New York State Court of Claims

New York State Court of Claims

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 apply

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
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The caption has been amended to reflect the only proper defendant.
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Signature date:
January 10, 2007
White Plains

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See also (multicaptioned case)


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 . . . ” [2] 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?
Q. Correct.
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 Mount Loretto.

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).

A. No.
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 hills?
A. No.
Q. Did anybody make inspection in the hills on a periodic basis to see if there were such conditions there?

A. What?
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.
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, supra. The 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, 31 AD3d 526 (2d Dept 2006)[3].

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 Law [See General Obligations Law §9-103] could not operate to immunize the town from liability for Claimant’s injuries. Sena v Town of Greenfield, 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, supra 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, supra, 615-616 (1998). “The statute does not 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 omitted). 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).” [Id.]. The 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 616].[4] 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). Notably, 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[2][a]).” Perrott v City of Troy, supra at 31-32. [5]

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).[6] 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, UID#2004-031-060, 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 Dutchess, 167 Misc 2d 568 ( Sup Ct, Dutchess Co 1996). [7]
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 (1986).

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, supra. 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 inattentive. [Id.]. 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 Dept 2004)],[8] 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 of observer.

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
White Plains, New York
Judge of the Court of Claims

[2]. Quotations are to trial transcript unless otherwise indicated. Here, [T-17].
[3]. “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, . . . [supra]), 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, supra, 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.
[4].Parenthetically, the Court in Schiff v State of New York, supra, 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, “ 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, supra, at 529.
[5]. See also Stento v State of New York, 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, 68 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.
[6]. 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 dangerous conditions.
[7]. 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).
[8]. 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 denied, 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.