Doug Marshall, the Claimant herein, alleges in Claim Number 108435 that he
suffered personal injuries due to Defendant’s negligence in creating a
dangerous condition on the Town of Amherst Recreation Path (“bike
path”) located on the campus of the State University of New York at
Buffalo (SUNYAB) in Erie County, New York. Specifically, Claimant alleges that
on October 22, 2001, at approximately 2:37 p.m., he fell and was injured while
rollerblading after colliding with a motor vehicle being operated on the bike
path by agents and/or employees of Defendant. The trial was bifurcated and this
decision addresses liability issues only. Claimant called seven witnesses to
testify: Claimant; Gary Rice (Rice), Solomon Ohayon (Ohayon), Claudia Jensen
(Jensen) and David Frank (Frank), employees of SUNYAB; and Joseph Ruggiero
(Ruggiero) and James W. McGrath (McGrath), retired employees of SUNYAB.
Claimant, a 51-year-old sales representative at the time of the accident,
testified that for two years he had been rollerblading on the bike path
traversing the same round-trip route from Maple and North Forest Roads to
Skinnerville Road. Indeed, on the day of the accident he traveled westerly from
Maple and North Forest Roads to Skinnerville Road and was returning in an
easterly direction when the accident occurred at or near the Millersport Highway
overpass. Claimant described the weather conditions as a “nice fall
The bike path was dry and was
being used by other bicyclists, rollerbladers, joggers and walkers. Claimant was
dressed in a T-shirt and nylon workout pants but was not wearing a helmet or
other protective devices.
Claimant testified that as he approached the overpass he encountered an all
terrain vehicle (ATV) followed by a pickup truck (truck) both traveling in a
westerly direction on the bike path. He moved to the left to avoid the ATV and
passed it without incident. However, he was unable to avoid colliding with the
truck which was directly behind the ATV. He stated that his rollerblades were
not equipped with a stopping mechanism and there was not sufficient time to
maneuver around the truck.
Claimant indicated that a number of the photographic exhibits show the layout
of the bike path, as it existed on the date of his accident, from his
prospective as an eastbound traveler, and he made a circle on Exhibit 5A to mark
the location of the truck when he first observed it. Claimant stated that he was
very familiar with the bike path having walked it for many years prior to
engaging in rollerblading and had never before seen a motor vehicle traveling on
The other witnesses described the events which caused the ATV and truck to be
operated on the bike path on October 22, 2001. Ohayon, a plumber/steamfitter
with over twenty-six years of service at SUNYAB, testified that he drove the
ATV, with Jensen as a passenger, over a portion of the bike path to access a
radio tower for regularly scheduled maintenance. During this operation the ATV
stalled and he was unable to restart it so he called back to the garage for
assistance. Ruggiero, a general mechanic with many years of service at SUNYAB,
responded to the call by driving the truck, with Rice as a passenger, over the
bike path to the disabled ATV. Both vehicles returned to the campus following
the same route which involved traveling for some distance on the bike path.
Although the witnesses offered slightly different accounts of these events, the
uncontradicted testimony was that the vehicles were proceeding westerly along
the bike path at a slow rate of speed with the ATV several feet in front of the
truck. The four directional signals and a revolving dome light on the truck were
flashing. At times it was necessary for the vehicles to stop or move to the
right or left to allow bike path users to pass safely. Ruggiero and Ohayon both
testified that they saw Claimant approaching the vehicles from the west at a
“high rate of speed” and in a split-second he collided with the
truck which at the time was stopped on the side of the bike path.
Frank, a retired SUNYAB police lieutenant, testified that SUNYAB maintenance
and security vehicles were permitted to travel on the portion of the bike path
located on the campus which includes the area where this accident
The claim asserts that Defendant was negligent in its use and operation of the
truck and in operating a motor vehicle in an area designated for pedestrians
only. Although the State has a duty as the owner or user of a recreational area
to protect the public from foreseeable risks of harm, it is not the insurer of
the safety of those who use the area for sporting and recreational activities.
Its duty is to exercise “reasonable care under the circumstances . .
.” (Basso v Miller, 40 NY2d 233, 241 ), to protect against
foreseeable risks of harm. The duty of care is limited by a claimant’s
reasonable expectations under the circumstances. The Defendant’s
obligation is to make the pathway - in this case - as safe as it appears to be
so that the Claimant can fully comprehend and perceive the risk he is assuming
by using the recreational path (see Turcotte v Fell, 68 NY2d 432, 439
). “[B]y 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 ). It is not
necessary to the doctrine’s applicability that the injured party may have
foreseen the exact manner in which the injury occurred “so long as he or
she is aware of the potential for injury of the mechanism from which the injury
results” (Maddox v City of New York, 66 NY2d 270, 278 ). The
awareness of the risk is “to be assessed against the background of the
skill and experience of the particular plaintiff” (id. at 278;
see Morgan v State of New York, supra at 486).
The State also has a duty to warn the public of any latent dangers that are not
readily apparent (see Cohen v State of New York, 50 AD3d 1234 ;
Walter v State of New York, 185 AD2d 536 ). There is no duty,
however, to warn against a condition which is open and obvious and readily
observable by the reasonable use of one’s senses (see Martinez v City
of New York, 307 AD2d 989 ). Moreover, “[n]egligence cannot be
presumed from the mere happening of an accident. It is incumbent upon the part
of the claimant to show affirmatively by competent evidence that the injury
complained of was caused by reason of some breach of duty by the State.
Negligence must be proven” (Mochen v State of New York, 57 AD2d
719, 720 ). Claimant had the duty to use reasonable care to observe his
surroundings, to see what there was to be seen and to avoid accidents (Masone
v State of New York, 149 Misc 2d 255 ; see also Martinez v City of
New York, supra at 991).
In Auricchio v State of New York
, Ct Cl, Claim No. 97133, Motion No.
M-61165, filed October 16, 2000, Silverman, J. (unreported), the Court of Claims
dismissed a claim where the claimant was injured while rollerblading on an oval
running track at a school, stating that “[r]ollerblading is a form of
exercise which foresees that an individual may fall due to their own loss of
balance, a defect in the skating surface or an outside influence causing them to
lose their balance . . . [t]herefore, claimant assumed the risk of skating on
the track and it is deemed that she consented to the injury causing event
because it was apparent or readily foreseeable.” (Soosar v State of New
, Ct Cl, Claim No. 99727, August 12, 2004, Scuccimarra, J. [UID No.
citing Auricchio v State of
; see also Morlock v Town of N. Hempstead
AD3d 652 ).
Upon review of all the trial evidence, including listening to the witnesses
testify and observing their demeanor as they did so, the Court finds that
Claimant has failed to establish that Defendant was negligent either in the use
or operation of the truck or in operating a motor vehicle on the bike path.
Moreover, Claimant failed to establish that there were “unreasonably
increased risks” in this case, or that Defendant acted recklessly,
intentionally, or concealed the risks, such that the doctrine of assumption of
risk would not apply (see Morgan v State of New York, supra at 485). The
presence of motor vehicles on the bike path on a clear, dry day in an area that
is level as depicted in the photographs of the accident site was an open and
obvious condition, readily observable by the reasonable use of one’s
senses. The risks of this recreational activity should have been perfectly
obvious to, and fully comprehended by, an experienced rollerblader such as
Claimant. Thus, he is deemed to have consented to them. The sum of the evidence
leads to the conclusion that Claimant’s fall was due to his own
inattentiveness and lack of due care under the circumstances (see Dobert v
State of New York, 8 AD3d 873 ).
Accordingly, the Court determines that Claimant failed to establish by a
preponderance of the credible evidence any liability on the part of Defendant
and, therefore, Claim Number 108435 is hereby dismissed in its entirety. Any
motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.