that void. Gonseth believed that the
triangular piece was cut to fix that area but it was not packed properly,
causing the roadway to sink (Exhibit 6). Gonseth measured the depth of the
depression as 3.5 to 4 inches in the center, on top of the fill that had been
placed in it after the accident (Exhibits 18-20). He opined that it would be
difficult to see the patched area on any approach from the north or south. He
further opined that a cyclist going down the grade of this hill at a reasonable
rate of speed, who encountered a depression like this one, could easily lose his
or her balance and fall.
James Green, a licensed civil engineer, testified on behalf of
His testimony was often vague and, when it was coherent, it was unpersuasive due
to his broad brush opinions without explaining the premise for such assertions.
His demeanor was irreverent, sometimes discourteous to opposing counsel, and the
Court finds that he was generally not credible. In his opinion, if decedent fell
as depicted by the eyewitnesses, then she should have fallen closer to the
depression. In reaching this opinion, Green relied on a State Police Accident
Report that contains a diagram that indicates a distance of 41.2 feet from the
depression to a location purporting to be where decedent landed (Exhibit 34).
Green concluded, therefore, that the eyewitness accounts of the accident were
not accurate (T:719). The Court does not credit Green's opinion inasmuch as no
witness with personal knowledge was produced to testify as to the reliability of
the diagram, or the measurements contained therein. Specifically, no witness was
produced indicating when the measurements were taken or whether the person who
took the measurements observed decedent's location.
He alluded to a theory of kinetics to explain his proposition but never
sufficiently explained the theory at
He testified that the seat of decedent's bicycle, with the nose of the seat
extremely high, was not set up properly and made the bicycle unstable. Upon
cross-examination, however, Green admitted that he did not have specific
knowledge of the Federal Code of Regulations of the Consumer Product Safety
Commission (16 CFR 1512.2 [f]), which provides that the seat and handlebars of a
bicycle may be adjusted to positions judged by the rider to be comfortable. He
believed that decedent should have worn a helmet as it would have dissipated the
force of the fall,
yet he admitted on
cross-examination that the capability of a helmet to prevent injury was still
being studied by the engineering community, and that a cyclist could sustain
traumatic brain injuries even if he or she were wearing a helmet.
Green also opined that Gonseth's measurements of the depression were deceiving
since his measurements were taken on the part of the depression that extended
off the road (Exhibit Q). The Court does not agree inasmuch as it credits
William's testimony that his mother's bicycle tire hit the center of the
depression on the road (Exhibit A), and Gonseth measured this depression as
almost 4 inches deep (Exhibit 22).
Green opined that even if the accident occurred as theorized by claimant, the
depression could be easily seen from 100 feet away. He stated that he visited
the accident scene the afternoon before testifying, and noted that there was an
oak tree and a post by the culvert under the accident
He described the post as two feet away from the culvert (Exhibit 5). The Court
does not credit this testimony as during cross-examination, upon learning that
Phelan had been to the accident scene 36 hours later and did not see a post,
Green said he had misspoken on direct examination when he testified that the
post was there. He really relied on a State Trooper's knowledge of the location
when he was measuring the distance, and that he saw the part of the road as
depicted in Exhibit 6, except that it was covered by "three feet of snow"
Green also suggested that decedent was riding the bicycle using the toe clips,
and this prevented decedent from avoiding the fall because she was unable to
drop one of her feet to the ground to steady herself after she lost her balance.
Green opined that decedent must have been riding the bike using the toe clips,
since it would have been impossible to ride the bike with her feet resting on
the clips. The Court is unpersuaded inasmuch as Green demonstrated his theory by
riding her bicycle with flat tires on a carpet in the courtroom (Exhibit M).
Further, there was no testimony that decedent was using the toe clips on the
bike that fateful day. Indeed, Green later testified on cross-examination that
he did not know if decedent was wearing toe clips.
To support its theory of the accident and establish where decedent fell,
defendant called four witnesses who responded to the accident, one of whom was
Bohdan Pakosz, a State Park Police Sergeant. Using a photograph of the accident
location, he identified where decedent's body was located when he arrived, and
marked the location of her body (Exhibit D). During cross-examination, however,
he admitted that he did not see where decedent's body first impacted the
pavement, and he did not take any measurements of the accident scene. Indeed,
Pakosz's report states: "[i]nspection of the scene did not reveal an exact
accident location or point of impact" (Exhibit 35, p 6).
Stephanie Conklin, a lifeguard working at the beach that day, also testified.
She stated that when she arrived at the accident scene, decedent was not moving
and there was blood coming from her mouth and nose. Conklin also marked
photographs depicting the accident scene for the general location of where
decedent's body was located (Exhibits G, I),
and she also did not take any measurements that day. Ryan Johnson, the chief
lifeguard that summer, testified that when he arrived the other lifeguards were
placing decedent on a backboard. Since there was a lot of blood on the ground,
he cleaned the area with bleach. He marked one of the same photographs used by
Conklin to depict where he believed, although he was not certain, decedent's
body was located (Exhibit I).
He took no
measurements that day and he did not know if decedent had been moved prior to
Lastly, Rachel Saddlemire was another lifeguard who responded to the scene of
the accident. When she first arrived, decedent was lying diagonally on the
ground on her left side with her torso and head on the pavement. Her legs, still
in the position as if she was riding the bicycle, were on the gravel area of the
road. Her head was turned to the left. A stream of blood ran from her head onto
the pavement and into the gravel area (Exhibit E). The lifeguards performed
resuscitation and moved her to a backboard. She was uncertain as to how much
time elapsed between the time the accident happened and the time she arrived at
In support of damages, claimant offered testimony regarding decedent,
particularly her relationship with her children, income and plans for the
future. William recalled his mother as picking him up at school when needed,
having a snack ready for him when he got home, and doing his laundry. She helped
him with his homework, taught him good manners and how to bake. He helped
decedent garden, attended church with her on Sundays, and they went on
vacations. After his mother's death, William and his sister attended a limited
grief counseling program. William is also in an individualized educational
program at school which provides additional assistance to students.
Phelan testified his former spouse was a very warm individual who made friends
easily. Earlier in life she attended two colleges but did not receive a degree.
Prior to her death, she was very near completion of an associate degree in
Restaurant and Hotel Management from Schenectady Community College. She loved to
bake and hoped to open a bakery in her hometown. She even maintained a business
plan notebook, containing many notes, business cards and draft letters for
She maintained her bicycle and the children's bicycles once a year. Decedent
was very active with the PTA, was available for school field trips or to help
during a classroom party. She was active with her daughter's Brownie Girl Scout
troop and encouraged her to cheerlead for Pop Warner football. She celebrated
holidays, including birthdays, with decorations and parties. Her home was always
clean and smelled of good cooking, with music playing.
Regarding decedent's work history, she worked in restaurants, a bakery and a
After she and Phelan married, she took care of children and the elderly in their
homes. She also worked in a school cafeteria. After they had a family, Phelan
stated decedent did not work. Just prior to their separation, she returned to
work in a school cafeteria and at a nursery. Decedent was employed by Price
Chopper Supermarket in 2000, Seattle Sub and Pita in 2000, and Tutor Time
Learning Systems (year unknown) (Exhibits 13 &14). In the final year of her
life, she also worked for an elderly couple.
Several witnesses who were personal friends of decedent also testified.
Charlene Hesse knew her because their daughters were in the same kindergarten
class and were Daisy Girl Scouts. Decedent and Hesse were co-leaders of their
Brownie Girl Scout troop. Decedent did all the camping and overnight trips with
the troop. She was the troop leader every other week until the time of her
death. Hesse even wrote a character reference letter on decedent's behalf when
she was applying for a loan to open a
Jan McCracken, a friend of decedent since the sixth
grade, testified that she was attending Schenectady Community College in the
culinary arts program at the time of her death. Decedent worked in many jobs,
including restaurants, bakeries, gardening and landscaping, and domestic work
throughout her life. She shared with McCracken the business plan notebook for a
bakery (Exhibit 15). McCracken also wrote a character reference letter for
decedent to further her goal of getting a business loan.
Katherine McCarthy met decedent when their sons became friends in the third
grade. She described her as an attentive mother who walked her children to
school and frequently met them after school. She was also very involved in
school activities such as fund-raising for school trips. The Phelans would ride
their bikes to town with the McCarthy family, and decedent's interaction with
her children was always warm and positive. McCarthy, a reporter for a local
newspaper, wrote an article about decedent's aspiration to open a bakery in her
In this regard, Anthony Strianese, a professor and chairperson of the Hotel,
Culinary Arts and Tourism Department at Schenectady Community College, testified
that decedent had 69 credits in this program (T:406). She had been named to the
President's List for achieving a grade point average of 3.7 or higher (Exhibit
53), and she only had one or two courses to complete before obtaining her
Finally, claimant offered the testimony of economist, James
He calculated three categories of economic loss due to decedent's death: lost
earnings, loss of household services to her children, and medical and funeral
expenses. As for lost earnings, he assumed that the loss would accrue only until
the youngest child reached the age of 21. The Court admits the two methods used
by Lambrinos to calculate decedent's lost earnings (Exhibit 58). The first
method was based upon $8,100, her actual part-time earnings in the year prior to
her death [Exhibits 13 & 14]). Based on this method, decedent's past lost
earnings were $12,898, and the future lost earnings were $78,708 (T:433). The
second method was based upon $18,296, the earnings decedent would have earned
had she become a full-time baker. The past lost earnings based upon this method
was $29,133 (T:434), and the future lost earnings were $177,785
Lambrinos also calculated the loss of household services for decedent's
children. In this calculation, he factored in the age of the children, that
decedent was the primary caretaker, and that she was employed part-time. He
estimated the value of the services she performed for herself as 15% and
deducted such amount from the totals. He found that the past loss of household
services was a total of $21,082 (T:441), and the future loss of household
services, using a 2.5% inflation rate, was a total of $124,424
The total economic loss, excluding costs for decedent's funeral and medical
treatment (Exhibits 29-30), with lost earnings based upon $8,100, was calculated
($33,980/past and $203,132/future [T:450]). With lost earnings based upon
$18,296, the total economic loss was calculated as $352,424 ($50,215/past and
Upon cross-examination, Lambrinos admitted that he had no personal information
that decedent would be employed as a baker after her death or that she was
making inquiries for a position as a baker. Lambrinos assumed that decedent
would work for another employer and not embark upon a sole proprietorship. It is
noted that defendant did not offer expert testimony with respect to
As previously stated, claimant argues that defendant's negligent repair of the
roadway caused the depression that led to decedent's accident and death.
Defendant counters that the depression did not cause decedent's fall and even if
it did, decedent assumed the risk of injury.
Thus, to begin, claimant must establish by a preponderance of the credible
evidence that defendant's negligence was the proximate cause of decedent's
injuries (see e.g. Burgos v Aqueduct Realty Corp.
, 92 NY2d 544,
550 ). Although claimant contends that a lesser burden of proof is
applicable under the Noseworthy
doctrine, the Court disagrees.
doctrine permits a "relaxed burden of persuasion" where a
victim cannot provide his or her account of the accident (see Alber v
State of New York
, 252 AD2d 856, 857 [3d Dept 1998]; Ether v State of New
, 235 AD2d 685, 687 [3d Dept 1997]), and has been applied in cases with
eyewitnesses (see Schechter v Klanfer
, 28 NY2d 228 ;
Swensson v New York, Albany Desp. Co., Inc.
, 309 NY 497 ). The
doctrine does not apply where a claimant and defendant have equal access to the
facts surrounding the decedent's death (see Orloski v McCarthy
274 AD2d 633 [3d Dept 2000], lv denied
95 NY2d 767 ; Walsh v
, 267 AD2d 172 [1st Dept 1999]; Gayle v City of New York
AD2d 541, 542 [2d Dept 1998]; Wright v New York City Hous. Auth.
AD2d 327, 332 ). Although defendant does not oppose the application of the
doctrine, the Court is unpersuaded that it applies as the
parties had equal access to the two eyewitnesses to the accident, Joanne Sheldon
and William Phelan, and defendant did not have any other evidence to explain how
this accident occurred. Thus, claimant must establish by a preponderance of the
credible evidence that defendant's negligence caused decedent's death. Based on
the foregoing, the Court determines that claimant has carried this
"As a landowner, the State has a duty to use reasonable care under the
circumstances in maintaining its property in a safe condition" (
Colangione v State of New York
, 187 AD2d 844, 845 [3d Dept 1992], quoting
Basso v Miller
, 40 NY2d 233, 241 ). The duty to exercise reasonable
care requires that the State, as the owner and operator of a recreational area,
protect the public from foreseeable risks of harm (see Basso v
). Like any other landowner, however, the State is not
an insurer of the safety of those using the property for recreational purposes,
and the mere happening of an accident does not render the State liable
(see Paul v Kagan
, 92 AD2d 988, [3d Dept1983]).
Next, latent hazards give rise to a duty to warn entrants and protect them from
that danger (
see Tagle v Jakob
, 97 NY2d 165 ; Soich v Farone
AD2d 658, 659 [3d Dept 2003]).
Even where the condition is open and obvious,
a landowner's duty to maintain property in a reasonably safe condition is not
obviated; it merely negates the requirement to warn of such a condition
(see MacDonald v City of Schenectady
, 308 AD2d 125 [3d Dept
2003]). In either case, however, a claimant must still demonstrate that the risk
of harm was foreseeable because the State had actual or constructive notice of
the condition and failed to act reasonably to remedy it (see e.g.
Morrow v Ashley
, 3 AD3d 619, 620 [3d Dept 2004]). Where the landowner
creates the dangerous condition that causes the accident, the landowner is
deemed to have actual notice of such condition (see Lewis v
Metropolitan Transp. Auth
, 99 AD2d 246, 249 [1st Dept 1984], affd
NY2d 670 ).
Here, the Court credits Gonseth's testimony that a major repair had been
undertaken at the depression located on the right side of the park roadway
located near campsite 23. The Court also credits the testimony of William and
Sheldon that decedent's bike tire hit this depression and caused her to lose her
balance and fall. Gonseth was persuasive that the repair was negligently
undertaken in that it was not properly packed, thereby causing a sinking of the
road, creating a depression.
The only witness that defendant produced about its maintenance of this road was
Christopher Fallon. He contradicted his original testimony and admitted that he
passed the depression and the culvert frequently and that he was responsible for
the repair budget. As can be seen from the many exhibits displaying the
triangular depression in the roadway,
it had been repaired. Defendant offered no proof regarding how many times it was
repaired, by whom or with what materials. This is noteworthy since
"[s]ignificance must be given to the failure of the State to rebut the testimony
of claimant's engineer that the path was not constructed in accordance with good
practice" (Nichols v State of New York
, 286 App Div 281, 283 [3d Dept
1955]). Further, by the testimony of Fallon, defendant had knowledge of the
depression, and in any event is deemed to have actual notice of this condition,
since defendant created it, and yet defendant failed to remedy it. The Court
further determines that this depression was a latent hazard based upon the
testimony of Sheldon and Gonseth that it was on an incline with a curve, thereby
making the depression difficult to see.
Based on the foregoing, the Court determines that claimant has established a
prima facie claim by demonstrating that the depression was a latent dangerous
condition created by defendant, that not only defendant failed to warn decedent
of this condition but also failed to remedy it, and that this condition caused
decedent's fall and subsequent death. As such, the Court turns its attention to
defendant's affirmative defense of assumption of risk. Defendant contends that
this doctrine is a complete bar to recovery where, as here, a claimant is
participating in a sport. The Court does not agree.
Assumption of Risk
Assumption of risk encompasses two distinct doctrines. The first is akin to
comparative negligence and does not bar recovery, but reduces recovery in the
proportion to which a claimant's culpable conduct contributed to his or her
see Lamey v Foley
, 188 AD2d 157 [4th Dept 1993]; CPLR 1411).
Here, the Court is concerned with the second doctrine, referred to as primary
assumption of risk (id.
). It is not a measure of comparative fault, but
a measure of the defendant's duty of care (id.
). Comparatively, primary
assumption of risk generally serves as a complete bar to recovery when a
claimant's injury results from the voluntary participation in a recreational
activity (see Connor v Tee Bar Corp.
, 302 AD2d 729 [3d Dept
2003]). "It is well settled that a voluntary participant in a sport or
recreational activity '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' " (id.
at 730, quoting Morgan v State of New
, 90 NY2d 471, 484 ). A participant will not be deemed to assume
the risk, however, if the risks "were unique and resulted in a dangerous
condition over and above the usual dangers inherent in the activity"
, 302 AD2d at 730, quoting Rios v Town of Colonie
, 256 AD2d
900 [3d Dept 1998]).
Factors to consider in the determination of whether a claimant assumed the risk
are: the "openness and obviousness of the risk, [claimant's] background, skill
and experience, [claimant's] own conduct under the circumstances, and the nature
of defendant's conduct" (
, 155 AD2d at 164). The most important factor is whether the risk is
inherent in the activity (see id.
). Applying these factors to the
testimony presented, the Court determines that the depression was not open and
obvious, and claimant, a recreational bicyclist, who had not traveled on the
roadway previously, did not assume the risk of encountering this type of
unwarned hazard. In making this determination, the Court is mindful of
Furgang v Club Med
(299 AD2d 162 [1st Dept 2002], lv denied
NY2d 504 ). In Furgang
, the Appellate Division First Department
stated that the risk of encountering ruts and bumps while riding a bike over a
rough roadway without a helmet should be obvious to the experienced cyclist, and
that a plaintiff assumes any risk inherent in that activity (id.
Court distinguishes this case in that a depression caused by a sinking repair is
not an ordinary rut or bump in the roadway, which is ordinarily caused by travel
upon the road. Further, the decedent was a recreational bicyclist who had not
previously traveled the road.
The Court also distinguishes
Dobert v State of New York
, 8 AD3d 873 [3d Dept 2004]). In Dobert
claimant admitted that she saw the crevice in the road before she encountered
it. Here, defendant presents no evidence that decedent saw the depression.
Moreover, after reviewing all the photographs of the accident scene, the Court
determines that the depression caused by the negligent repair was not
discernable due to the decline and curve in the road. Thus, the Court is
unpersuaded by defendant's argument that decedent consented to this risk
inasmuch as the risk was hard to see and was unknown to decedent since she had
not previously bicycled on that road. As such, claimant 's recovery is not
barred by assumption of risk. Accordingly, the Court finds that claimant has
established his claim by a preponderance of credible evidence and next considers
the issue of damages.
Initially, the Court declines to mitigate any damage award for decedent's
failure to wear a helmet at the time of the accident. Decedent was not required
to wear a helmet (
Vehicle and Traffic Law § 1238  [b]), and, furthermore, no
persuasive testimony, medical or otherwise, was proffered to establish that her
injuries would have been either avoided or reduced had she worn a helmet
(see Dean v Holland
, 76 Misc 2d 517 ).
Next, the Court declines to award damages for decedent's alleged post-impact
pain and suffering since claimant has failed to prove that decedent was
conscious after her fall. To establish conscious pain and suffering, a claimant
must demonstrate, through direct or circumstantial evidence, some level of
awareness for some period of time following an accident (
see Cummins v County of Onondaga
, 84 NY2d 322 ; McDougald
, 73 NY2d 246, 255 ; Ramos v Shah
, 293 AD2d 459, 460
[2d Dept 2002]). " '([M]ere conjecture, surmise or speculation is not enough to
sustain a claim for [pain and suffering] damages' " (Cummins
, 84 NY2d at
325, quoting Fiederlein v New York City Health & Hosps. Corp.
NY2d 573, 574 ). When the interval between injury and death is relatively
short, "the degree of consciousness, severity of pain, apprehension of impending
death, along with duration are all elements to be considered" (Ramos
AD2d at 460, quoting Regan v Long Is. R.R. Co.,
128 AD2d 511, 512 [2d
Here, Sheldon provided the Court with the only testimony regarding decedent's
condition after her fall. She said that decedent was gurgling on her own blood,
tried to lift her head and her back left leg moved slightly. There was no
evidence that she cried out in pain, made any noise in pain or sought aid
following the accident (
see Cummins v County of Onondaga
; Saguid v
, 213 AD2d 770, 772 [3d Dept 1995], lv dismissed
NY2d 861 , lv denied
88 NY2d 868 ). Further, claimant does
not provide any medical expert testimony that decedent had some level of
awareness in the short interval between her fall and death, and the autopsy
report was silent in this regard. Thus, based upon the evidence before the
Court, it would be mere conjecture to assign a level of consciousness to
decedent for the brief interlude between injury and
With respect to the claim for pre-impact terror, the Court reaches the same
result. The Court credits Sheldon's testimony that decedent struggled to regain
her balance on the bicycle before she fell (T:32). There is no testimony,
however, that decedent perceived grave injury or death to be imminent (
Lang v Bouju
, 245 AD2d 1000 [3d Dept 1997]), and any such finding by the
Court would be mere speculation. Further, the nature of the accident itself does
not demand such a finding. As tragic as this accident was, typically, a fall
from a bicycle does not place one in apprehension that he or she is about to
endure grave injury or death. As such, the Court declines to make an award for
With respect to pecuniary damages, Estates, Powers and Trusts Law §
5-4.3(a) limits a claimant's recovery for pecuniary injuries resulting from
decedent's death, as there is no recovery for the loss of parental companionship
see Chong v New York City Tr. Auth.
, 83 AD2d 546 [2d Dept 1981]).
At the time of decedent's death, William and Allison were 11 and 9 years old,
respectively, and a parent has the legal duty to support a child until he or she
is 21 years old. (see
, Matter of La Blanc v La Blanc
, 96 AD2d 670
[3d Dept 1983]; Family Court Act, § 413  [a]). Moreover, since a
pecuniary advantage results from "parental nurture and care, physical, moral and
intellectual training", the loss of these benefits may be considered within the
pecuniary loss calculation (DeLong v County of Erie
, 89 AD2d 376 [4th
Dept 1982], affd
60 NY2d 296; see Gonzalez v New York City
Health and Hosps. Corp.
, 98 AD2d 685 [1st Dept
Based upon the testimony of Phelan and his son, William, together with the
testimony of decedent's friends, the Court is convinced that decedent was a
warm, loving mother who put the needs of her children first throughout her life.
Her countless activities in this regard, volunteering at school, encouraging her
children to participate in after-school activities, helping them with their
homework, taking them on vacations, cooking, baking and cleaning for them and
making holidays special, are evidence of her love and commitment to their
well-being. The death of a mother, for a child of any age, is a great loss. The
Court recognizes that her parental nurturing and guidance was a tremendous loss
to these young children. As such, a total of $2,200,000 is awarded to Allison
and William for the loss of parental nurturing (
see Bryant v New York City Health and Hosps. Corp.
, 250 AD2d 797
[2d Dept 1998], affd in part
93 NY2d 592  [mod in part on other
; Bogen v State of New York
[UID # 2001-029-094, Claim No.
92429, dated Aug. 23, 2001, Mignano, J.], affd
5 AD3d 521 [2d Dept
Next, evidence of a decedent's gross income at the time of death is the
standard to measure the value of income already lost and to measure the loss of
future earnings (
see Johnson v Manhattan & Bronx Surface Tr. Operating Auth.
71 NY2d 198 ; Woodling v Garrett Corp.
, 813 F2d 543 [2d Cir 1987]).
Expected changes in the decedent's future earnings may be considered where it is
probable that such changes were forthcoming (see Mono v Peter Pan Bus
, 13 F Supp 2d 471 [SD NY 1998]); Wanamaker v Pietraszek
107 AD2d2d 1020 [4th Dept 1985]). "Damages for wrongful death are not
recoverable when they are based on contingencies which are 'uncertain, dependent
on future changeable events and, thus, inherently speculative' " (Mono
13 F Supp 2d at 478, quoting Farrar v Brooklyn Union Gas Co.
, 73 NY2d 802
). Thus, in Morales v City of New York
(115 AD2d 439 [1st Dept
1985]), the Court held that plans to open an automobile repair shop where a
decedent's work record indicated that he never earned more than $6000 in any
year, were speculative. Similarly, while decedent had hoped to be a baker and
open her own bakery, the only evidence before the Court was, at best, a notebook
of ideas. Although her friends wrote character letters for a business loan, no
application for a loan was offered into evidence. This Court cannot award
damages based on such speculative evidence. The Court, therefore, awards damages
for past and future lost earning based upon decedent's earnings in the 12 months
prior to her death and not what she would have earned as a
The standard by which to measure the value of past and future loss of household
services is the cost of replacing the decedent's services (
see Klos v New York City Tr. Auth.
, 240 AD2d 635 [2nd Dept 1997],
91 NY2d 846 , lv dismissed
91 NY2d 885 ).
Recovery for lost services in a wrongful death action does not require that the
claimant actually hire someone to perform the decedent's
Based on the calculation provided
by claimant's economist, the Court awards $21,082 for past loss of household
services and $124,424.00 for future loss of household
Accordingly, William and Allison Phelan are entitled to a collective award for
damages for the wrongful death of their mother in the amount of $2,437,112 as
Loss of Parental Nurturing $800,000
Past Lost Wages
Past Loss of Household Services $
PAST DAMAGES TOTAL: $833,980
Loss of Parental Nurturing $1,400,
Future Lost Wages
$ 78,708Future Loss of Household Services $ 124,424
FUTURE DAMAGES TOTAL: $1,603,132
WRONGFUL DEATH : $2,437,112Negligent Infliction of
A party is entitled to recover damages for the negligent infliction of
emotional distress when (1) a defendant's negligent conduct creates an
unreasonable risk of bodily harm to a claimant, i.e. he or she is in the zone of
danger, and (2) such conduct is a substantial factor in bringing about injuries
to the claimant as a result of (3) shock or fright from his or her
contemporaneous observation of serious physical injury or death inflicted by the
defendant's conduct on (4) a member of the plaintiff's immediate family in his
or her presence (
Bovsun v Sanperi
, 61 NY2d 219, 223 ). Further, "[t]he emotional
disturbance suffered must be serious and verifiable" [and] must be tied, as a
matter of proximate causation, to the observation of the serious injury or death
of the family member" (id.
While William's observation of his mother's accident and fear of his own
potential demise are very significant emotional events, claimant did not provide
the Court with sufficient evidence that Will's emotional injuries were lengthy
or permanent. Will testified that he was nervous after the accident so he went
to a park booth to seek assistance. He and his sister attended grief counseling
at the Wave program until the program concluded. Although there was testimony
that he is a special-needs student, there was no testimony connecting his
special needs to his mother's accident. No testimony was adduced that Will's
nervousness continued after his mother had died, that the grief counseling was
meant to address his emotional distress above and beyond that which is incurred
when a mother dies, or that his problems in school were related to his
observance of his mother's death. Nonetheless, the fact that Will "has not
sought any medical treatment or psychological counseling for his alleged
injuries, while relevant to the issue of damages, does not necessarily preclude
his recovery" (
Massaro v O'Shea Funeral Home
, 292 AD2d 349, 351 [2d Dept 2002]).
"[T]here exists 'an especial likelihood of genuine and serious mental distress,
arising from the special circumstances, which serves as a guarantee that the
claim is not spurious' " (Johnson v State of New York
, 37 NY2d 378, 382
, quoting Prosser and Keeton, Torts § 54, at 330 [4th ed]).
Accordingly, based on William's testimony regarding his emotional trauma and
suffering, the Court awards him $25,000 for the negligent infliction of
emotional distress due to the State's negligent repair of the roadway that
caused his mother's death.
As a final matter, pursuant to EPTL § 5-4.3 (a), claimant is awarded
$7,122.17 for the medical and funeral costs associated with decedent's accident
as established by the record (Exhibits 29 & 30).
The Chief Clerk is directed to stay the entry of judgment in accordance with
this decision until a hearing is held pursuant to CPLR article
All trial motions not heretofore decided are now deemed
June 29, 2005
HON. JUDITH A. HARD
Judge of the Court of Claims
Kevin J. Phelan brings this claim
individually, as administrator of the estate of decedent and as the parent and
guardian of William R. Phelan. For ease of reference, all references to claimant
shall refer to Kevin J. Phelan in all of his capacities.
The claim on behalf of Kevin J. Phelan for
loss of consortium, due to William's psychological injuries and for future
medical and psychological treatment, is deemed abandoned inasmuch as claimants
failed to offer proof at trial or raise the claim in their post-trial
Unless otherwise noted, all page references
are to the consecutively paginated five-volume trial transcript and are preceded
The State Police Investigation Report notes a
statement by another park patron that he observed two children on separate
occasions fall at this location while riding their scooters (Exhibit 34, p 5).
Phelan, a geologist, was not disclosed or
credited as an expert. Defendant did not, however, object to this statement.
Defendant did not object to this statement
regarding the post-accident repair.
Exhibit 37 is not admitted into evidence since
it pertains to potential subsequent repairs (see Ramundo v Town of
,142 AD2d 50 [3d Dept 1988]). Any trial or deposition testimony
of Fallon relating thereto is struck from the record.
A photograph of the accident scene taken the
next day is admitted for the purpose of indicating where Fallon believed he
observed decedent's body on the day of the accident (Exhibit J). The Court notes
that Fallon admitted on cross-examination that he did not observe the accident
and that her body had been moved after impact.
Gonseth graduated from Clarkson University in
1956 where he obtained a degree in civil engineering, and he is a licensed
professional engineer in New York. After graduation, he immediately went to work
for the Port Authority of New York and New Jersey, in a position that included
the maintenance of roads and culverts. He is a member of various professional
Green is a licensed civil engineer in North
Carolina. He is a member of the National Academy of Forensic Engineers and
claims to be a bicycle accident reconstruction expert. He has had his own
consulting business since 1981. He has worked with Duke University and Wayne
State University in the study of force impact to the head. He has been an input
engineer for helmet standards since the mid-1970's, and is a professional
Green claimed he was the author of a
textbook entitled "Bicycle Accident Reconstruction for the Forensic Engineer".
It was supposedly marked as Exhibit M; however, Exhibit M is a photograph. Green
never explained his kinetics theory or whether such theory has been sufficiently
relied upon by experts in the field (see People v Sugden
, 35 NY2d
453 ; Borden v Brady
, 92 AD2d 983 [3d Dept 1983]).
Green testified that studies in his lab
would verify that, in a simple fall sideways, a helmet gives 100% dissipation of
force, so that the head is not injured. This testimony is not admitted since
defendant failed to establish that it is generally accepted as reliable
(People v Wesley
, 83 NY2d 417 ).
Any testimony about post-accident
modifications to the road by Green is struck.
Green testified that he could see the
location of the depression when he was at the accident scene early in the week
of this trial. Approximately 36 hours later, Phelan went to the accident scene
and saw snow and ice covering the depression. Within a day of Phelan's visit,
Fallon visited the accident location. Fallon's testimony is admitted as it was
proper rebuttal to Phelan's rebuttal testimony. The Court, however, does not
attribute much weight to either testimony since the condition of the road, e.g.
whether it was covered with snow and ice, could have changed between the time of
each of these visits.
The notebook is admitted over defendant's
objection (Exhibit 15) (see Provenzo v Sam
, 23 NY2d 256 ).
However, Exhibit 57, which was claimed to be contained within Exhibit 15, is not
admitted since an identical document was not found therein.
Defendant's objection to this testimony is
Hesse's testimony about decedent's hope to
open a bakery business is admitted (see Provenzo v Sam
, 23 NY2d
This article is admitted over defendant's
relevancy objection [Exhibit 51].
Lambrinos is a professor of economics at
Union University with an area of expertise in labor and medical economics. He
has a bachelor's degree in economics and mathematics from Farleigh-Dickinson
University. He obtained a master's degree and Ph.D. in economics from Rutgers
University. He has published 50 professional articles, some in the area of
economic forecasting. He is a member of various professional
A rate lower than the wage inflation rate
Although defendant raised in its answer
that it did not owe a duty of care to decedent pursuant to General Obligation
Law § 9-103, it did not pursue this defense at trial or in its post-trial
memorandum. Even if it had, the Court notes that supervised public parks fall
outside the immunity of General Obligations Law §9-103 (Sena v Town of
, 91 NY2d 611 ; see also Smith v State of New
, 124 AD2d 296 [3d Dept 1986]).
The Court notes defendant's objection to
the use of earnings in the twelve months prior to decedent's death and not a
calendar year, but finds the difference negligible.
Claimant's objection to testimony elicited
upon cross-examination regarding Phelan's services to the children is sustained.
As Judge Minarik succinctly noted in LaMendola v New York State Thruway
, Claim No. 93132, dated June 23, 2004, Minarik, J. (UID #
2004-031-510), defendant's reliance upon Schultz v Harrison Radiator Div.
Gen. Motors Corp
.(90 NY2d 311 ) is misplaced since it concerned a
personal injury action. In a wrongful death action, no proof is required that
someone was hired to perform such services (see Mono v Peter Pan Bus
Defendant did not, on its own behalf,
provide alternate estimates of damages through an expert economist.
All interest calculations shall be decided
pursuant to such hearing.