New York State Court of Claims

New York State Court of Claims

BLISS v. THE STATE OF NEW YORK, #2006-033-561, Claim No. 110064


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):

James J. Lack
Claimant’s attorney:
Ahern & AhernBy: Dennis P. Ahern, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for damages by Donald O. Bliss (hereinafter “claimant”) based upon the alleged negligence of the defendant. The bifurcated trial of this claim was held on May 31, 2006 and June 1, 2006, on the issue of liability.
On August 17, 2004, claimant went to Sunken Meadow State Park, Kings Park, New York.
At approximately 3:00 p.m., claimant arrived at the park to walk on the boardwalk for exercise. Claimant stated that on several occasions he had reported bicyclists on the boardwalk when they were not supposed to be there.
Claimant admitted that he made no complaint on this particular day. While walking on the boardwalk, claimant was struck by a small girl riding a bicycle, causing him to fall.
Eric Broecker, the park superintendent, testified that bicycles were not allowed on the boardwalk after 9 a.m. for safety reasons. The witness testified that a sign prohibiting bicycles was posted at all access points to the boardwalk. In addition to the signs, the park had employees (known as “lawn rangers”) whose job was, in part, to patrol the boardwalk. The lawn rangers would enforce the bicycle ban, if they saw the bicycle in their patrol. On the date of the incident, two of the lawn rangers were working. There was no evidence presented that the lawn rangers were not performing their jobs on the incident date.
Claimant called an engineer to testify as an expert in boardwalk safety. The expert opined that claimant’s accident was due to the failure of the lawn rangers to prevent bicycles on the boardwalk. However, on cross-examination, the witness said that two rangers patrolling the boardwalk would be adequate to enforce the no bicycle rule.
In the ownership of property, the State of New York serves two functions. The first role casts the State in a proprietary function and the other role is that of a governmental function (Miller v State of New York, 62 NY2d 506). The functions are not mutually exclusive. Instead, the functions are opposite ends of a continuum (see Miller).
A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category. Miller at 511 - 512.

In regard to its proprietary function, "the State ‘ “must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” ‘ (Basso v Miller, 40 NY2d 233, 241, quoting Smith v Arbaugh’s Rest., 469 F2d 97, 100)" (Preston v State of New York, 59 NY2d 997, 998). The State’s proprietary function subjects it to the same rules of liability as apply to a private citizen.
On the other end of the continuum, is the State’s governmental function. The State "remains immune from negligence claims arising out of governmental functions such as police protection unless a special relationship with a person creates a specific duty to protect, and that person relies on performance of that duty" (Price v New York City Hous. Auth., 92 NY2d 553, 557 - 558). In the case at bar, defendant’s function falls into the proprietary category.
The State is not the insurer of those who use its parks. Claimant must demonstrate a breach of a duty owed by defendant. The premises must be as safe as they appear to be (Auricchio v State of New York, [Ct Cl Claim No. 97133, Motion No. 61165]).
Directly on point with this matter is the case of Solomon v City of New York, 66 NY2d 1026.
In that case, the infant plaintiff was injured by a bicycle at Manhattan Beach Park. The City posted signs in numerous locations prohibiting bicycle riding. In addition, several police officers and park employees were also charged with the duty of keeping this area bicycle free. The court stated:
In its proprietary capacity, "a municipality is under a duty to maintain its park and playground facilities in a reasonably safe condition" (Nicholson v Board of Educ., 36 NY2d 798, 799). This duty "includes not only physical care of the property but also prevention of ultrahazardous and criminal activity of which it has knowledge" (Benjamin v City of New York, 64 NY2d 44, 46). Bicycle riding on a busy promenade does not rise to the level of "ultrahazardous and criminal" (see, Zarillo v State of New York, 8 AD2d 651, affd 7 NY2d 943; cf. Benjamin v City of New York, 64 NY2d 44, supra; Caldwell v Village of Is. Park, 304 NY 268; Nicholson v Board of Educ., 36 NY2d 798, supra). Thus, as a matter of law, the city did not breach its duty to plaintiffs.

at pp. 1027 - 1028.
In the instant case, defendant did not breach any duty owed to claimant. The bicycle riding of a young girl on the boardwalk does not rise to the level of an ultrahazardous or criminal activity. In addition, defendant promulgated rules for the use and prohibition of bicycles on the boardwalk. However, the enforcement of these rules did not create a special relationship with claimant (Solomon at 1028).
Accordingly, the Court finds in favor of defendant and dismisses the claim. The Clerk of the Court is directed to close the file. All motions not specifically ruled upon are denied.
Let judgment be entered accordingly.

September 29, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].Bicycling on the boardwalk is prohibited after 9 a.m. each day.