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.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
The Redlich Law Firm
By: Warren Redlich, Esquire andTheodore Robinson, Esquire
Honorable Eliot Spitzer, Attorney General
Dennis M. Acton,
EsquireAssistant Attorney General
May 3, 2006
See also (multicaptioned
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.
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
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
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.
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
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?
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"
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
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).
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
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of