PIMENTEL v. THE STATE OF NEW YORK, #2006-010-016, Claim No. 110029
Claimant sought damages for a slip and fall at Rockland Lake State Park. The
claim was dismissed as the Court found that the defect did not constitute a trap
or nuisance and claimant’s fall was due to his own inattentiveness.
1 1.The Court has, sua sponte, amended the caption to reflect the only proper
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
The Court has, sua sponte, amended the caption to
reflect the only proper party defendant.
Terry Jane Ruderman
ALLYSON J. SILVERMAN, ESQ.By: Irwin B. Silverman, Esq., Of Counsel
HON. ELIOT SPITZER
Attorney General for the State
YorkBy: Wanda Perez-Maldonado, Assistant Attorney General
June 9, 2006
See also (multicaptioned
Claimant seeks damages for injuries he allegedly sustained at Rockland Lake
State Park in the afternoon on August 1, 2004. According to claimant, he was
attempting to retrieve a softball when he slipped and fell into a puddle which
he described as six inches deep and two to three feet wide and long. The trial
of this claim was bifurcated and this Decision pertains solely to the issue of
Claimant testified that he arrived at the park between 2:00 p.m. and 2:30 p.m.
with his girlfriend, Lourdes Vasquez, and her children. After parking the car,
they carried food packages to an area known as field 2. Claimant explained that
it was their summer Sunday routine to picnic in the park and play softball with
friends and family. Claimant estimated that during June and July 2004, he had
been to the park at least twice. From prior visits, claimant was aware that in
field 2 there were patches where the grass did not grow and certain puddles
after a rainfall.
According to claimant, approximately one hour after arriving at the park, he
was walking across the field while two of his friends, Franklin Liz and Luis
Cruz, were playing catch with a softball. Cruz missed the ball. As claimant
tried to pick up the ball, he slipped and fell into what he described as a hole.
Claimant landed on his hand and was covered in mud from the puddle.
Liz called 911. Police and an ambulance responded to the scene. The Police
Report revealed that when questioned by an officer, claimant stated that
“he was playing ball when he slipped in a puddle on the grass” (Ex.
4). At trial, claimant maintained that he was not engaged in a game of
softball; rather his friends were just having a catch and he tried to throw the
errant ball to them. He testified that he reacted to the ball, almost like a
reflex, and on his own initiative he went to retrieve it
His friends had not asked him to get
the ball. He testified:
“Louis [sic] missed the ball. The balled [sic] rolled, and as I was
walking, I noticed the ball, I tried to stop the ball, okay. When I tried to
pick up the ball like to pass it – just to toss it because he was walking
– he was running after the ball, I tried to stop the ball, try to pass the
ball to him. As I did, I slipped.”
When questioned about his activities after he arrived at the park, claimant
offered confusing and contradictory testimony regarding the time span.
Initially, he testified that he and Vasquez had only gone back and forth to the
car twice carrying food and then the two of them walked around the field (T:11).
Later, claimant testified that he fell while reaching for the ball with one hand
and holding a shopping bag in the other hand (T:87-88). Professing confusion,
to fill in the gap in time, he then testified that he went home in the middle of
the afternoon. Claimant never really answered the question as to what he was
doing when he fell.
When asked at trial whether he noticed any wetness on the ground as he was
walking prior to his fall, claimant testified that the ground was “not
wet” (T:52). However, to the contrary, when asked the same question at
his examination before trial, he responded “I did, I did” (T:53).
The following ensued on claimant’s cross-examination:
Q: So it would be fair to say that you did see this puddle when you were walking
around the park, correct?
A: I don’t know if I saw it like specifically, You know, probably I
Q: Now, there wasn’t anything blocking you from looking at the field,
Q: So had you looked in that area, you would have seen that puddle, correct, Mr.
A: The thing is I didn’t see it.
Q: Well, my question is, had you looked in that area, you could have seen that,
correct, Mr. Pimentel?
A: If I looked in that area, probably I could have.
(T:58). Thus, at trial, he conceded that there was nothing blocking his view of
the puddle and though he did not know if he specifically saw the puddle before
he fell, he conceded that he “probably” saw it before he fell
(T:108). When pressed further by his own counsel, “what made you go into
the puddle” claimant answered, “I [just tried] to stop the
Luis Cruz testified that he has been claimant’s friend for nine to ten
years and for the past four to five summers, he met claimant approximately three
Sundays a month at the park to play softball. Contrary to claimant’s
testimony that he had only been at the park three times during June and July
2004, Cruz estimated that he and claimant had been at the park together at least
five times. Cruz testified that on August 1, 2004 he was playing catch and
missed the ball. Cruz did not see claimant until he was on the ground.
Lourdes Vasquez testified that she and claimant often went to field 2 at the
park on Sundays in the summer. According to Vasquez, they had been in the park
for two hours prior to claimant’s fall and claimant had never left the
park. Vasquez was walking ahead of claimant when he fell. Vasquez denied that
she had been walking around the park with claimant earlier in the
Dennis Haight, who had been employed by the New York State Office of Parks and
Recreation as the manager of the Park from 1999 to 2005, testified he was
familiar with field 2. He examined the photographs in evidence of the puddle
(Exs. 1, 2) and agreed that the condition shown had occurred repeatedly over the
years. He also testified that nothing was done to remedy the situation and no
attempts were made to regrow the grass because the area was open and obvious and
of no significant depth. Haight explained that the park was a rustic site and
the field was a natural expanse rather than a formal lawn. The field was 300
feet by 150 feet and used for picnics, baseball, volleyball and soccer. Haight
further testified that in dry weather it was apparent that there were certain
portions of the field where grass did not grow and dry spots were very visible.
After rain, some water would puddle.
Jose Uribe testified that for the last six years he has been employed to mow
grass at the park from April to October. He is familiar with field 2 and the
area of claimant’s fall. During the summer season, Uribe used a tractor
to mow the grass on the field. He knew that the depth of the puddle was only
about an inch because he had inspected the area and did not have to make any
adjustments for the cutting blade of the tractor (T:237-38).
The State, as owner and operator of the park, has a duty to use reasonable
care in maintaining the property in a reasonably safe condition to prevent the
occurrence of foreseeable injuries (see Basso v Miller, 40 NY2d
233, 241). While the State also has a duty to warn the public of any latent
dangers that are not readily apparent (see Walter v State of New
York, 185 AD2d 536), claimant is bound to see that which could have been
observed by a proper use of his senses (see Coote v Niagara Mohawk
Power Corp., 234 AD2d 907) and the State is not obligated to warn against a
condition that could be readily observed by the use of one’s senses
(Moriello v Stormville Airport Antique Show & Flea Mkt., 271 AD2d
“Negligence cannot be presumed from the mere happening of an accident. It
is incumbent upon the part of claimant to show affirmatively by competent
evidence that the injury complained of was caused by reason of some breach of
duty by the State. Negligence must be proven.”
(Mochen v State of New York, 57 AD2d 719, 720). A landowner will not be
held liable for conditions inherent in the nature of the land that could
reasonably be anticipated by its users (see Torres v State of New
York, 18 AD3d 739; Nardi v Crowley Mar. Assoc., 292 AD2d 577,
Upon review of all the evidence, including a review of the photographs in
evidence and listening to the witnesses testify and observing their demeanor as
they did so, the Court finds that claimant has failed to establish that
defendant was negligent in either its maintenance of the field or its duty to
warn of any latent dangers (Tripoli v State of New York, 72 AD2d 823
[claimant did not establish State was negligent in its maintenance of park where
claimant fell in hole one foot wide and eight to twelve inches deep in grass
covered portion of parking lot]).
Claimant had been to the park and field 2 on numerous occasions prior to his
accident and was in the area for several hours prior to his fall. Therefore, he
should have been aware of the rustic nature of the area and necessarily observed
that which was there to be seen (see DeLaurentis v Marx Realty &
Improvement, 300 AD2d 343 [claimant fell while descending a hill on an
unpaved path; no liability where condition was inherent in dirt path known to
plaintiff and readily observable]; Nardi v Crowley Mar. Assoc., 292 AD2d
577, supra [claimant assumed risk inherent in walking on moss-covered
incline, which was an open and obvious hazard]). Claimant testified that his
accident occurred when he was carrying a shopping bag in one hand and reacting
to an errant ball he was trying to stop with his other hand. The evidence leads
to the conclusion that the defect did not constitute a trap or nuisance and
claimant’s fall was due to his own inattentiveness (see Kojtari
v State of New York, 282 AD2d 437; Paulo v Great Atlantic & Pacific
Tea Co., 233 AD2d 380).
Defendant’s motion to dismiss, upon which decision was reserved, is now
All motions upon which decision was reserved are now DENIED
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 110029.
June 9, 2006
Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of
. References to the trial transcript are
preceded by the letter “T.”