New York State Court of Claims

New York State Court of Claims

MIDOUIN v. THE STATE OF NEW YORK, #2006-030-012, Claim No. 107423


Case Information

1 1.Claimant’s name has been corrected to how it was spelled by Claimant at trial.2 2.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :
Claimant’s name has been corrected to how it was spelled by Claimant at trial.
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
June 16, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Cidonia Midouin alleges in Claim number 107423 that Defendant’s agents at Riverbank State Park negligently failed to provide adequate supervision at the ice-skating rink, as the owner and operator of the rink and as the administrator of the instructional skating program, allowing dangerous overcrowding conditions and unruly patrons to run amok. Claimant alleges she suffered an ankle injury as a result of these dangerous conditions on February 2, 2002, when her skating class was interrupted by unruly skaters with whom she collided.
Claimant testified that her first experience with ice-skating was in a beginner’s course offered for a fee at Riverbank State Park, that had ended on January 12, 2002. [Exhibit 5]. Throughout this early instruction period she would catch practices throughout the week, practicing perhaps three (3) hours a week. By the end of the beginner’s course, she had learned to go forward, to stop, how to go from side to side, and how to fall safely, and was encouraged to enroll in another course. The next course promised that students would learn to skate backward and perform figure eights. This second - intermediate/beginner - course began “close to about the last two weeks of January.”
Claimant testified that on February 2, 2002 she was attending the third of a paid-for 12- session intermediate/beginner ice-skating class at the rink, that was taught by the same instructor who had taught the beginner class. There were approximately 15 to 20 people in the class. The start time fluctuated somewhat, she said, but class generally started between 5:00 and 5:30 PM, and ended approximately one (1) hour later.
As a matter of routine she would normally walk the six blocks to the rink from her home, present the photo identification issued by Riverbank State Park at the entrance - thus avoiding payment of the fee charged to the general public - take off her shoes, put them in a locker, and lace up her skates, and wait with the instructor for the rest of the class to arrive. Students would do exercise warmups on the ice, in an area of the rink designated for the class. This area was at one end of the rink, immediately after entering the rink, and was separated from the skating area available to the general public “[s]ometimes” by mats, and “sometimes there would be cones, but most of the time there were cones.” [T-32].
That Saturday night she walked to the rink from her home as she usually did. On direct examination, she said that the class started at 6:00 p.m. that night. She said that “four or five [cones]” marked off the class area that evening. [ibid.]. She said that “. . . they usually at times have a guard in the . . . outskirt just to make sure that . . . nobody was crossing over the area, but
. . . that day they didn’t have someone in that area.” [ibid.]. Indeed, that evening she said it was very crowded, and other patrons were coming in to the class area and “interfering with the class
. . . [T]hey had some people jumping over the cones and people were running in and out of the class area.” [T-35]. About “twenty, twenty five minutes into the class,” [T-36] the instructor went to talk to one of the guards because of the disturbance. When the instructor returned, she indicated that she might have to cut the class short, and then did so a few minutes later.
Claimant identified a diagram of the skating rink at Riverbank State Park, and used the diagram to explain her testimony. [See Exhibit 4]. The diagram shows a generally rectangular- shaped rink containing some ice-hockey markings such as the center and blue lines to the right and left of the center line; a center face-off area, and two face-off areas immediately in front of the respective goals; as well as the right and left goals. Looking at the diagram, the area designated for the class is shown as extending from the boards at the rightmost section of the rink, at the short end - or width - of the rectangle, to an area bisecting the two face-off circles in front of the goal area, running the entire width of the rink. [See Exhibit 4]. The entrance to the rink is on the long end of the rectangle within a few feet of the class area.
Claimant indicated that when the instructor stopped the class that night, they were gathered toward the center of the designated class area, close to the goal marked on the diagram on the right side of the rectangle. [id.]. “They would usually have a guard outside the door area
. . . just to make sure that we were safe, but . . . I didn’t see anybody at that time.” [T-42]. She said she had skated perhaps “[t]wo or three feet” toward the door used by students as the entrance/exit, when “. . . somebody came in. I don’t know if he lost his balance or if he . . . but he seems to be vividly running with speed and he just ram into my ankle. And I . . . twisted with him . . . and he apologized, [saying,] ‘I’m sorry, are you okay.’ And he helped me out of that rink.” [T-43]. She recalled that the instructor was “behind us” when the collision occurred. She was struck on the left side, and injured her left foot. She did not see a skate guard in the area of the boundary, nor did she see anybody at the door.
She reiterated that the individual with whom she collided “profusely apologized” and helped her outside the rink. When she was off the ice in the area where she would take her shoes off, “there was a guard there at the time.” She told the guard that she “got hit and he was taking care of somebody else at the time. He said, well, I can’t help you because I am taking care of somebody else and he gave . . . [her] an ice pack.” [T-46-47]. She saw that he was helping a child. Claimant said “I waited for him for a couple of minutes and I just couldn’t wait anymore because I was in so much pain. So . . . I left and I walked outside and took a cab and went home.” [T-47].
She said she called the rink to complain that evening, speaking with a man she assumed was a “supervisor there” but “. . . was told . . . that there’s nothing they could do to help me.” [T-49]. She did not make any written report. [T-78].
On cross-examination, Claimant indicated that the class started at “I think six” and ended at “about six forty-five” [T-55]. She indicated that there were “three or four rough skaters in the facility,” [T-57] and that she herself had not made any complaint prior to her accident, except to the instructor. She said other students in the class were complaining to the instructor as well. She said the complaints began “[t]en, fifteen minutes after the class started.” [T-64].
The following deposition testimony was read to her on cross-examination: “Question: [‘]How many people were involved as rough skaters as you describe them.[’] Answer: [‘]Three or four. Three or four at least were the ones that hit me.[’]” [T-58-60]. She did not find that there was a discrepancy between her trial testimony, in which she indicated that one person hit her, and her deposition testimony when, in this Court’s view, she appeared to be saying that three or four people hit her. Her explanation at trial appeared to be that her answer in the deposition concerned how many people overall had been crossing into the class area, not how many people hit her.
Also on cross-examination, when pressed, Claimant conceded that she was able to skate off the rink “[w]ith assistance.” [T-63]. She admitted that she saw two skate guards, but pointed out, by reference to the diagram, that they were in the center of the long part of the rectangle against the boards to the left of the entrance/exit area “having a conversation.” [T-69-70]. She said she did not see any skate guard at the entrance when she came in, did not see any skate guard at the exit when she left, and did not see any skate guards skating around the rink. She said that she did not see the two skate guards who were conversing toward the center move from that position.
She conceded that when ice-skating, there is a possibility of falling and getting injured, and she had skated at Riverbank during public sessions - not in a class setting - on previous occasions. Indeed, she generally skated before the class, but not that night.
Moises Rodriguez, the recreation complex manager for Riverbank State Park was Claimant’s only other witness. He had managed the skating rink since 1999. He said that he reviewed the incident reports for the facility and did not find any mention of an accident involving this Claimant on February 2, 2002. There were two public skating sessions on that day, one starting at noon and ending at 3:00 p.m., and another starting at 4:00 p.m. and ending at 7:00 p.m. During the two public skating sessions that day, a total of 347 entrance wristbands were issued. A different color wristband is issued for each session. Mr. Rodriguez indicated that in February 2002 the facility did not maintain a record of attendance showing what portion of those 347 entrances skated at the first or second session, but said that in his experience, the second session generally had a larger attendance.
The skating instruction program is contracted out, he explained, but the facility prepares the ice and the instructional area. The instructional area is set up with barriers in preparation for the classes. “[S]kate guards obtain black mats which are about a foot and a half in height, maybe six to eight feet in length and they’re . . . in sections and they’re placed vertically . . . from width to width of the . . . rink on the north end.” [T-106]. Mr. Rodriguez used the same diagram used by Claimant to explain his testimony, and concurred with her placement of the barrier area. He estimated that the overall ice surface available to the public is reduced by perhaps 20% by sectioning off the instructional area.
The routine practice at the rink is to “. . . have two skate guards at the doors, and . . . two or three skate guards roving on the ice, moving around circular motion with the public. So . . . at any point, whether it’s the skate guard at the door or . . . the skate guards that are roving observe any behaviors that’s inappropriate, then they would call the attention of that patron by . . . whistle blowing.” [T-108]. Mr. Rodriguez said that the nearest skate guard to the sectioned-off area would be the skate guard at the entrance/exit, and that there is not, generally, a skate guard assigned to the instructional area specifically. There is no specific rule as to how close to the dividing mats public skaters may skate. Additionally, he said that although there are three-foot- high cones on the ice, these are placed in the middle of the rink at the center face-off circle, and are used to regulate the directional flow of the skaters. Cones alone are never used to divide off the instructional area, he said.
Mr. Rodriguez said, whether classes are in session or not, “generally we like to keep per skate guard about fifty patrons” and “patrons can’t come to . . . where they’re teaching.” [T-113].
In terms of entering and exiting the rink, Mr. Rodriguez testified that the entrance marked by Claimant as the only means of entering and exiting is, rather, exclusively operated as an entrance, except for those attending instructional class who may exit the same way. Other skaters, he explained, must exit at the south-end door, rather than the north door. The skate guard at the door is “told . . . that if a student is requesting to exit at that [north, entrance-only] door that they may give that permission as a courtesy.” [T-120].
Mr. Rodriguez said that in his experience, on a busy Saturday evening in winter roughly 100 to 200 skaters would actually be on the ice during one session. He noted that on February 2, 2002, again, for both sessions, there were also 31 people attending classes that day, 265 people rented skates, and approximately 30 people attended birthday parties, although the birthday parties were only in the first session.
On cross-examination, Mr. Rodriguez described the role of the skate guard at the rink. They are “. . . to provide assistance on the ice . . .[prevent] accidents by monitoring the . . . conduct of the patrons while . . . skating.” [T-123]. He explained that if a patron is observed falling on the ice, a skate guard would go to the person, block other skaters, and give verbal instruction and physical support if necessary to help the fallen skater to get back up. Whistle codes, among other methods, were used to control unruly skaters. Mr. Rodriguez said, if a skate guard is aware of or made aware of some misconduct by a skater, the guard brings the misconduct to the skater’s attention with a warning. Sometimes a skater is given a “time out” whereby they are sent off the ice for “fifteen minutes, a half hour, and if they repeat it, they could be ejected from the ice.” [T-126]. The skate guards exercise discretion with regard to what course of action to take.
Mr. Rodriguez noted that on February 2, 2002, no patrons were ejected. He confirmed that on February 2, 2002 four skate guards were working during the applicable hours. Although Mr. Rodriguez could not recall specifically if a skate guard was positioned at the entrance near the instructional area that evening, he reiterated that the ususal positioning of the skate guards is one at the entrance, one at the exit, and one or more as roving skate guards. He also explained again that if a patron is injured on the ice, and needs assistance, the skate guard will skate over to the patron, block other patrons, help the fallen patron get up if necessary, and then inquire as to whether “. . . they [are] okay and if they’re okay, then they’re allowed to . . . continue skating.” [T-128]. If the patron indicates that “they’re not okay we would ask them whether or not they would like some additional help, first aid.” [T-128]. First aid is available in the skating rink building. There are also ice packs in the immediate area in a first aid bag kept in Mr. Rodriguez’s office, accessible only to the skate guards.
Mr. Rodriguez repeated that he was not aware of any complaints concerning unruly skaters on February 2, 2002, nor did he receive any phone calls or complaints regarding an incident on February 2, 2002. It was also noted that there was no recordkeeping method in place to determine whether patrons had been ejected unless there had been “violence.” [T-134].
Mr. Rodriguez further explained that although at the time of the incident alleged herein there was no method of keeping count of the number of patrons on the ice other than the observations of the skate guards on hand, his review of the past records assured him that they had “. . . never exceeded our ratios [of one guard per fifty skaters] and that’s one of the reasons why we don’t actually maintain a system in place for . . . doing that.” [T-131]. Additionally, a skater issued a wristband for the earlier session, must pay an additional fee and receive the different colored wristband for the second session. The purchase of the second wristband counts as an additional patron thus inflating the number assessed at the end of the day. Mr. Rodriguez also pointed out that not all of the 347 people issued wristbands for both sessions would be skating on the ice. The facility has a cafeteria, restrooms and warming areas among other things.
Mr. Rodriguez was asked if he “recognized that part” of a two-page document admitted in evidence as containing the crowd control rules in effect for the ice-skating rink. [Exhibit 2]
. Mr. Rodriguez indicated he recognized the document, and saw that there is a notation under the heading “Skating Rink Crowd Control” to the effect that among other measures, head counts of patrons are taken prior to each session. [See id.]. No testimony was offered to establish that these were the guidelines in place on February 2, 2002.
Finally, an additional three-page exhibit entitled “Riverbank State Park Skating Rink Training Materials for all Rink Staff” was not discussed by any witness and no testimony was elicited to establish that this was the manual used to train staff at the park in effect on February 2, 2002. [Exhibit 3].
No other witnesses testified, and no other evidence was submitted.
Discussion and Conclusion
Although the State has a duty as the owner and operator of a recreational facility to protect the public from foreseeable risks of harm, it is not the insurer of the safety of those who use the area for recreational purposes. Its duty is to exercise “reasonable care under the circumstances . . .” [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. With regard to skating rinks, there is an attendant duty to properly supervise the actions of skaters, however no liability will attach for sudden and abrupt movements by other skaters that could not have been avoided by the most intensive supervision. Baker v Eastman Kodak Company, 34 AD2d 886 (4th Dept 1970), affd 28 NY2d 636 (1971); Winter v City of New York, 208 AD2d 827 (2d Dept 1994); cf. Shorten v City of White Plains, 224 AD2d 515 (2d Dept 1996). The duty of care is also limited by a claimant’s reasonable expectations under the circumstances.
Moreover, assuming that the State did not create a dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836,837 (1986). With respect to constructive notice, any “. . . defect must be visible or apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citation omitted).” Gordon v American Museum of Natural History, supra, at 837. Additionally, “. . . by engaging in a sport or recreational activity, a participant 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,” [Morgan v State of New York, 90 NY2d 471, 484 (1997)], including risks due to “open and obvious defects in the construction of the playing field, [for example,] as long as the participant is aware of the risks and appreciates the nature of the risks . . . (citations omitted).” Greenburg v Peekskill City School District, 255 AD2d 487, 488 (2d Dept. 1998); see also Green v City of New York, 263 AD2d 385 (1st Dept 1999); Cross v State of New York, Claim No. 95789, Sept. 12, 2000, Patti, J., UID 2000-013-511(Ct Cl 2000). “ ‘[A]ssumption of risk is not an absolute defense but a measure of the defendant’s duty of
care . . . ’ ” Morgan v State of New York, supra, quoting, Turcotte v Fell, 68 NY2d 432.
In the context of ice-skating in the closed setting of an ice-skating rink, “. . . [c]ollisions between skaters are a common occurrence, and thus an inherent risk to ice-skating (see Vega v County of Westchester, 282 AD2d 738 . . . [2d Dept 2001]; Kleiner v Commack Roller Rink, 202 AD2d 462 . . . [2d Dept 1994].” Bleyer v Recreational Management Service Corp., 289 AD2d 519 (2d Dept 2001); see also Taynor v Skate Grove at Lake Grove, Inc., 150 AD2d 362 (2d Dept 1989); Lopez v Skate Key, Inc., 174 AD2d 534 (1st Dept 1991). As part of assessing whether adequate supervision was in place, the trier of fact may properly consider testimony by one with knowledge concerning “. . . standard staffing practices at the rink . . .” Taynor v Skate Grove at Lake Grove, Inc., supra. A claimant must show that a “. . . dangerous activity existed for a sufficient length of time as to charge the defendant with notice of such activity.” [id.]; See also Zambrana v City of New York, 262 AD2d 87 (1st Dept 1999), affd 94 NY2d 887 (2000)
; Stemmler v State of New York, 32 AD2d 861(3d Dept 1969).

A large part of the resolution of any claim rests upon the relative credibility of the witnesses and the weight of the evidence a Claimant presents to substantiate her claim. Resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept 1993), lv denied 82 NY2d 663 (1993); Newland v State of New York, 205 AD2d 1015 (3d Dept 1994).
Upon review of all the evidence, including 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 and that such alleged negligence was a proximate cause of her alleged fall and injury.
As an initial matter, Claimant herself had a sketchy recall of the events of February 2, 2002, and gave somewhat inconsistent testimony with regard to when the class started and stopped that night; whether she had observed whoever struck her before and whether she was struck by one or more skaters. The Court cannot credit much of her testimony because of these inconsistencies, whether such inconsistencies are present because of a lapse of time, or intentional evasiveness. Indeed, even if events transpired as she described them, in the crowded circumstances she described and that were acknowledged by Mr. Rodriguez, there was no showing that the State did not respond quickly enough or adequately under the circumstances. Despite Claimant’s statements during her testimony that she “did not see” a skate guard at one location or another, she was not in any position to know what the assigned skate guards were doing at any given time, and to assess whether they were responsive to the alleged problem of 3 or 4 unruly skaters in a group of 100. No other witnesses to this alleged incident, including the instructor, fellow classmates, and/or the person or persons who allegedly collided with her and then, interestingly, apologized and escorted her off the ice, were presented.
Moreover, as a relatively experienced skater at this juncture - she indicated that she had learned how to stop, go forward and sideways, and how to fall down, and had practiced at least three hours a week since beginning ice-skating lessons the previous fall - she was familiar with the risks associated with the sport, including the risk that she might collide with others and fall. Indeed, boisterous teenagers are - based upon review of the case law - endemic to the sport as well. Even under the time frame she presented concerning their alleged incursion upon the class, the State reacted reasonably by stopping the class. Indeed, the students were on their way off the ice when one or three people allegedly collided with Claimant. With regard to what the skate guards may have been doing, the fact that she did not see them, does not mean they were not there doing what they had been charged to do.
After she fell, and skated to the exit with assistance, that an employee handed her an ice pack and advised her that he could not attend to her immediately when he was clearly attending to another injured patron was reasonable behavior as well. Deciding to only wait “a few minutes” and then leaving the rink did not allow the employee an opportunity to assist her after her fall.
In contrast to Claimant’s testimony, Mr. Rodriguez testified credibly as to the mechanics by which the instructional area was segregated from the rest of the rink - clearly a safety precaution in and of itself - as well as the staffing standards. His testimony, too, belies the notion that marauding teenagers were allowed to harass other patrons without recourse. He honestly indicated that he had no record of any incident that night, and absent “violence”, was unlikely to have such a record. He also admitted that he could not say, based upon their recordkeeping, exactly how many skaters there were in the second session. The Court notes, however, that some inflation is likely built in since each wristband issued - even if sold to a person who skated in the first session - is counted as a new person.
Since no foundation was laid for showing that the training guidelines admitted in evidence were applicable on February 2, 2002, only Mr. Rodriguez’s testimony concerning staffing and skate guard responsibilities is credited. He said that at the time, beyond eyeballing the crowd, there was no system in place for actively enforcing the 50 skaters to one skate guard ratio, which had been found to be effective. Nonetheless, from his examination of old records, he found that this ratio had remained constant.
For all the reasons stated above Claimant has not established by a preponderance of the credible evidence that defendant failed to exercise proper care in the performance of its duty, that any breach of the duty was a proximate cause of Claimant’s injury, and that such injury was foreseeable under the circumstances by a person of ordinary prudence. Even crediting her testimony - which the Court does not find to be internally consistent in any event - what is described is sudden and abrupt movement by another skater, who might have merely lost his balance in accordance with her own testimony, resulting in a collision that could not have been avoided by the most intensive supervision.
Accordingly, Claimant has failed to establish that Defendant was negligent and that such alleged negligence was a proximate cause of her fall, and Claim number 107423 is in all respects dismissed.
Let judgment be entered accordingly.

June 16, 2006
White Plains, New York

Judge of the Court of Claims

[3]. All quotations refer to the trial transcript unless otherwise indicated, and are referred to at [T- ].
[4]. Counsel misidentified the document as Exhibit 3 during questioning. The three-page document marked Exhibit 3 does not contain a section on crowd control, nor does it contain the language referred to by Counsel. Exhibit 2, however, contains the applicable language.
[5]. Summary judgment dismissing complaint affirmed. In her deposition, Plaintiff said she had complained to a skating rink guard about fast-skating teenagers moments before a teenage skater collided with her, causing her to fall and injure herself. First Department said: “ . . . [N]either her complaint nor any other proof demonstrates a prevailing level of risk on defendants’ public ice rink beyond that ordinarily assumed by those undertaking the sport of skating at such a facility. Collisions between skaters, such as the one sustained here, are a common occurrence and a risk which all skaters assume . . . (citations omitted). This was an impact the guards could not have prevented, even with the most intensive supervision . . . .(citations omitted).”
[6]. Claimant was roller skating on a roller skating rink, when a group of boys gathered near the railing and acted in a “boisterous manner.” She skated away to avoid them, but was struck by one of the boys and fell suffering injury. “The State contends that the record does not show that the boys had been congregated and acting in a boisterous manner for a sufficient length of time to support the finding of the trial court that the State provided inadequate supervision . . . Assuming the general behavior of the boys could be considered so boisterous as to require the State to have admonished them, it does not appear that the giving of such admonition would . . . be tantamount to making it the insurer of patrons of the skating rink as to each other’s negligent conduct.”