New York State Court of Claims

New York State Court of Claims

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.

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):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 23, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 there previously.

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 an antenna.

Q. Okay, and was this television hooked up to that antenna connection on September 3rd, 2002?

A. Yes.

Q. And do you know, did you physically hook the television set up to the antenna connection?

A. I don’t know about that one. Yeah, probably.

Q. Okay.

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 set?

A. Yeah. I wouldn’t say on the roof because I don’t think it was on the roof.

Q. All right. Someplace outside?

A. Yeah.

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?

A. Yes, she did.

Q. And at that point and time the television was in her car?

A. Yup.

Q. Okay. Did you go to her car and get the television?
A. Yes, I did.

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 walk.

Q. Did you lift the television out?

A. Out of the back seat.

Q. And you carried the television to the?

A. To the toll booth.

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?

A. Yes, she did.

Q. Okay, and the board ran across the doors of the brochure rack?

A. Yes, it did.

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,


A. Um hum, yes.

Q. The board was set on top of the brochure rack doors?
A. Yes.

Q. Was any portion of the television, did any portion of the television extend over the edge of the brochure rack itself?

A. No, it did not.

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 doors”.

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 670).

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 above.

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 entered.

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
Utica, New York

Judge of the Court of Claims