On Sunday, September 4, 2005, Steven Zellman (claimant), while preparing to
play golf at Montauk Downs State Park, fell and injured his left ankle.
The fall occurred at approximately 7:30 a.m. The day was sunny and clear.
While standing in a fifteen-foot-wide paved service road, immediately adjacent
to a curb to his left and with his back to the golf course, claimant saw other
members of his golfing foursome further down the service road, directly in front
of him. Upon seeing his friends, he heard Helen, a golf course employee he knew
and whose voice he recognized, greet him and call his name from behind him.
Turning to his left, to turn around in response to Helen’s greeting,
claimant fell and injured himself.
The service road in question was frequently used by both service vehicles and
golfers walking to and from the course. The road was not off-limits to the
golfing public, and in the words of the golf course superintendent, the service
road was subject to golfer foot traffic by a “majority” of golfers
playing the course.
Although the fall occurred at a golf course, it did not involve the playing of
golf or any of the risks associated with that activity. As such, no principles
of assumption of risk pertain. The fall occurred on a service road leading to
the golf course and involves issues of premises liability alone.
"Having waived its sovereign immunity, the State is subject to the same rules
of liability as apply to private citizens" (Preston v State of New York,
59 NY2d 997, 998 ). "It is beyond dispute that landowners and business
proprietors have a duty to maintain their properties in reasonably safe
condition" (Di Ponzio v Riordan, 89 NY2d 578, 582 ; Jones-Barnes
v Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]). However,
"[w]hile the State clearly owes a duty to claimants and others entering upon its
property to maintain it in a reasonably safe condition under the circumstances,
it is not obligated to insure against every injury which may occur" (Smith v
State of New York, 260 AD2d 819, 820 [3d Dept 1999]).
The State's liability for a trip and fall is premised upon proof that it either
created the alleged dangerous condition or knew, or in the exercise of
reasonable care, should have known that a dangerous condition existed but,
nevertheless, failed to remedy the situation within a reasonable time period
(Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz
v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New
York, 188 AD2d 918, 919 [3d Dept 1992]).
Where there is insufficient proof that the defendant created or had actual
notice of the condition, liability turns on the issue of whether defendant had
constructive notice. "To constitute constructive notice, a defect must be
visible and apparent and it must exist for a sufficient length of time prior to
the accident to permit defendant's employees to discover and remedy it"
(Gordon v American Museum of Natural History, 67 NY2d 836, 837 ;
see Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d
Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept
There were two witnesses at trial, Charles Reidlinger, the Montauk Downs golf
superintendent, and the claimant. Among his other duties, Mr. Reidlinger would
inspect the golf course and its grounds daily by driving a utility cart around
the grounds, alighting when necessary for closer inspection and, if required,
for repair. Additionally, Mr. Reidlinger supervised a staff of 9 or 10
employees who would, among other routine maintenance duties, be alert to and, if
necessary, respond to or report on discrete maintenance or repair issues as and
when they arose on the course and its grounds. Mr. Reidlinger had worked at
Montauk Downs since July 2002, and he testified that the service road where
claimant fell had not been repaved during his time at the course. Moreover, at
the location of claimant’s fall, claimant’s Exhibits 1 and 2
(photographs of that location), admitted by stipulation of the parties, depict
vegetation having grown at the curb line in the area where claimant fell. By
further stipulation of the parties, none of the language written on Exhibits 1
or 2 was admitted into evidence. Only the photographic depictions (and the blue
ink arrow on Exhibit 1) were considered by the Court. All of these facts
persuade the Court that the defendant, at a minimum, had constructive notice of
the condition about which claimant complains. That conclusion, however, is not
alone determinative of liability.
In order to find defendant liable, the case ultimately reduces to this
question, both aspects of which must be answered in the affirmative: Is the
area where claimant fell a dangerous condition and did it cause claimant to
fall? The Court concludes that the claimant has failed, by a preponderance of
the credible evidence, to prove that a dangerous condition existed or that it
caused claimant to fall. The claim is therefore dismissed.
Mr. Reidlinger first visited the site of claimant’s fall within “1
or 2 days” of the incident, after being informed of it by his superior.
He testified that the orange cones shown in Exhibits 1 and 2 were in place at
the time of his visit. Claimant’s Exhibit 5, a contemporaneously prepared
“Patron Accident Report” detailing claimant’s fall, indicates
that there were “cones placed to keep patrons from area.” Moreover,
claimant later testified that photographs (Exhibits 1 and 2) were taken by his
wife the afternoon of his fall. Mr. Reidlinger expressly testified that the
scene shown by Exhibits 1 and 2 fairly and accurately depicted the site as he
found it upon his visit the day or two after claimant’s fall.
Accordingly, the Court considered the photographs to accurately and consistently
depict the site, both on the day of the fall and on the day or two thereafter.
Mr. Reidlinger testified that upon his inspection of the site he found no holes
in the area. He described the area as a “depression” and “a
little sinking area, not, you know, not rough or anything, just sunk,” and
estimated the depth of the depression to be two to three inches at its deepest.
He further estimated the depression to extend three to five feet.
Through this witness, two other exhibits, a second Patron Accident Report
(Exhibit 4) and a photograph (bottom photo, Exhibit 6 - showing a red
“X” at the place of a prior fall), were introduced to describe
another patron’s fall, 15 days earlier, in the general vicinity where
claimant fell. The Court found them to be of no probative value and accorded
them no consideration. These two exhibits demonstrate an earlier fall some 20
to 30 feet from the site of claimant’s fall, for reasons unrelated to the
alleged cause of claimant’s fall.
Claimant was his only witness. He was a frequent golfer at Montauk Downs,
having golfed there 15-20 times per season for each of the previous 15 years,
including 2005. He was therefore familiar with the service road, having
frequently, if not invariably, used it to walk to and from the golf course on
his many golf outings at Montauk Downs. At the time of his fall on September 4,
2005, he was wearing size 10½ rubber-cleated golf shoes.
Standing in the roadway, in the area shown in Exhibits 1 and 2, with his back
to the golf course (having already passed by the area once that morning to
deposit his golf bag), he saw his golfing partners in front of him in the
distance. Hearing Helen call his name from behind, he began to turn to his left
and “my foot stepped into a hole,” indicating his left foot became
“wedged into the hole.” He further described his entire left foot,
size 10½, as being “grabbed” by the “hole”. At
this point, he fell to his right, injuring his left ankle. Claimant
consistently and repeatedly referred to the cause of his fall as a
“hole” into which his left foot stepped and became wedged. Other
than describing the sensation of his foot being grabbed by the hole, claimant
did not observe or testify to what caused him to fall.
In specifically describing the dimensions of the “hole” into which
he stepped, observed while lying on the ground after falling, claimant testified
to it being “about 18 inches long,” “at least 4 or 5
inches” in depth, and “6 to 8 inches” extended from the curb.
He further testified to neither having observed the “hole” that
morning, nor on any of his prior visits to the course.
Based upon the testimony of the trial’s two witnesses and upon observing
their demeanor as they did so, based further upon the photographs introduced
into evidence (Exhibits 1 and 2, specifically) and based additionally upon
claimant’s Exhibit 5, the Court rejects the claimant’s
characterization of events as his having stepped into a “hole.”
Mr. Reidlinger expressly testified to having observed no holes in the area upon
his inspection and further testified to a “depression” in the area,
describing dimensions of 3 to 5 feet “wide,” at a depth of 2 to 3
inches. “Depressed Pavement” is identified in Exhibit 5, the Patron
Accident Report involving claimant, as being the “apparent cause of
accident.” Indeed, the claimant’s very own words and testimony, in
describing the dimensions of the “hole” into which his left foot
stepped (and became “wedged”), are more consistent with the gradual
sloping of pavement, as depicted in Exhibits 1 and 2, and which Mr. Reidlinger
more accurately described as a “depression.”
Accordingly, the Court finds as a matter of fact that claimant did not step
into a hole, a term defined at Dictionary.com as “1. an opening
through something; gap; aperture: a hole in the roof; a hole in my sock. 2. a
hollow place in a solid body or mass; a cavity: a hole in the ground. ... 11.
Golf. a. the circular opening in a green into which the ball is to be
played.” Rather, the site of the fall, most directly and accurately shown
by Exhibits 1 and 2, reveals a broad, long, gradual and shallow sloping of
pavement that, to the Court’s mind, is more accurately described as a
“swale” or a “depression” of pavement. To the extent
the claimant would claim the “hole” into which he stepped lay unseen
under the curb side vegetation, his description of its dimensions is clearly
contradicted by the scene depicted in Exhibits 1 and 2, and more closely
describes the pavement’s depression generally.
Moreover, therefore, the Court must reject claimant’s testimony that his
left foot became “wedged” into or “grabbed” by a
“hole”, as being inconsistent with its findings of fact. As such,
the exact cause of claimant’s fall is uncertain and unproved.
There is no "rule that a defect must be of a certain minimum height or depth in
order to be actionable" (Trincere v County of Suffolk, 90 NY2d 976, 977
). The existence of a dangerous or defective condition is determined by an
examination of the particular facts and circumstances of the claim, including
the width, depth, elevation and appearance of the condition, together with the
specific circumstances of the accident and injury. "Of course, in some
instances, the trivial nature of the defect may loom larger than another
element. Not every injury allegedly caused by an elevated brick or slab need be
submitted to a jury . . . [h]owever, a mechanistic disposition of a case based
exclusively on the dimension of the [alleged] defect is unacceptable"
(Trincere, 90 NY2d at 977-978; see Grover v State of New
York, 294 AD2d 690 [3d Dept 2002]; Denmark v Wal-Mart Stores, 266
AD2d 776 [3d Dept 1999]).
It is also well established that the owner of a public passageway cannot be
held liable for a trivial defect on a public walkway, unless the defect
constitutes a trap or nuisance (Trionfero v Vanderhorn, 6 AD3d 903,
903-904 [3d Dept 2004]; see Alig v Parkway Parking of N.Y., Inc.,
36 AD3d 980 [3d Dept 2007]). The state will not be held liable for a trivial
defect where the defect is "open and obvious and capable of being avoided"
(Vachon v State of New York, 286 AD2d 528, 530 [3d Dept 2001]).
Based upon the open and obvious condition of the pavement, the characteristics
of the pavement which indicate a gradual and limited sloping, the absence of any
holes and the fact the day was clear and sunny, the Court concludes the
condition of which claimant complains is trivial.
Moreover, the claimant has failed to prove what caused him to fall. "[F]ailure
to prove what actually caused a [claimant] to fall in a situation where there
could be other causes is fatal to a [claimant's] cause of action" (Dapp v
Larson, 240 AD2d 918, 919 [3d Dept 1997]). Further, "[m]ere conclusions
based upon surmise, conjecture, speculation or assertions are without probative
value" (Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699 [3d
Dept 1995]; Denny v New York State Indus. for Disabled, 291 AD2d 615 [3d
Dept 2002]). The Court declines to speculate as to the cause of claimant’s
For all of the foregoing reasons, the claimant has failed to demonstrate, by a
preponderance of the credible evidence, that he was caused to trip and fall by a
dangerous condition. The claim is dismissed.
All motions not previously decided are hereby dismissed. Let judgment be