MILBACK v. STATE OF NEW YORK, #2007-042-002, Claim No. 109003
This claim is brought by the claimants for personal injuries sustained by the
claimant, Catherine A. Milback. Claimants’ allege that while staying at
the Jacques Cartier State Park in Morristown, St. Lawrence County, a television
set hit her on the top of her head when she opened a brochure cabinet door to
obtain a brochure. A trial on the issue of liability only was held and the
court found that the defendant was 100% liable for any and all damages sustained
by claimant in this action.
CATHERINE A. MILBACK AND DAVID J. MILBACK
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
NORMAN I. SIEGEL
MENTER, RUDIN & TRIVELPIECE, P.C.By: ROBERT G. BENNETT, ESQ.
HON. ANDREW M. CUOMO
Attorney General of the State
of New York
By: JOEL L. MARMELSTEIN,
ESQ.Assistant Attorney General
August 23, 2007
See also (multicaptioned
This claim alleges that the defendant was negligent in allowing a television
set to be placed above a cabinet used for the storage and distribution of
brochures at a New York State Park. It is alleged that the television set was
wrongfully and negligently placed on a slat of wood held up by part of two doors
to a cabinet holding brochures for the park and that when the claimant,
Catherine A. Milback, went to take a brochure out of the cabinet, the television
set fell from above hitting her on the head and neck and causing injuries to the
claimant. The trial of this matter has been bifurcated and the decision herein
addresses solely the issue of liability.
Claimant, Catherine A. Milback, testified that on the 3rd day of September,
2002, she and her husband and two friends went to the campgrounds at Jacques
Cartier State Park in Morristown, St. Lawrence County. Claimant testified that
when she arrived at the campgrounds, her husband, David J. Milback, went in to
register in the cabin set aside for registration and for obtaining brochures and
she stayed back to disengage the automobile that they had towed behind their
recreational vehicle. She testified that the room that he went in to register
had two doors and was a small building with a counter in it. She had been in
the building before and they had camped at this campsite before. Claimant
testified that they had reservations to stay at the campgrounds. Claimant,
Catherine Milback, testified that when she went in to get a brochure, she opened
the door to the brochure cabinet and was suddenly hit on the top of her head,
shoulders and neck by a 19" to 21" television set. The brochures were visible
in the cabinet when she walked in the door and she proceeded directly to the
brochure rack to get a brochure when the television set struck her upon the
head. It was the testimony of claimant, Catherine Milback, that she was in the
room for only a few seconds prior to the incident and that the brochure cabinet
was about three or four steps from the door. Claimant testified that she did
not see the television set before it struck her, did not hear the television set
before it struck her and did not see any signs or any warnings about the
television set being above her head. There was one woman in the cabin behind
the desk when she came in and she had no conversations with the woman prior to
the incident. Claimant, Catherine Milback, testified that she had been to the
park two or three times previously, had been in the building two or three times
previously, had seen brochures previously, but that the brochure rack that was
at the park on September 3, 2002, was not the same brochure rack that had been
Claimant, David Milback, then testified. Mr. Milback testified that he went to
Jacques Cartier State Park on September 3, 2002 and immediately went into the
registration cabin to register. He stated that he was in the registration cabin
for about five minutes and that the only people who were in the cabin with him
were Mrs. Milback, Ms. Brandy C. Bogardus, who was the State employee doing the
registration, and another woman employee. As he was at the counter he heard a
scream from his wife, saw a woman helping his wife stand up and saw a television
set on the floor next to a board. Mr. Milback testified that he had a brief
conversation with a state employee “Merrill” who was coming in the
door at the time that the television set was hitting his wife. Claimant, David
Milback, testified that he was able to hear the sound of the television set when
he was in the room, but that it was very low.
The deposition testimony of Brandy C. Bogardus, an employee of the State of New
York, and Stephen L. Carter, another employee of the State of New York, was then
offered and received in evidence. Ms. Bogardus testified as follows:
On September 3, 2002, she was employed by the State of New York and was working
at the Jacques Cartier State Park as a toll booth worker. She testified that
her responsibilities were to check people in and out of the park. Her direct
supervisor on the day of the incident was Mr. Richard Fitzsimmons. The
testimony of Ms. Bogardus is that she received no instructions whatsoever from
Mr. Fitzsimmons concerning her job responsibilities or limitations. Ms.
Bogardus testified at pages 9 and 10 of her deposition that she was permitted to
watch television at the Jacques Cartier State Park while working and she stated
at page 10 “I believe so. The T.V. was there all summer before I came
there. A different T.V. was there before.” The testimony in the
deposition further revealed that the person who worked the job that Ms. Bogardus
worked prior to September 3, 2002 also had a television set; that the television
set was also set on the top of the brochure rack; that that television set,
however, was smaller than the television set Ms. Bogardus brought to the job;
that the previous employee took her television set with her when she left her
summer employment; and that the television set had been connected to an antenna.
The testimony further revealed that after Ms. Bogardus brought the television
set into the cabin, a maintenance employee, Stephen Carter, came in and opened
the doors to the brochure cabinet, placed a wooden board that was behind the
desk on top of the brochure cabinet, opened the doors to the brochure cabinet,
placed the television set on top of the brochure cabinet and the television set
extended an inch or two out over the top of the cabinet. Ms. Bogardus also
testified that she saw the television set fall from above and hit the claimant,
Catherine Milback, on the head. Ms. Bogardus further testified that a gentleman
known as “Bob” who was a security/maintenance person at the park
observed the television set on top of the brochure rack before the accident.
“Bob” told Ms. Bogardus that the television reception was coming in
scratchy. In addition, it was testified to by Ms. Bogardus that
“Meryl” also commented on the poor quality of the picture. During
the State’s examination of Ms. Bogardus the following questions were asked
and the following answers given:
Q. Ms. Bogardus, when you indicated that there was no cable hookup with
respect to this television but there was an antenna used in reception, were you
referring to the T. V.’s antenna?
A. No. It was already in the building. It was, I think it was an antenna
that was up on the roof or a cable from, cable from the thing, but I know it was
Q. Okay, and was this television hooked up to that antenna connection on
September 3rd, 2002?
Q. And do you know, did you physically hook the television set up to the
A. I don’t know about that one. Yeah, probably.
A. Probably, yeah, I think.
Q. Where, if you know, did this antenna wire connection enter the inside of
the toll booth building?
A. It could have been inside but I know like there was a wire from like the
window over towards the display case so it could have been like up in like
towards the top of the window or it was outside the window. So it could have
been, I don’t know, I just don’t remember seeing it. I just
remember it was there.
Q. Without trying to put words in your mouth but trying to understand your
question, let me ask it this way: Is it your recollection that the wire came
from the antenna on the roof through a window an [sic] then to the television
A. Yeah. I wouldn’t say on the roof because I don’t think it was
on the roof.
Q. All right. Someplace outside?
Q. Do you know where the antenna was on the building?
A. No, I don’t know where.
The deposition testimony of Mr. Stephen L. Carter revealed that Mr. Carter was
an employee of the State of New York on the 3rd day of September, 2002, and
worked at the Jacques Cartier State Park. Mr. Carter’s testimony revealed
that Brandy Bogardus had requested that he remove the television set from the
back of her vehicle and that he place it on top of the brochure rack. The most
telling portion of Mr. Carter’s deposition is contained on pages 10, 11,
12 and 13 of his deposition, which are set forth as follows:
Q. All right. Let me back you up a little bit. Brandy asked you to put the
television on top of the brochure rack?
Q. And at that point and time the television was in her car?
Q. Okay. Did you go to her car and get the television?
Q. Okay. Where was her car located?
A. I don’t know. Probably 30, 40 feet away. There is an adjacent
parking spot next to the booth for individuals that don’t like to
Q. Did you lift the television out?
Q. And you carried the television to the?
Q. How much did the television weigh?
A. I don’t know. It was a 19 inch color T. V. set. I don’t
know what they weigh.
Q. What did you do when you got to the toll booth?
A. I put the T. V. set on top of the brochure cabinet. It would not stay up
there. She then went and got a board and placed it underneath the T. V. set on
the front side of the screen and opened the brochure cabinet doors part way and
the T. V. set stayed up there.
Q. So, she placed the board on top?
Q. Okay, and the board ran across the doors of the brochure rack?
Q. Was the television sitting on top of the brochure rack doors itself or
only -- let me ask a different question.
Was the television, the television was set on top of the board,
Q. The board was set on top of the brochure rack doors?
Q. Was any portion of the television, did any portion of the television
extend over the edge of the brochure rack itself?
Q. Okay. Did you make any determination at that time whether if the brochure
rack doors were opened up whether or not the television would have fallen off
the brochure rack?
A. I did make a comment to her about that particular situation. I just said
to her offhandedly “you should make sure no one opens up those
Q. Okay, and what did she say in return?
A. She said “okay. No problem Carter”, which is my last name,
and said “thanks a lot” and I left the toll booth.
“As a landowner, the State has a duty to use reasonable care under the
circumstances in maintaining its property in a safe condition”
(Colangione v State of New York, 187 AD2d 844, 845 [3d Dept 1992],
quoting Basso v Miller, 40 NY2d 233, 241). This duty obligates the
State, as owner and operator of the park, to protect the public from foreseeable
risks of harm (Basso v Miller, 40 NY2d 233).
Furthermore, where, as here, “the landowner creates the dangerous
condition that causes the accident, the landowner is deemed to have actual
notice of such condition” (Phelan v State of New York, Claim No.
105128, June 29, 2005, UID No. 2005-032-503, Hard, J., citing Lewis v
Metropolitan Transp. Auth., 99 AD2d 246, 249, affd 64 NY2d
It is glaringly obvious to the court that the State of New York, through its
employee, Brandy Bogardus, created a dangerous condition when she had Mr. Carter
place a 19" or 20" color television set on a board supported by the top and/or
doors of a cabinet which was used to store brochures for visitors to the Jacques
Cartier State Park. The cabinet obviously was designed for visitors to obtain
brochures for their stay at the park and there was absolutely nothing that the
claimant, Catherine Milback, did which was inappropriate or in any way
negligent. It is also obvious to the court that a television set had been
placed on the cabinet prior to Ms. Bogardus being there, and the conclusion of
the court is reached as a result of the testimony of Ms. Bogardus that an
antenna existed either on the roof or on the side of the building which she
connected to her television set by way of a wire which ran from somewhere
outside the building to the top of the brochure cabinet. There was also
testimony from Ms. Bogardus that her supervisor, Mr. Fitzsimmons, and other park
employees, saw the television set and knew of the television set’s
existence or of the prior use of the brochure cabinet as a stand for a
television set. There can be no reasonable or logical explanation why the State
of New York would allow a television set to be placed upon a board supported by
the top of the brochure cabinet and the doors of the brochure cabinet and place
visitors to the park in jeopardy of having a television set fall from
The court finds that the State of New York is 100% liable for any and all
damages sustained by the claimants in this action and orders that a
interlocutory judgment of 100% liability against the State of New York be
The court further sets December 6, 2007 and December 7, 2007 as the trial dates
for a trial on the issue of damages.
Let interlocutory judgment be entered accordingly.
August 23, 2007
HON. NORMAN I. SIEGEL
Judge of the Court of Claims