Redmond v. STATE OF NEW YORK, #2006-018-532, Claim No. 105433, Motion No.
Defendant’s motion for summary judgment is granted and the claim is
dismissed. The claim filed and served almost a year after the accident was
untimely. Defendant is entitled to summary judgment on its defense of
assumption of the risk.
|NICOLE REDMOND and TIMOTHY REDMOND
1 1.The Court has amended the caption sua sponte to reflect the State of
New York as the only proper defendant.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
sponte to reflect the State of New York as the only proper defendant.
DIANE L. FITZPATRICK
O’BRIEN BOYD, P.C.By: Stephen Boyd, Esquire
Attorney General of the State of New
By: Joel L. Marmelstein,
EsquireAssistant Attorney General
September 19, 2006
See also (multicaptioned
Defendant brings a motion to dismiss the claim and for summary judgment.
Claimantsoppose the motion.
Defendant argues the following: (1) The claim should be dismissed because this
Court lacks subject matter jurisdiction on the ground that the notice of
intention failed to satisfy the requirements of Court of Claims Act §
11(b), making the claim untimely;
derivative claim of Timothy Redmond is untimely because he was not named as a
potential claimant, and his cause of action was not mentioned in the notice of
intention served by Claimant, Nicole Redmond; (3) Timothy Redmond’s cause
of action must be dismissed since he failed to verify the claim; (4) Summary
judgment should be granted in favor of the State on several grounds: (a) that
Claimant’s conduct was the sole proximate cause of her injuries; (b)
Claimant assumed the risk of injury; (c) The snow ramp over which Claimant
traveled, was open and obvious and readily perceivable; (d) 9 NYCRR §
375.1(h) and (i) and § 377.1 exempt Defendant from any liability; and/or
(e) General Obligations Law § 9-103 applies, exempting Defendant from any
Most of the facts are undisputed. On January 13, 2001, at approximately 1:00
p.m., Claimant drove herself and her son, Parker, who was born on April 6, 1991,
to St. Lawrence State Park near Ogdensburg. The park includes a nine-hole golf
course which is bisected by New York State Route 37. A clubhouse and office
facility are located at the intersection of Route 37 and Stone Church Road
located near the first tee and ninth green. The golf course is open seasonally,
closing during the winter months. The park also includes a winter recreation
area accessible from Route 37 with a sledding hill, a building for warmth and
bathroom facilities, and a parking area. This recreation area is intended for
sledding and cross-country skiing and is supervised by State employees. Claimant
had been to this recreation area on a few previous occasions since 1994.
On January 13, Claimant and her son, Parker, went to the winter recreation area
to go sledding with several relatives and a friend of the family. Claimant
spoke to her brother-in-law, Michael Myers, from their respective vehicles.
Mr. Myers told Claimant that the recreation area was too crowded, so they were
going to go over to the first hole of the golf course to go sledding. Claimant
did not get out of her vehicle at anytime to go to the recreation area. From
the parking lot of the recreation area, Claimant drove to the first hole area of
the golf course which Claimant estimated to be approximately a tenth of a mile
down the road. Claimant had been to the golf course first hole area before but
only for golfing, not sledding. She parked, got out of her vehicle and put on
her snow gear, as did her son. Claimant’s sister, Mary Bishop, and Jason
Bland arrived at the golf course at about this same time.
Claimant brought two sleds and a snow tube. Claimant and her other family
members all proceeded to the first tee, which is adjacent to, and almost level
with, the clubhouse. From the first tee, there is a downward slope. Claimant
made her first sledding run at around 2:00 p.m., on the long sled. She made
approximately three runs before the accident, two runs on the sled and one on
the snow tube. The accident occurred between 2:30 and 3:00 p.m. On the fourth
run, Claimant went down the hill on the snow tube, got turned around so that she
was facing the roadway, and went over the snow ramp that was roughly a quarter
of the way down in the middle of the hill. The ramp was made of snow and was
approximately 4½ to 5 feet high, 4 feet wide, with a 10 feet run. Claimant
became airborne, her left hand came off of the handle of the snow tube and she
landed, she believes, on her neck. She heard a pop and felt a sting. As a
result of Claimant’s accident that day, she has suffered permanent
paralysis. Claimant was aware of the existence and placement of the snow ramp
prior to her accident, and her sister, Jane, had gone over the ramp earlier that
day, but without injury.
William Measheaw’s deposition testimony was provided; he is one of two
employees working the St. Lawrence State Park during the winter months. Mr.
Measheaw testified that he had seen other people sledding on the first fairway
at the golf course before, and he had demanded that they leave. He was,
however, not aware of anyone sledding at the golf course on January 13, prior to
Claimant’s injury. He testified that there were signs in place at the
golf course - one near the clubhouse indicated that the golf course was closed.
A sign located near the fourth tee indicated no jumps were to be made on the
greens. There were no signs prohibiting sledding on the fairway. Mr.
Measheaw said that some people built ramps/jumps on the golf course, typically
about five each winter season would be built, and he would have to knock the
ramps down, either using a tractor with a bucket or with shovels. Donald
Cameron, was golf course manager for the St. Lawrence State Park at the time of
Claimant’s accident. He testified, at his deposition, that the golf hill
was checked regularly for jumps and unauthorized sledders.
The primary disputed issue of fact is the length of time the snow ramp existed
prior to Claimant’s accident. Mr. Measheaw testified that he had checked
the first fairway that morning around 7:30 a.m. for jumps and none existed at
that time. Claimant submits the sworn affidavit of Ryan Bouchey indicating
that he had constructed a ramp at the location of Claimant’s accident
earlier during the week, at least a few days prior to January 13. Mr. Bouchey
also states that he went to the hill around 10:00 p.m. the night of January 12
and the ramp was still in place and was actually being enlarged by other people
working on it at that time.
Defendant’s Motion to Dismiss
a) Notice of Intention Fails to Comply with Court of Claims Act §
Defendant argues that the notice of intention fails to comply with Court of
§ 11(b) in that Claimant fails to identify how or where she was injured and
how the State was negligent. Defendant argues that as a result, the notice of
intention did not extend the time for filing and serving a claim, making the
claim served one year after the date of accrual untimely.
The notice of intention states in relevant substance:
The time when and the place where the incident took place are
as follows: On or about January 13, 2001 at approximately 2:00 P.M.,
at the St. Lawrence State Park, Route 37, Ogdensburg, New York.
The nature of the claim is negligence resulting in personal injury.
No further description is provided. Court of Claims Act § 11(b) provides
that a claim shall state the time when and the place where such claim arose, the
nature of the same, and the items of damage or injuries claimed to have been
sustained and the total sum claimed. A notice of intention must set forth the
same matters except that the items of damage or injuries and the sum claimed
need not be stated. The purpose of the requirement is two-fold. First, to
provide the State with “prompt notice of an occurrence and an opportunity
to investigate the facts surrounding the claim” (Sheils v State of New
York, 249 AD2d 459, 459). Secondly, it extends the time for claimants to
file a claim from 90 days to two years from the date the claim accrued
(see Court of Claims Act § 10(3); Schmidt v State of New York,
279 AD2d 62, 65-66).
The notice of intention here fails to provide adequate notice of the potential
claim. The description of the place where the claim arose lacks specificity.
St. Lawrence State Park includes a golf course, which is bisected by Route 37,
and a winter recreation center. Merely naming St. Lawrence State Park fails to
identify where Claimant was injured in the park (see Cobin v State of
New York, 234 AD2d 498 [trip and fall in the east quarter vicinity at Jones
Beach, Nassau County, insufficient]; Sega v State of New York, 246 AD2d
753 [claim arose on Route 7, West of the Village of Richmondville in the Town of
Richmondville, which is an open public roadway, insufficient]; Schneider v
State of New York, 234 AD2d 357 [accident occurred “in the picnic area
adjacent to the parking area” of a State park was insufficient because
there were a number of picnic areas]. Even more problematic is the failure to
state the nature of the claim. A blanket statement that the basis of the claim
is negligence is insufficient. How was Claimant injured? What did the State
allegedly do wrong? (see Sega, 246 AD2d at 755; cf Ferrugia v
State of New York, 237 AD2d 858, 859). What the State allegedly did wrong
cannot be reasonably inferred from the information in the notice of intention.
The fact that the State had independent information about this accident does not
serve to absolve Claimant’s obligation to provide the necessary details
(see Lepkowski v State of New York, 1 NY3d 201, 206; Grande v
State of New York, 160 Misc 2d 383, 386, accord Cobin v State of
New York, 234 AD2d 498; Cannon v State of New York, 163 Misc 2d 623).
Here, without the required information in the notice of intention, the time
frame for filing and serving a claim was not extended. As a result, the claim
filed and served almost a year after the accident was untimely.
Even if the claim was not dismissed on jurisdictional grounds, the Defendant
would be entitled to summary judgment on its defense of assumption of the risk.
As a basic rule of law, the State, as a landowner, has the duty to maintain its
property in a
reasonably safe condition under the circumstances (Basso v Miller, 40
NY2d 233, 241). However, what is reasonably safe may depend upon who has been
injured and that party’s purpose on the property (Turcotte v Fell,
68 NY2d 432, 442). Thus, where an injury is incurred on Defendant’s
property, the Defendant’s duty must be assessed in light of
Claimant’s acceptance of certain risks (id.).
There are two tenets of the defense of assumption of the risk. Primary
assumption of the
risk reflects that a voluntary participant in a sporting event or activity
consents to those risks which are inherent and arise out of the basic nature of
the sport or activity (Morgan of State of New York, 90 NY2d 471;
Turcotte, 68 NY2d at 432). This theory defines the duty owed by Defendant,
giving consideration to the knowledge, experience, and skill of the participant
(Morgan, 90 NY2d at 486). Under this theory, a landowner owes the duty
only to make the property as safe as it appears to be. This is really a theory
of no negligence, which denies the underlying cause of action (id.).
Yet, the injured participant does not assume the risks associated with
unique or dangerous conditions created over and above the usual dangers inherent
in the sport. Alternatively, pursuant to CPLR 1411, where primary assumption of
risk is not involved, assumption of risk is similar to comparative negligence,
and reduces any liability of Defendant to the extent Claimant assumed the risk
of injury by engaging in certain conduct. Under this theory, Defendant owes a
duty to Claimant, and factual questions are usually involved in assessing
Claimant’s appreciation of the danger and acquiescence in the risks.
Here, primary assumption of the risk is implicated. Accepting Claimant’s
version of the events, that the snow ramp had been in place for at least several
days prior to Claimant’s accident, and Defendant’s employees were
aware of people sledding and snowboarding on this fairway hill, it is clear that
Defendant had constructive notice of this potentially dangerous condition on the
fairway hill. Claimant argues that the State failed to keep its property in a
reasonably safe condition to prevent the risk of foreseeable harm. But, the
property was as safe as it appeared to be, there were no latent, unknown hazards
(Palozzi v Priest, 280 AD2d 986; Cook v Town of Oyster Bay, 267
AD2d 192; Swan v Town of Grand Island, 234 AD2d 934, 935; Convey v
City of Rye School Dist., 271 AD2d 154, 159; Shields v Van Kelton
Amusement Corp., 228 NY 396; Giordano v Shanty Hollow Corp., 209 AD2d
760 lv denied 85 NY2d 802; Dicruttalo v Blaise Enterprises, 211
AD2d 858, 859; Calabro v Plattekill Mt. Ski Ctr., 197 AD2d 558, 559;
but compare Repka v Arctic Cat, Inc. 20 AD3d 916 [snowmobiler did not
assume the risk of injury from a concealed defective condition of snowmobile
which increased risk of activity]; Huneau v Maple Ski Ridge, Inc., 17
AD3d 848, 849 [question of fact whether attendants at tubing hill increased the
risk of injury to tubers by failing to maintain a sufficient distance
between tubers at the top of the run and timely clearing the area of tubers
at the bottom of the run]; Sharrow v New York State Olympic Regional
Development Authority, 307 AD2d 605 [skier injured on man-made ski jump did
not assume risk of injury because, although she had skied this trail before, it
did not contain this jump, the trail was represented on several maps as
appropriate for her ability, and the location of the jump was concealed];
Josefs v State of New York, 12 Misc 3d 1183 [A] ). Claimant went to this
hill for sledding and was injured on her fourth run down the hill.
Claimant, an adult, who had sledded before, knew there was no supervision on
this hill, she knew this was not the State’s designated location for
sledding; she was aware of the existence, size, and location of the ramp, yet
she continued to sled down this hill, even after her sister mistakenly went over
the ramp earlier that day, albeit without injury. Claimant was aware of the
conditions of the hill itself and the risk of going over the ramp. She
describes, during her deposition, that the hill was “not primed,”
“...there were certain tracks that it [the sledding tube] might pick up
and picked up the track to the ramp,” (Exhibit M, page 49, lines 6-10).
The risk of becoming airborne from going off a snow ramp, as one proceeds down a
hill, on a snow tube and becoming injured due to landing wrong, is apparent.
Claimant need not have foreseen the extent of potential injury or the exact
manner in which it would occur.
Although the ramp was not an inherent danger in sledding, by continuing to sled
at this location with full knowledge of the ramp and the potential for
one’s sled to go over it, Claimant accepted this as a condition of
sledding on this hill (see Joseph v New York Racing Assn., 28 AD3d 105,
108 [professional horse exercise rider went around wet indoor track second time
horse slipped and rider was injured. Court said, “Plaintiff assumed the
risk of falling from his horse by consciously electing to proceed around the
track a second time despite his conceded awareness of danger...”
“The puddles and the wet area, while conditions not common to an indoor
track, were certainly open and obvious...”]; Sanchez v City of New
York, 25 AD3d 776; Scala v City of New York, 200 Misc 475, 478;
Maltz v Bd. of Education of New York City, 32 Misc 2d 492; “The
assumption of the risk doctrine applies not only to any facet inherent in the
sporting activity itself but also ‘to any open and obvious condition of
the place where it is carried on’”]; Clements v Skate 9H Realty
Inc., 277 AD2d 614, 615, quoting Maddox v City of New York, 66 NY2d
270, 277, quoting Diderou v Pinecrest Dunes, 34 AD2d 672; see
also Lobsenz v Rubinstein, 258 App Div 164, affd 283 NY 600;
Scala, 200 Misc at 475, 478). Despite the tragic injuries, the Court is
restrained to find, that based upon the foregoing, the Defendant’s motion
must be granted and the claim DISMISSED.
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the
Court of Claims
The Court has considered the following documents in deciding this motion:
Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney
General, in support, with exhibits attached
Memorandum of Law in Support of Defendant’s Motion
For Summary Judgment dated November 21, 2005...................3
Affirmation of Stephen Boyd, Esquire, in opposition,
with exhibits attached
Affirmation of Gary A. Alford, Esquire, in opposition,
with exhibits attached
Claimant’s Memorandum and Brief in Opposition to Defendant’s
Motion to Dismiss and for Summary Judgement dated
Reply Affirmation of Joel L. Marmelstein, Esquire, Assistant
Attorney General, in
. The argument was made that the Court also
lacked personal and subject matter jurisdiction over Defendant on the ground
that the claim was served by regular mail instead of certified mail, return
receipt requested, as required by Court of Claims Act § 11(a), however,
Defendant withdrew this portion of the motion.