New York State Court of Claims

New York State Court of Claims

AGRESTA v. THE STATE OF NEW YORK, #2006-015-543, Claim No. 109525


SUNY at Albany student's claim for personal injury sustained by being struck by a brick-based balloon bouquet at Fountain Day event dismissed after trial.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
The Redlich Law Firm
By: Warren Redlich, Esquire andTheodore Robinson, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 3, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

A bifurcated trial on the issue of liability was held on January 9, 2006. The circumstances underlying the claim are set forth in paragraph 5 of the claim which reads as follows:
The said injuries and damages for which the claim is hereby made arose in the following manner, to wit, that on the 22nd day of April, 2004, at approximately 2:00 p.m., while the claimant, Matthew Agresta, was lawfully on the defendants premises, he was hit on the head by a brick dropped by an unidentified person. Said brick was placed by the defendants on the upper level of the area near the fountain in a negligent manner, in that the event in question, Fountain Day, was known by the defendants to be attended by large numbers of intoxicated persons and it was reasonably foreseeable that an intoxicated person would drop such a brick upon persons on the lower level.

At the beginning of trial the parties stipulated to the receipt in evidence of claimant's Exhibits 1 through 5, photographs depicting the fountain area of the State University of New York at Albany (SUNYA) campus in Albany, New York.
Michael Jaromin was the first witness called at trial. Mr. Jaromin, the Director of Student Activities, described Fountain Day at the State University of New York at Albany as an annual event held to celebrate the turning on of fountains on the SUNYA campus. Food and music are provided during the one to two hour event which the witness estimated is attended by "a few thousand students". Mr. Jaromin acknowledged that in his experience some students attend Fountain Day in an intoxicated condition. Although he was initially unable at trial to identify the percent of students attending Fountain Day who are intoxicated he agreed that his estimate of 25% at his examination before trial was generally accurate. During Fountain Day it was not unexpected that students would occupy both the lower level where the fountain and pool are located as well as the elevated decks surrounding the fountain area. The witness was aware that balloons had been placed around the elevated deck area although he was not involved in the placement of the balloons which was coordinated between the involved vendor and another SUNYA employee.
Mr. Jaromin reviewed Exhibits 1 - 5. Exhibits 1 through 3 he had previously reviewed at his examination before trial, Exhibits 4 and 5 he had not. The witness described Exhibit 4 as depicting a scene typical of Fountain Day in general, and Fountain Day 2004 in particular. He described Exhibit 5 as an accurate depiction of the height differential which exists between the lower fountain level and the surrounding upper level of the fountain area at SUNYA. Mr. Jaromin described Exhibit 1 as a photograph showing balloons tied to white objects which he described as weights. The photograph also shows a fence composed of posts connected by a chain which he estimated hung approximately two feet above ground level.
The witness was not subjected to cross-examination.
Claimant's next witness was Jennifer Anderson. Ms. Anderson testified that as part of her duties as an employee of SUNYA she interacted with vendors contracted to provide services at Fountain Day 2004, including "Party with Mia" which provided balloons for the event. The witness testified that she both ordered the balloons and provided the vendor a general idea of where the balloons should be placed. Pursuant to the invoice, balloons placed along the upper deck area surrounding the fountain were to be weighted.
Ms. Anderson described Exhibit 2 as a photograph showing balloons placed along stair railings and in the planter or non-pedestrian area of the upper level surrounding the fountain which the photograph shows is enclosed by and separated from the pedestrian or public areas of the upper level by a chain fence. She described Exhibits 1 and 3 as depicting balloons tied to white objects but was unable to identify the objects.
The witness denied that she provided "Party with Mia" any specific instructions regarding the method by which the balloons were to be weighted. The vendor was directed to distribute the balloons around the upper deck and the invoice required that the balloons be weighted. Ms. Anderson stated that she was satisfied with the manner in which the vendor placed the balloons around the upper level of the fountain area. She testified that the balloons were located in an area separated from students and other pedestrians by a chain fence. She agreed that the balloons could have been tethered to either the chain or posts of the chain fence.
On cross-examination the witness stated that SUNYA has an open container policy which prohibits public consumption of alcohol on campus. The witness testified that all signs and other advertisements for Fountain Day 2004 specifically stated that "no alcohol, no open container of any sort were allowed on the lower deck". In addition, professionals from the Office of Student Affairs, student volunteers, residential life staff and SUNYA police were present at Fountain Day 2004 and responsible for insuring that no alcohol consumption occurred during the event. On redirect examination, Ms. Anderson confirmed that she observed the placement of balloons on Fountain Day 2004 and did not direct any changes.
Claimant did not appear at trial. Instead claimant's attorney read the following excerpt from the claimant's examination before trial which was received in evidence as Exhibit 6:
Q. I want you to continue to tell me what you did that morning up until the time you received your injury.

A. After that, we were just hanging out talking. One of my – Jason went into the fountain. He pulled me in and I got my feet wet, went back, and was just standing away from the fountain so they wouldn't pull me in because I just didn't want to get wet. I wasn't even dressed for it, and that's it, just talking and hanging out with everybody that was there.

Q. Nothing else disruptive occurring at that time?

A. No.

Q. And what's the next thing that you remember?

A. Then I was just talking to my friend Andrew and I felt something hit me my head and didn't even realize what it was, and then saw the blood coming over my glasses and realized, saw the brick on the floor with blood on it.

Q. Could you describe the brick for us, please?

A. It was wrapped in something white and it had balloons tied to it.

The claimant rested and the defendant moved to dismiss the claim for failure to establish a prima facie case. The Court reserved decision on the motion which is now denied.
The State, as all other landowners, owes those who enter upon its premises a duty to maintain its property in a reasonably safe condition under prevailing circumstances (Basso v Miller, 40 NY2d 233; Clairmont v State of New York, 277 AD2d 767; Boettcher v State of New York, 256 AD2d 882). The State is not, however, an insurer against all potential injuries and the mere occurrence of an accident does not establish liability (Killeen v State of New York, 66 NY2d 850; Condon v State of New York, 193 AD2d 874). To establish a prima facie case of negligence a claimant must demonstrate by a preponderance of the evidence that the defendant owed him (or her) a duty, the duty was breached and that the breach proximately caused claimant's injury (Kampff v Ulster Sanitation, 280 AD2d 797; Murray v New York City Hous. Auth., 269 AD2d 288). A defendant may be relieved from liability where the negligent or intentional act of a third party severs the causal connection between the defendant's negligence and the injuries suffered by the claimant (Vetrone v Ha Di Corp., 22 AD3d 835). To constitute such an intervening cause the act of a third party must be "of such an extraordinary nature or so attenuates defendant's negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant" (Kush v City of Buffalo, 59 NY2d 26, 33; Gordon v Eastern Ry. Supply, 82 NY2d 555; Carson v Dudley, 25 AD3d 983). The Court of Appeals held in Derdiarean v Felix Contracting Co. 51 NY2d 308, 315) that "[i]n such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" (citations omitted).
The photographs received in evidence as Exhibits 1-5 depict the area where Fountain Day 2004 was held. The lower level consists of a large shallow pool containing a circular fountain apparatus at or near its center. The pool, which is rectangular in shape, is bordered by a wide walkway. Surrounding the pool is an elevated area. The inside portion of this elevated area, that nearest the pool, is planted with low growing evergreen shrubs. The outer perimeter of the planted area is enclosed by a low chain fence and a two to three foot high ledge which is bordered by a walkway. The photographs, particularly Exhibits 1 and 3, depict several balloons tied to white objects, presumably bricks, placed at intervals around the pool area in the area containing the evergreen shrubs.
The question whether the State was negligent in permitting the balloons to be secured through the use of bricks placed around the elevated areas surrounding the pool presents a close question. Under the appropriate circumstances the use of bricks to weight the balloons could reasonably be viewed as excessive and presenting a potential danger to persons in the pool area below. However, the photographic evidence reveals that the balloons were placed in a location that was not intended for public use and was separated from the public areas (walkways) by both a fence and a two to three foot ledge. In fact, the photographs appear to demonstrate that the fence and ledge formed an effective barrier. Specifically, the photographs do not depict any individuals inside the low chain fence but rather demonstrate, particularly Exhibit 3, that attendees observing the activities from the elevated area around the pool either stood on the walkway or sat on the ledge outside the fence which separated the planter area where the balloons were located from the areas authorized for public use.
Apart from issues relating to the negligence of the State, however, the circumstances of this case require a further analysis since the claim alleges that the claimant "was hit on the head by a brick dropped by an unidentified person". While a landowner is under a common law duty to minimize dangers to persons entering upon his or her property, including the criminal acts of third parties, "the scope of the possessor's duty is defined by past experience and the 'likelihood of conduct on the part of third persons ... which is likely to endanger the safety of the visitor' " (Maheshwari v City of New York, 2 NY3d 288, 294, quoting Nallan v Helmsley-Spear, Inc., 50 NY2d 507 at p 519; see Cooney v Town of Oyster Bay, 251 AD2d 364).
Although there was testimony that some students attended Fountain Day in an intoxicated condition there was also testimony indicating that the use of alcohol on campus, and at Fountain Day in particular, was prohibited. There was also testimony that University police, staff and volunteers were present at Fountain Day 2004 and responsible, in part, for ensuring that no alcoholic beverages were consumed. Furthermore, because the individual who allegedly dropped or threw the brick which struck the claimant is not identified it is impossible to determine whether he or she was, in fact, intoxicated as alleged in the claim.
Most importantly, there is absolutely no proof of prior dangerous or criminal acts occurring at previous Fountain Day celebrations which might otherwise support a conclusion that the intentional act of dropping a brick into a pool full of students from an elevated position could have been predicted or should have been foreseen. "Neither decisional precedent nor public policy considerations support an extension of a landowner's duty of care to prevent the throwing of an object and the extraordinary accidents that may result" (Elardo v Town of Oyster Bay, 176 AD2d 912, 914; see also Barth v City of New York, 307 AD2d 943; Catlyn v Hotel & 33 Co., 230 AD2d 655). The same logic applies to the intentional act of the unknown third party in this case. As a result, the Court finds that even assuming, arguendo, that the State was negligent, the intentional and criminal act of the unknown third party in dropping a brick into the pool area during the 2004 Fountain Day celebration constituted a superseding cause which severed the causal nexus between any such negligence and the injuries sustained by the claimant. Claimant here does not allege that the brick was caused to strike the claimant other than by an intentional act and it is clear from the proof that the incident would not have occurred absent conscious human intervention.
The instant claim contains no specific reference to SUNYA's failure to provide adequate police protection for Fountain Day and claimant's attorney failed to file his bill of particulars with the Court Clerk as required by 22 NYCRR 206.5 (c) thereby depriving the Court of the opportunity to properly consider any such potential basis of liability. In counsel's memorandum of law, however, he argued that SUNYA's Student Activities Office should have arranged for SUNYA security personnel to be stationed on the upper level of the area surrounding the fountain to ensure that participants remained on the promenade and away from the weighted balloons. To the extent that these allegations are an attempt to predicate liability on a lack of police protection without alleging or proving a special relationship they are inadequate as a matter of law and are dismissed (Bonner v City of New York, 73 NY2d 930; McEnaney v State of New York, 267 AD2d 748).
In addition to the special relationship rule, it is also settled that colleges have no legal duty to shield their students from dangerous activities of other students (see Eiseman v State of New York, 70 NY2d 175; see also Ellis v Mildred Elley School, 245 AD2d 994, 995; Ruchalski v Schenectady County Community Coll., 239 AD2d 687).
For the reasons stated herein the claim is dismissed. The Clerk of the Court is directed to enter judgment in accord with this decision.

May 3, 2006
Saratoga Springs, New York

Judge of the Court of Claims