SANTULLI v. THE STATE OF NEW YORK, #2007-030-001, Claim No. 108065
As an adult spectator observing his son, capable of appreciating the risk that
sleds or toboggans or snowboards might be left at large on a snow covered
hillside in Mount Loretto State Park in Staten Island, Claimant is held to have
assumed the risks of injury clearly inherent to the sport, as he stood at the
top of hillside, and then stepped onto an abandoned toboggan or snowboard and
slipped and fell, and is further required to look where he is stepping, which,
by his own testimony, he did not do. Even assuming that this open and obvious
object a dangerous condition, no actual or constructive notice to State of New
York. General Obligations Law §9-103 [recreational use statute] does not
1 1.The caption has been amended to reflect the only proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
GILBERTO, GUASTAFERRI & NUCCIO, LLPBY: PAUL V. GILBERTO, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: ELLEN MENDELSON, ASSISTANT ATTORNEY GENERAL
January 10, 2007
See also (multicaptioned
John Santulli alleges in Claim number 108065 that Defendant’s agents at
Mount Loretto State Park, Staten Island, negligently allowed a dangerous
condition to exist on a hill in the park where the public was known to engage in
sledding and snowboarding activity. He asserts that such dangerous condition,
specifically a snowboard or sled protruding from the snow at the top of the
hill where he was standing, caused him to slip, fall and suffer serious injury
on December 7, 2002 at approximately 9:00 a.m. A bifurcated trial was held on
August 29, 2006. This decision relates solely to the issue of liability.
Claimant testified at trial that he and another adult friend, Anthony
Conasenti, took Claimant’s ten (10) year old son and Mr.
Conasenti’s three (3) children to Mount Loretto State park in Staten
Island, New York, that morning with the intent of supervising the children as
they snowboarded at the park. A twenty-one (21) year resident of Staten Island,
Mr. Santulli indicated that the park was regularly used for sledding to his
knowledge, though he had never been there prior to that day. Snow had fallen one
(1) to two (2) days previously. It was stipulated that between four (4) and six
(6) inches of snow remained on the ground. After approximately 15 to 20 minutes
of watching his son and their party from the top of the hill, he took one step
to the left with his left foot, and fell on something. After falling, he
observed a snowboard sticking out of the snow. He said he had not observed it
previously, and concluded it “had to be there a few days, because . . .
[he] didn’t see it when . . . [he] was there . . . ”
observing it only after he fell.
On cross-examination, Mr. Santulli agreed that he had been standing
“pretty much” in one spot at the top of the hill until he stepped to
the left and fell.[T-20]. He said that the board was protruding from the snow
approximately 12 inches, but “. . . on a horizontal angle. After
. . . [he] stepped on what . . . [he] thought was snow, . . . [he] saw the rest
of the board.” [T-21]. All the others in his party were at the bottom of
the hill at the time. Two other fathers from a different group were at the
top, but looking elsewhere. Mr. Santulli denied that he was actually about to
try the snowboard himself, and suffered a mishap as he stepped on the board. He
also confirmed that there are no groomed ski trails, no tow ropes, lifts or
gondolas for skiers and snowboarders, no entry fees or ticket kiosks at Mount
Loretto State Park.
In deposition testimony taken in March 2005, Mr. Santulli described what he
stepped on as a toboggan sled, rather than a snowboard, and indicated that
“about twelve inches” of the toboggan was under the snow, while
another twelve inches protruded from the snow. [Exhibit C]. There was also some
slight difference in his deposition testimony concerning how many people he was
with for the outing, in that he testified then that there were the two adults
including himself, and only three (3) children during the deposition.
The deposition testimony of two (2) other witnesses, Gerard Miller and Timothy
Byrnes, both employees of the New York State Department of Environmental
Conservation with largely undefined responsibilities at the park, was also
submitted. [Exhibits 15 and 16].
Gerard Miller said he was at Mount Loretto State park “Monday through
Friday, on and off most of the time” [Exhibit 15, p-7], performing his job
function as Conservation Operation Supervisor, which, uninformatively, involved
“supervis[ing] subordinates and various properties.” [ibid.
p-6]. He indicated that he was aware that people sledded down the slope at the
park, and that it was “permissible.” Mr. Miller had no knowledge -
as phrased in question form by the Attorney for Claimant - as to who, if
anyone, would “. . . have the obligation of checking and inspecting the
bluffs to ensure that it was safe for people coming to the site.”
[ibid. p-20]. To Mr. Miller’s knowledge, the bluffs were not
inspected during sleigh riding season to determine whether the slope was
“safe” for sleigh riding. He could not say whether he had been on
the property on the day of the accident.
The following questions were posed by the Attorney for the Claimant, and
responded to accordingly by Mr. Miller:
“Q. If a dangerous condition existed on the Bluff that was not observed,
it wouldn’t be removed?
A. I don’t know what you consider dangerous.
Q. A tripping hazard like a nurse sled?(sic).
A. If it wasn’t visible and unseeable?
A. It wouldn’t be removed.” [ibid. pp-24-25].
Mr. Byrnes, a Captain with the Division of Forest Rangers for the New York
State Department of Environmental Conservation, who resided at the Mount Loretto
Lighthouse at the time of the accident, testified at his deposition that he had
worked for three (3) winters at the park, from the time he was stationed there
in October 2000 until he left in July 2003. [See Exhibit 16]. His
responsibilities as a ranger included enforcing the rules and regulations
pertaining to the State lands within the region to which he was assigned,
including Mount Loretto. When asked, Mr. Byrnes indicated that his training
involved “[b]asic police peace officer training, academy, basic training,
and also involved specifics to the job such as wilderness, fire suppression,
environmental conservation law, things of that nature.” [Ibid.
pp-6-7]. He explained that his duties encompassed all of region two, not just
Although he could not recall whether he was working at the park on the day of
the accident, he did say that generally sleigh riding was permitted on the hills
of the park during the daytime. He said that inspecting the park is a
“routine practice” and that he “patrol[led] on a routine basis
for people.” [ibid. p-16]. When asked whether anybody employed by
the State was “responsible for inspecting those hills to determine if
there are dangerous conditions that might injure sleigh riders” Mr. Byrnes
responded: “Not that I’m aware of.”[id.].
Although daily activity reports were maintained concerning daily activity on the
bluffs, it did not contain to Mr. Byrnes’ recollection - again as phrased
by Counsel for Claimant - “information indicating if conditions were
dangerous on the hills.” [ibid. p-17].
The following questions were posed by the Attorney for the Claimant, and
responded to accordingly by Mr. Byrnes:
“Q. Have you ever became aware there were objects partially immersed in
the snow, embedded on the hills?(sic).
Q. Did anybody tell you there were objects such as sleighs or toboggans that
was partially embedded in the hills, partially covered by snow embedded in the
Q. Did anybody make inspection in the hills on a periodic basis to see if
there were such conditions there?
Q. Did anybody make inspections in the hills on a periodic basis to see if
there were embedded sleighs or toboggans that were immersed by snow?
A. Not that I am aware of.” [ibid. pp-17-18].
Mr. Byrnes indicated that there had been no prior accidents at the site that he
could recall, nor could he recall ever having made an entry in any daily
activity report to the effect that there was a need for repair or that there
were objects immersed in the snow. Routine maintenance, such as garbage removal
and fencing repairs, would be performed by those working under an
“operation supervisor” or “natural resource supervisor.”
[ibid. p- 19]. Despite the witness having explained to the attorney that
the “bluffs” portion of the park was an area not covered by
vegetation on the sea side of the lighthouse, and not the hill area where
Claimant had his accident, counsel asked about inspection of the bluffs and
recreational use of the bluffs by hikers, fisherman, dog walkers, photographers
and sleigh riders, thus eliciting largely irrelevant responses.
Other than a photograph taken at some unspecified time of a grass covered slope
on which the children were apparently snowboarding on December 7, 2002, [Exhibit
12], no other evidence was submitted on Claimant’s direct case.
DISCUSSION AND CONCLUSION
Although the State has a duty to protect citizens using its recreational areas
from foreseeable risks of harm, it is not the insurer of their safety. As a
land owner, the State’s duty is to exercise “reasonable care under
the circumstances . . . ” [Basso v Miller
, 40 NY2d 233, 241
(1976)], to protect against foreseeable risks of harm. See also
Preston v State of New York
, 59 NY2d 997 (1983). The duty of care is
limited by a claimant’s reasonable expectations under the circumstances.
Thus, in an area specifically reserved for swimming, for example, the State was
found liable for the infant claimant’s injuries when he cut himself while
wading in a small lagoon on a rusty, protruding pipe that had been present for
approximately four years. Preston v State of New York
Court of Appeals said that “[u]nder the circumstances, the State had a
duty either to inspect and remove hazards from the water or to give warnings
that the waters were used at the swimmer’s risk. This does not require
the State to scrutinize every square foot of riverbed and lake bottom it owns .
. .” ibid.
at 998; cf. Schiff v State of New York
AD3d 526 (2d Dept 2006)
In order to encourage landowners to allow recreational enthusiasts to use their
property for their pursuits, without fear that the generous owner would incur
liability for injuries sustained by visitors resulting from ordinary negligence,
General Obligations Law §9-103 was enacted.
Nonetheless, when a sledder sued a municipality for spinal injuries he
sustained while sledding down a hill in what it denominated a
“supervised” public park owned by the Town of Greenfield, the Court
of Appeals held that the recreational use provision of the General Obligations
General Obligations Law §9-103] could not operate to
immunize the town from liability for Claimant’s injuries. Sena v Town
, 91 NY2d 611 (1998). The plaintiff was taking his first run
down the hill with his son when his plastic sled “struck a brownish mound
throwing him and his son into the air.” Sena v Town of Greenfield
at 613. Noting that the statute was intended to “. . .
encourage property owners to permit persons to come on their property to engage
in specified recreational activities, without fear of liability for injuries
suffered by recreationists . . .(citations omitted
)”, the Court
said that the statute’s purpose is not served where the municipality has
already “opened land for supervised recreational use.” Sena v
Town of Greenfield
, 615-616 (1998). “The statute does
apply, however, to immunize a municipality from liability for its
failure to fulfill its duty of reasonable care in the operation and maintenance
of a supervised public park and recreational facility . . . (citation
). In such a case the municipality has already assumed a duty to act
reasonably in maintaining the facility in a reasonably safe condition in view of
all the circumstances . . . (citation omitted
Court said that the hill upon which the plaintiff “. . . was injured was
part of a Town park which was supervised and held out to the public for sledding
in such a way as to make it inappropriate for the Town to enjoy immunity under
section 9-103 for injuries proximately caused by its negligent maintenance or
operation of the site.” [Ibid. at
Notably, this man-made hill had
been specifically opened up by the Town for sledding on the site of an old
gravel pit, and was part of a larger town park where other recreational
activities, such as baseball and a pavilion, were operated. The hill had been
graded to make it “less steep.” [id
.]. Regular inspections
of the hill were made by the highway superintendent, who had “become
alarmed when he observed children flying down the hill and being thrown from
their sleds and bruised.”[ Ibid.
at 617]. Indeed, he had advised
that the hill be shut down, but was overruled.
In contrast, in Perrott v City of Troy, 261 AD2d 29 (3d Dept 1999), the
municipal landowner was found to be immune under the recreational use statute,
in a wrongful death action in which decedent collided with a snowmobile while
sledding in a city park. The Court said that
“. . . while . . .[the city] permits sledding at this park, it does not
actively encourage that activity . . . (citations omitted).
Significantly, . . . [the city] did not perform special plowing or grading of
the sledding area or provide monitors or employees assigned to supervise or
regulate any sledding activities . . . (citations omitted). The record
further reveals that, at this park, there was a ‘significant difference
between the activities and services provided during the summer and those in the
winter’ . . . (citation omitted). For example, other than the ice
skating rink and the restaurant, all recreational areas including the golf
course were closed for the winter.
Thus, it cannot be said that defendant operated, maintained or supervised
sledding activities during the winter . . . (citation omitted
plaintiff did not submit any evidence . . . that defendant had prior notice of
the illegal use of snowmobiles on this portion of the golf course so as to raise
issues pertaining to defendant’s failure to warn sledders about
snowmobiles, failure to fence off the sledding area or failure to enforce the
local ordinance prohibiting the use of snowmobiles. Hence, ‘[t]he failure
to guard against a remote possibility of [an] accident is not negligence’.
. . (citation omitted
). Indeed the record supports the conclusion that
defendant did nothing which could be characterized as a ‘willful or
malicious failure to guard, or to warn against, a dangerous condition, use * * *
or activity’ (General Obligations Law §9-103[a]).”
Perrott v City of Troy
The Court notes that while “snowboarding” is not listed as an
enumerated activity under the recreational use statute, the closely analogous
activities of cross-country skiing, tobogganing and sledding are. See
General Obligations Law §9-103 (1) (a).
Indeed, had Claimant been snowboarding at the time of his accident, the Court
would readily find that injury resulting from such activity at this park - an
activity that was merely permitted passively and not specifically planned for by
the State owner - would not render the State liable under these circumstances.
Because Claimant was merely walking, as opposed to hiking - indeed the State
did not bring out any evidence from which one could conclude otherwise - the
appellate authority extant provides that because this is not an enumerated
activity under the recreational use statute, the bar to recovery does not apply,
and the State landowner may be held liable for ordinary negligence if
established. See Weese v State of New York
Claim No. 98976 (Minarik, J., June 2, 2004), affd
17 AD3d 1176 (4th Dept
2005), lv denied
5 NY3d 707 (2005); see also Gough v County of
, 167 Misc 2d 568 ( Sup Ct, Dutchess Co 1996).
Under more traditional negligence principles involving assumption of risk,
however, and based upon a factually similar claim dismissed on summary judgment
recently, the Court finds that the State should not be held liable for
Claimant’s slip, fall, and resulting injury in any event. See
Gotz v State of New York, 12 Misc 3d 1151 (A), 819 NYS2d 848, Claim No.
108891, Motion No. M-71293 (unreported opinion, Mignano, J.) (Ct Cl 1996).
Assuming that the State did not create a dangerous condition on its land, a
Claimant must show that the State landowner 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 and 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 Dist., 255 AD2d
487, 488 (2d Dept 1998); see also Turcotte v Fell, 68 NY2d 432
As an adult spectator observing his son, capable of appreciating the risk that
sleds or toboggans or snowboards might be left at large on a snow covered
hillside at any time, Claimant is held to have assumed the risks of such an
injury clearly inherent to the sport. Gotz v State of New York
. Indeed, it is common practice to wedge a sled, or other sliding
implement, into the snow between runs down a hill. Thus, a grandmother watching
her grandchildren and others sled down a hill while standing at the bottom in a
sidewalk area, assumed the risk that sleds might strike her were she
Similarly, an individual crossing the track at
a horse racing event is held to assume that horses can move in sudden and
unintended ways, and that such is an inherent risk of a sporting event involving
horses. Norkus v Scolaro
, 267 AD2d 666 (3d Dept 1999). A sidelines
spectator at a semi-professional football game where there were no protective
barriers assumed the risk of being trampled by players by standing too close to
the field. Cannavale v City of New York
, 257 AD2d 462 (1st Dept 1999). A
spectator at a hammer throwing competition held as part of a Scottish Highland
Games competition in a county park, too, assumed the risk that she could be
struck by a wayward hammer [Kreil v County of Niagara
, 8 AD3d 1001 (4th
as did a spectator at a soccer
tournament, struck by an errant soccer ball that went flying as a player warmed
up, assume the risk that he could be hit by a ball. Sutton v Eastern N.Y.
Youth Soccer Assn., Inc.
, 8 AD3d 855 (3d Dept 2004).
Here, as an initial matter, the Court is not convinced that an object of some
width and length: a sled, or toboggan or snowboard - Claimant was not
particularly decided (or credible) with regard to what exactly he stepped on -
embedded in the ground and arising to a visible height, constitutes a dangerous
condition in the first instance, given that its presence should have been open
and obvious to an alert observer. Even if dangerous, nothing in this record
establishes that the State knew or should have known of its existence, and
therefore failed to act expeditiously to remedy the condition. The deposition
testimony of both Mr. Miller and Mr. Byrnes, for example, wherein the witnesses
were asked to respond to inartfully phrased queries that elicited equally
unhelpful responses, does not establish anything in terms of notice or
constructive notice. To have a witness declare that if he did not see something
he would not remove it, is useless. Similarly, no testimony was elicited to
show exactly what the duties of these individuals were, or to what extent this
was a supervised park. Particularly with respect to Mr. Byrnes, the deposition
testimony had Mr. Byrnes talking about security concerns i.e., when he was
speaking of routine patrolling, he was clearly talking about patrolling to
determine whether citizens were on the property in contravention of regulations,
rather than patrolling for debris or dangerous objects in a maritime park. In
ordinary negligence terms, Claimant has simply not established that the State
was negligent in its operation of this park.
More significantly, Claimant as a spectator on a hill where sledding activity
was taking place, assumed the risk that such devices might be left about, and is
further required to look where he is stepping, which, by his own testimony, he
did not do. The Court cannot credit much of Claimant’s description of the
object, given that he first described it as a toboggan: a markedly different
device than a snowboard both as to length and width. Additionally, he stated
that it protruded over a foot in height and testified that he had been standing
in the area for at least 15 minutes, yet never saw it. The Court does not
believe the Claimant.
Upon review of all the evidence, including listening to the only live witness,
Claimant, testify and observing his demeanor as he did so, the Court finds that
Claimant has not established by a preponderance of the credible evidence that
defendant failed to exercise proper care in the performance of any duty owed,
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 his testimony - which, as noted, the Court
does not find to be internally consistent in any event - what is described is an
injury caused by a risk inherent in the sport of snowboarding, and a risk that a
spectator to such sport assumes by voluntarily placing himself in the position
Accordingly, Claimant has failed to establish that Defendant was negligent and
that such alleged negligence was a proximate cause of his slip, fall, and
injury. Defendant’s motion to dismiss, reserved on at the time of trial,
is hereby granted, and Claim Number 108065 is in all respects dismissed.
January 10, 2007
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. Quotations are to trial transcript unless
otherwise indicated. Here, [T-17].
. “Although a duty to inspect for
underwater hazards has been recognized where the State invites the public to
swim at a posted beach (see Preston v State of New York
, . . .
]), the State is not required ‘to scrutinize every square
foot of riverbed and lake bottom that it owns’(id. at 998 . .
and we decline to impose a duty upon the State to conduct an underwater
inspection at a canoe launching site.” Schiff v State of New York
, at 529. Thus the canoeing claimant could not recover when he was
injured when he disembarked near the shore - and the canoe launching site - and
pierced his leg on a rusty metal rod embedded in the river bed, and submerged in
three feet of water.
.Parenthetically, the Court in Schiff v
State of New York
, also declined to apply General Obligations
Law §9-103 to shield the State from liability for ordinary negligence,
given that the State exercised supervision over canoeing activities therein,
“...by requiring permits,...[maintaining] the launching site during
canoeing season, and actively encourag[ing] canoeing at the site by building
steps and [a] canoe slide to facilitate canoe portage.” Schiff v State
of New York
, at 529.
. See also Stento v State of New
, 245 AD2d 771, 772 (3d Dept 1997), lv denied
, 92 NY2d 802
(1998). General Obligations Law §9-103 operated to grant State immunity
where cross-country skier was injured while skiing on golf course in State park.
Court distinguished case [See Ferres v City of New Rochelle
NY2d 446 (1986)] where statute did not apply to bar recovery where municipality
maintained “. . . public recreational facilities [that] were operated,
maintained and supervised by a recreation supervisor with a staff of 24
employees. In cases involving government landowners, . . . we have emphasized
the importance of examining “ ‘ the role of the landowner in
relation to the public’s use of the property’ ” in determining
whether it is appropriate to apply the limited liability provision of General
Obligations Law §9-103 (Clark v State of New York
, 178 AD2d 908,
909...quoting Wilkins v State of New York
, 165 AD2d 514, 517 . . .
).” Thus in Stento
, while the State permitted cross-country skiing
on its land - one of the enumerated activities under the statute - and the park
was suitable for the purpose, the State did not maintain or supervise or
designate any trails for skiing and there were significant differences between
summer and winter activities.
. The statute provides in pertinent part that
the owner “. . . owes no duty to keep the premises safe for entry or use
by others for hunting, fishing, organized gleaning . . . , canoeing, boating,
trapping, hiking, cross-country skiing, tobogganing, sledding, speleological
activities, horseback riding, bicycle riding, hang gliding, motorized vehicle
operation for recreational purposes, snowmobile operation, cutting or gathering
of wood . . . or training of dogs, or to give warning of any hazardous condition
or use of or structure or activity on such premises to persons entering for such
purposes . . .” It further provides that merely giving permission to
others to use the property does not extend any assurances; and the landowner is
held only to gross negligence or wilful or malicious failures to warn against
. See Proposed Amendments to the
Recreational Use Statute
, Kevin G. Faley and Kenneth E. Pitcoff, Volume 236
New York Law Journal Page 4, col. 4 (September 25, 2006).
. Indeed, the Court described the risk of
being struck by a hammer as ‘perfectly obvious’, citing to
Kaufman v Hunter Mtn. Ski Bowl
, 240 AD2d 371, 372 (2d Dept 1997), lv
, 91 NY2d 805 (1998), wherein the plaintiff argued (unsuccessfully)
that as a skier he assumed only the risk of colliding with a fellow participant,
not a ski patrol member.