New York State Court of Claims

New York State Court of Claims

REESE v. THE STATE OF NEW YORK, #2008-013-507, Claim No. 112475


In an accident at a State park, where a 271-pound concrete base (a component of a manhole installation project) fell on the legs of a 3½ year old youngster, the Defendant was not culpable as the base had been left flat on the ground a few days earlier, and as such did not constitute a dangerous condition created by the Defendant. There was no proof that the placement of these manhole components was inherently dangerous and it appears that the heavy base had been moved by unknown individuals, but not by the actions or negligence of the Defendant or its employees.

Case Information

AUSTIN REESE, an Infant, by JEFFREY REESE and TRACY REESE, as Parents and Natural Guardians
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):

Philip J. Patti
Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 21, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


A claim herein was originally filed on May 20, 2002 and given Claim No. 106084 by the Clerk of the Court. By stipulation of the parties on the record, and by a Daily Report signed by me, a new and successor claim was filed on June 28, 2006 and was given Claim No. 112475. It was further stipulated that all pleadings, papers, trial exhibits, etc., utilizing Claim No. 106084 shall be deemed to have been filed under Claim No. 112475.

This claim accrued on Sunday, May 28, 2000, at approximately 3:45 p.m. at Letchworth State Park, and more specifically at an area known as Eddy’s Shelter (Tea Table), when Claimant Austin J. Reese[1] was injured when a large circular precast concrete base, weighing some 271 pounds (see Exhibits A and H), fell on him. Since the trial of this claim was unified, I address first the issues of liability, and then, as may be appropriate, the issue of damages.

Claimant was about 3½ years old at the time of this incident, and clearly any such traumatic event for an infant of such tender years evokes a sympathetic ear from the Court. Of course, sympathy and empathy do not guide the proof or my analysis of the facts or the Defendant’s purported culpable conduct. With that in mind, I proceed to review the facts, the proof and the Defendant’s actions.

The Letchworth Park authorities, in a project to upgrade the existing system, directed their staff to install an automatic electrically powered chlorinator at a reservoir in the park. To power the chlorinator, electric power had to be run underground from the area of Eddy’s Shelter, the source of electricity, some 600 feet to the reservoir which sat at a higher elevation. In somewhat simplistic terms, this required the installation of two pull boxes, also described as manholes, one at Eddy’s Shelter, and the other at the reservoir, and the “trenching” or digging of a trench some 600 feet in length for the conduit piping that housed the wiring between the two manholes. An employee of the Defendant, Steven Cline, a regional electrician, was the job foreman in charge of this part of the project, which he estimated would take from one to two weeks, depending on what other intervening responsibilities that he, and his assistant Michael Zyck, might be called upon to perform while this project was undertaken.

The testimony established that at the end of the week ending on Friday May 19, 2000, the 3" conduit pipe had been delivered to the work site. On the following Monday, May 22, 2000, the two manholes were loaded with a backhoe onto a truck from their storage location at the Mill Yard located behind the Letchworth Administration Building and delivered, one at the reservoir, and then the second at Eddy’s Shelter. It is helpful to digress at this juncture to describe the items that comprise a manhole. Each consists of: (1) a cylindrical concrete pull box that is 30" in diameter and 36" in height, with a thickness of 3", weighing 720 pounds; (2) a circular concrete pull box base that has a 30" diameter, with a lip for the perimeter of the pull box to rest onto, and a thickness of 4" (for the lip) and 5" otherwise, weighing 271 pounds; (3) a circular cast iron frame or ring with a lip that fits over the top of the pull box, estimated to weigh some 75 to 80 pounds, and (4) the cast iron lid, that might generally be referred to as the manhole cover, and estimated to weigh about 100 pounds (Exhibit H). Given the weight of the components, a trencher with a backhoe attachment was utilized to lift the heavier concrete items onto the truck that was used for delivery, and then using the same power equipment to unload them from the truck. The cast iron frame and lid were markedly lighter and could be moved by hand by two people.

According to Mr. Cline, the general plan of operation was to place the two sets of pull box components in the immediate proximity of their intended final resting places, to first dig out and install the pull box at the reservoir, and then install the 600 feet or so of conduit pipe by trenching downhill toward Eddy’s Shelter. He estimated that digging the hole for each pull box was approximately one day’s work, and as leaving an uncovered hole in the ground created a dangerous condition, each pull box installation was to be completed in one day. Since the concrete components were so heavy that they needed to be lifted by machine, they were initially placed in proximate positions adjacent to where the holes would be dug for their installation. It was Mr. Cline’s testimony that typically such equipment and supplies were placed in the field at the beginning of such projects, to wit, to have the supplies in place at commencement.

Mr. Cline testified that he placed the four items flat on the ground at Eddy’s Shelter. This is somewhat crucial, particularly as it relates to the circular concrete base which was allegedly leaning against the pull box at an angle when 3½-year-old Austin Reese tipped or pulled it down on top of his legs. Mr. Cline’s testimony also described the functional benefit and the practical utility in having the concrete base lie flat, relating to the method of screwing bolts through two holes in the circular base, set 180° apart, to which chains with hooks would be connected to the backhoe attachment to the trencher and lifted horizontally. He also testified that the base had to be flat on the ground to effectuate this attachment, and thus, when unloading these items, they would be placed flat on the ground, and it was his specific recollection that that was done in this instance.

Nonetheless, it is also clear that the concrete base was leaning against the pull box and it then tipped over onto Austin. Given the 271-pound weight of the base, there is an incongruity between this testimony and the unfortunate events that befell Austin. Claimant posits that the Defendant was negligent in that it created the dangerous condition, either by initially leaning the concrete base against the pull box, and/or by leaving unmarked and unprotected dangerous and heavy construction materials in proximity to a shelter open to the public and near a playground just some 30 or so feet away. Furthermore, these items were delivered on Monday, May 22, and were not utilized for the project until after the Memorial Day Weekend. Austin was injured on Sunday, May 28 while attending a family outing, and the Claimant implies culpability in allowing the proximity of such attractive yet dangerous items to curious youngsters who could reasonably be expected to play in the nearby playground.

To be sure, the Defendant offers the uncontroverted testimony of Mr. Cline, who delivered the pull boxes and distinctly remembers laying all the items flat on the ground, and who testified that he was working on the chlorinator project on each and every day of the week of May 22, albeit not specifying that he was at Eddy’s Shelter on each day. However, he did specify, and testified unequivocally, that he was at Eddy’s Shelter on Friday, May 26, and that he saw the pull box components in the same position as he had delivered them on May 22. To be sure as well, Mr. Cline testified that the placement of the concrete base, the cast iron lid and the cast iron manhole cover, as shown in police photographs taken after the accident (Exhibits A and B), were not in the spots where he had left them on May 22 or observed them on May 26, although the pull box itself had not been moved. Utilizing photographic Exhibits L, M and N, in conjunction with photographic Exhibits A, B and C, he testified to the approximate placement of those items where he left them on May 22, noting that the base thereafter had been moved about one foot closer to the building and not flat on the ground, and further noting that the manhole cover was no longer sitting in the metal ring, as it had been originally.

The photographs are all authentic, and Mr. Cline’s testimony as to the placement of the items on May 22 was credible, and thus the only possible explanation is that these items were somehow moved from their original resting places by unknown individuals.

It appears from the testimony and Records of Work in evidence (Exhibit G) that work proceeded on this project for a period that ended on June 8, when the cable puller equipment that extended the electrical cable between the pull boxes was returned “back to Niagara [Falls State Park].” It also appears that Messrs. Cline and Zyck were called upon to perform numerous other duties during this period, extending the duration of work on this project. Mr. Cline’s Record of Work reflects work on this project for all or parts of every workday between May 22 and 26 and on May 30 (but not May 31 or June 1), installing the Eddy’s Shelter pull box on June 2, completing the work on June 5, 6 and 7, and then returning the cable puller on June 8. The incident in question occurred on the Sunday of Memorial Day weekend, on May 28. Mr. Cline testified that all the work he performed on this project was with the assistance of Mr. Zyck.

Mr. Zyck’s testimony mirrored that of Mr. Cline to the extent that he asserted that he fully assisted on each day of the chlorinator project. Mr. Zyck’s Record of Work (pp. 3-4 of Exhibit G) cannot be reconciled with the testimony, an issue which has given me pause as I reviewed the trial record. Specifically, the Zyck work record for the same period parallels Mr. Cline’s for the period from May 22 to May 24, and from June 1 to June 7. However, for the workdays starting May 25 and ending on May 31, there is no written record of Mr. Zyck’s time whatsoever. This obviously puts into question the pairing of Mr. Cline and Mr. Zyck on a daily basis for the entirety of this project. To be sure, Mr. Cline testified that Mr. Zyck was with him on each and every day of the chlorinator project, yet as I have noted, the Zyck work record omits work on May 25, 26, 29, 30 or 31. Cline’s assuredness that Zyck was with him on every day is belied, as noted above, by the absence of a written record of work.

There is further documentary support which tends to reflect Mr. Zyck’s absence from work on some or all of the workweek in question. After the accident on Sunday, May 28, the workers were not due back on the job until Tuesday, May 30, at which time they heard about the accident. Park Patrol Officer Judy Draper had been involved in investigating the accident, and, as part of her report, she took statements from individuals who might have had relevant knowledge or information. According to her supplemental report (p. 5 of Exhibit E), she spoke with Steve Cline on May 30, and appended his written statement of the same date (p. 6 of Exhibit E). Significantly, she notes that “Mike Zyck was on his day off” on May 30. However, there is a written statement taken by Officer K. Walker dated Wednesday, May 31, 2000, at 10:05 a.m. and signed by Michael Zyck, regarding the delivery of the pull box components to Eddy’s Shelter (p. 7, Exhibit E). Moreover, Zyck testified that he had a clear recollection when he signed the statement on May 31 that the base was lying flat on the ground the previous Friday (May 26), a date for which he had no time sheet.

It is difficult to harmonize the testimony of Cline and Zyck that they worked together on every part of this project given the absence of a written record for one week for Zyck and his “confirmed” day off in Officer Draper’s report. Yet, there is his apparent presence at the park on May 31 indicated by the signing of his statement to Officer Walker, even though there is no record that he was working that day. Query: whether he would have been paid by the State of New York for working on a day (or a week) when there was no written record of his having done so?

I engage in this extended discussion of evidentiary discrepancies in part because Claimant focuses thereon and because they are seemingly irreconcilable. But beyond that, and the implied question of credibility with which Claimant would have me enshroud the testimonies of Cline and Zyck, the issue is whether it is so pervasive as to diminish the whole of their testimony, and I find that it does not. I decline Claimant’s suggestion, made without the slightest evidentiary support, that Cline rewrote his own time sheet to match Zyck’s, as pure speculation. I do not find either of these State workers not to be credible, and perhaps it is the passage of time that dims the memory, this discrepancy does not fatally infect all aspects of Mr. Cline’s testimony with the taint of untrustworthiness. Claimant offers counsel’s opinion as to where the concrete base must have been placed to have landed as it appears in Exhibit A, but that lay opinion fails to consider that the position of the base in Exhibit A was its resting place only after it had been moved to free Claimant’s legs. Once again, this theory would invoke a speculative and unsupported determination about where the base was situated prior to falling onto Austin Reese’s legs.

I found credible Cline’s testimony when he explained how, where and when the pull box components were delivered, and find that they were laid flat on the ground. I find no negligence in having placed them in the locations where they were placed, albeit at Eddy’s Shelter near a playground, because when laid flat, as I find they were, they were not dangerous instrumentalities, to wit, the State did not create a dangerous condition. Claimant suggests that the location of the pull box components made them susceptible to be moved by Letchworth Park employees, lawn, ground or cleaning crews, or visitors, but given the weight of the component parts, particularly the 271- pound concrete base, their placement was not inherently dangerous.

So, in the end, Claimant relies almost entirely on a theory that Cline and Zyck created a dangerous condition by placing the concrete base on its side, leaning against the pull box, and relies upon the time sheet discrepancy to undermine their credibility. Actual notice is established where there is proof that the Defendant created the dangerous or defective condition (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, affd 64 NY2d 670). I have reviewed those issues above and am persuaded that the concrete base was deposited flat on the ground. In so finding, I must also find that the Defendant engaged in no culpable conduct and could not have been on actual notice of a dangerous condition, as it created none. We will never know under what circumstances that heavy concrete base came to be placed in such a position that it could have fallen on this youngster’s legs, but it can be said that it was not through the negligence of the State or any of its employees. I find that the Defendant maintained the premises in a reasonably safe condition giving consideration to the reasonably foreseeable risks (Basso v Miller, 40 NY2d 233).

This of course will bring no solace or comfort to Austin Reese or his parents, and will bring no compensation for his injuries. Perhaps the best that it can bring is a modicum of closure, allowing them to move past the trauma of that event and its sequelae. Unfortunately, in this court of law, with the requirement that such a finding be made by the preponderance of the credible evidence, I find that the Claimants have not met their burden, and the claim therefore must be, and hereby is, dismissed.

All motions not heretofore ruled upon are now denied.


June 21, 2008
Rochester, New York

Judge of the Court of Claims

  1. [1]For syntactical ease, all references to Claimant shall mean the infant Austin Reese, and not his parents, Claimants Jeffrey Reese and Tracy Reese, unless otherwise specified.