New York State Court of Claims

New York State Court of Claims

MARSHALL v. STATE OF NEW YORK , #2008-037-504, Claim No. 108435


Case Information

1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Andrews, Bernstein & Maranto, LLPBy: Robert J. Maranto, Jr., Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Paul VolcyAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 17, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 day.”[2] 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 path.
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 occurred.

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 [1976]), 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 [1986]). “[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 [1997]). 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 [1985]). 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 [2008]; Walter v State of New York, 185 AD2d 536 [1992]). 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 [2003]). 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 [1977]). 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 [1990]; 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 York, Ct Cl, Claim No. 99727, August 12, 2004, Scuccimarra, J. [UID No. 2004-030-022],[3] citing Auricchio v State of New York, supra; see also Morlock v Town of N. Hempstead, 12 AD3d 652 [2004]).

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 [2004]).

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.


October 17, 2008
Buffalo, New York

Judge of the Court of Claims

[2].All quotations are from trial notes or the audio recordings of the trial unless otherwise indicated.
[3].This and other unreported Court of Claims decisions may be found on the Court’s website at