New York State Court of Claims

New York State Court of Claims

NUSSBAUM v. THE STATE OF NEW YORK, #2008-040-041, Claim No. 110548


Claimant fell from bicycle while riding on a State bicycle path. Court finds Claimant failed to establish the existence of a dangerous condition on path.

Case Information

In the Matter of the Claim ofLINDA NUSSBAUM and STEVEN NUSSBAUM
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:
BORNSTEIN & EMANUEL, P.C.By: Kenneth Bornstein, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: John M. Shields, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 26, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Linda Nussbaum[1], has failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries she sustained on January 1, 2005 while riding on the Ellen Farrant bicycle path (“bike path”) that is adjacent to the Wantagh State Parkway, in Nassau County, New York. A bifurcated trial, addressing liability issues only, was held on November 27-28, 2007 at the Court of Claims in Hauppauge. Claimant called four witnesses: Claimant; Stephen Nussbaum, her husband; George J. Knips, a retired employee of the New York State Department of Transportation (“DOT”); and Lance Robson, Claimant’s expert engineer, who was called as an opinion witness. Defendant called Byron Alford, a DOT employee. Thereafter, the parties requested and were granted additional time to submit post-trial memoranda.

Claimant testified that she and her husband went riding on the bike path on the afternoon of New Year’s Day 2005. The bike path begins at Cedar Creek Park and ends at Jones Beach. It is approximately 4 3/4 miles long. The day was sunny, cool and windy. There was no snow or ice on the ground. The bike path was dry (Tr., v. I, pp. 18-20[2]). The path was being used by other bicyclists, rollerbladers and joggers. Traffic on the bike path was light, but busy for a winter day (Tr., v. I, pp. 21, 37-38). Claimant and Mr. Nussbaum both were riding mountain bikes with upright handlebars (Tr., v. I, pp. 19, 34, 63-64). They each testified that Claimant travels a little more slowly than other bicyclists (Tr., v. I, pp. 22, 63). The couple traveled from Cedar Creek Park to Jones Beach. The accident occurred about 15 minutes after they turned around and started heading north to return to Cedar Creek Park (Tr., v. I, pp. 19, 21).

Claimant testified that two bicyclists, a man and a boy, approached from behind her. The adult said, “on the left,” which Ms. Nussbaum understood to mean that they intended to pass her on the left side (Tr., v. I, pp. 22, 38-39, 46). She testified that she moved to the right. The child passed her first, without incident (Tr., v. I, pp. 22, 38, 40-41, 48). In moving over, however, the front tire of her bike “slid off” (Tr., v. I, p. 23) the right-hand edge of the bike path and “got caught where it drops off” (Tr., v. I, p. 23).

She explained that “I felt myself losing my balance, but I, I didn’t know that I had dropped off so I tried to get my balance with my arms thinking that like, if I was on grass, you wobble a little and then you get your balance. But, I couldn’t and I, I fell ” (Tr., v. I, pp. 22-23). She was unable to turn her front wheel after it dropped off the edge of the bike path (Tr., v. I, p. 23). Claimant said that she was moving slowly at the time of the accident (Tr., v. I, pp. 26-27). She testified that she did not lose her balance before her front tire hit the edge of the bike path. No one bumped into Claimant or struck her bicycle before she fell (Tr., v. I, pp. 23-24). The police were called, came, and rendered assistance to her where she fell (Tr., v. I, pp. 30, 58; Ex. 1).

Claimant testified that a number of photographic exhibits show the condition of the bike path, as it existed on the date of her accident, from her perspective as a northbound traveler moving from the bottom of the photographs toward the top (Tr., v. I, pp. 24-26, 31-32, 36-37; Exs. 6-A – 6-D, 6-H – 6-K, 6-M – 6-P, and A – C). Claimant made a circle in blue ink on Exhibit 6-I to indicate her distance from the right-hand edge of the roadway when she heard the other bicyclist say “on your left” (though the circle does not mark her exact north-south location since she was farther south, off the left-hand edge of the photograph that is Exhibit 6-I). Claimant made an “X” in blue ink on Exhibit 6-I to indicate where the front tire of her bicycle went off the edge of the bike path (Tr., v. I, pp. 26, 41-43).

Mr. Nussbaum’s testimony generally corroborated that of his wife. He was about 10 feet behind Claimant when she fell (Tr., v. I, p. 51). He did not see her lose control of the bicycle until her front wheel went off the edge of the bike path, and then she began to wobble (Tr., v. I, p. 52). He saw Claimant’s front tire go off the edge of the bike path at approximately the spot she indicated on Exhibit 6-I (Tr., v. I, p. 53). Mr. Nussbaum agreed that both the adult and the child passed him, but that he did not fall that day (Tr., v. I, p. 65).

Claimant is an experienced bicycle rider. She testified that she has been riding for 40-45 years, rode her bike two to three times a month before the accident, would travel 20 to 30 miles per trip, and had ridden the bike path for over ten years at the time of the accident, as often as once or twice a month. In the past, she has taken bicycling vacations (Tr., v. I, pp. 28, 30, 35-36). Mr. Nussbaum said that he almost always was with her when she went bike riding (Tr., v. I, p. 59).

Claimant and Mr. Nussbaum each testified that: they never saw the drop-off where she fell before the date of the accident (Tr., v. I, pp. 28, 53, 59); the bike path was always level with the adjacent ground on other occasions when they rode off the edge of the path (Tr., v. I, pp. 29, 59); and, in all their years riding bicycles, they never noticed a drop-off like that one (Tr., v. I, pp. 30, 60). Each stated that they were unable to see the drop-off before the accident occurred (Tr., v. I, pp. 30, 53). Mr. Nussbaum testified that he went back to the accident site twice to take photographs and was not able to see the drop-off until he was 10 to 15 feet away from it (Tr., v. I, pp. 53-54, 57).

The three other witnesses testified about DOT’s project to resurface the bike path, as well as the subsequent condition of the path. Mr. Robson relied upon DOT’s State Highway Design Manual (“Manual”), and the Guide for the Development of Bicycle Facilities promulgated by The American Association of State Highway and Transportation Officials (“AASHTO” and the “AASHTO Guide”) in conducting his investigation (Tr., v. I, pp. 131-133). Mr. Knips (Tr., v. I, pp. 70-71) and Mr. Alford (Tr., v. II, pp. 293-295) did not.[3]

Mr. Robson stated that the bike path lacked the recommended two-foot minimum graded area adjacent to the sides of a bicycle path (Tr., v. I, pp.147-149, 221-222; see Ex. 2). He also agreed, however, that the bike path met the recommended minimum width of ten feet and the pavement was level and smooth in the area he investigated (Tr., v. I, pp. 162-163). He further agreed that, while the AASHTO Guide provides guidance, it does not set forth strict standards (Tr., v. I, p. 194)[4]. Mr. Robson also agreed that he did not go to DOT as part of his investigation to review diagrams or plans either for the original construction of the bike path in 1975, or the resurfacing project in 1999. He did not look at the actual contract to confirm that what he reviewed was complete (Tr., v. I, p. 159). In fact, he stated, “I know that what I have is not complete” (Tr., v. I, p. 158; see Ex. 5)[5].

Mr. Robson and Mr. Alford agreed that the bike path traverses wetlands, is surrounded by water, and is built on sandy soil and that those are unstable conditions upon which to build because the soil settles (Tr., v. I, pp. 159-160, 270-271). They agreed, along with Mr. Knips (Tr., v. I, pp. 93-94, 97, 104, 156, 273-278; see Ex. 3), that additional topsoil was ordered during the repaving project to alleviate settling that occurred. A construction change order indicates that, at some locations, “the bike path was raised nearly four inches above the grade. This required additional topsoil be placed along the edge of the [bike path] for the safety of the masses” (Ex. 3) and to “ raise the existing grade to meet the edge of the new bikeway” (Ex. 5).[6] Mr. Knips characterized it as “an insignificant quantity,” however, with 112 cubic meters to be spread over eight miles of bike path (four miles on each side) (Tr., v. I, p. 93). Mr. Robson and Mr. Alford also agreed that daily work schedules[7] indicate soil erosion and sediment control work, including bike path grass shoulder restoration, was done. There is no indication, however, where along the bike path such work may have been done, or if topsoil was placed in the area depicted in Exhibit 6-I (Tr., v. I, pp. 168-172, 219, 273-275, 295). Mr. Knips testified that if, at the end of the resurfacing project, he had seen the bike path in the condition depicted in the photographic exhibits he would have said “that it needed some topsoil to dress it up” (Tr., v. I, p. 88) so that the edge of the bike path would be at the same level as the grass (Tr., v. I, pp. 87-90; see Exs. 6-I – 6-K).

Both Mr. Knips (Tr., v. I, pp. 100-101, 116) and Mr. Alford also believed that the appearance of the area could have been different in 1999 or 2000 than it was when the accident occurred (and the photographs were taken) in 2005. Mr. Alford said, “I suppose it’s possible [that conditions could have been the same]. I would not think so though simply, like I said before, with the impervious surface. Water running off, running alongside it, you’re going to get erosion. Whether that takes five years or longer, I can’t answer that” (Tr., v. II, p. 289).

Mr. Robson reviewed photographic and other exhibits, visited the accident scene, and took measurements (Tr., v. I, pp. 135-136). He measured the drop-off where Claimant fell as being a bit more than two inches high and 50 feet long (Tr., v. I, p. 138; see Exs. 6-A– 6-D, 6-M–6-P). It was Mr. Robson’s opinion, within a reasonable degree of engineering certainty, that “the bike path was defective or in an unsafe condition in [the area where Claimant fell] and the area extended for a significant distance” (Tr., v. I, p. 151). It was his further opinion that the condition existed at the conclusion of the resurfacing project, that such a drop-off is “recognized to be a hazard to bicyclists” (Tr., v. I, pp. 154-155), and that the area should have been filled with topsoil, compacted and made level with the bike path (Tr., v. I, pp. 145-146, 153-155).

Mr. Alford testified that he was not aware of any complaints or accidents that occurred at the location where Claimant fell, although he would not have been apprised about any that occurred after 2003 (Tr., v. II, pp. 287, 304). Mr. Robson agreed that the materials he reviewed did not indicate any prior complaints, or prior similar accidents, at this location (Tr., v. I, p. 176).
The Claim asserts that Defendant was negligent in its “ownership, operation, maintenance, management, control, inspection, repair, design, [and] construction” of the bike path in the area where the accident occurred (see Ex. 8, ¶ 4).

The State has a duty to maintain its facilities “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh’s Rest., 469 F2d 97, 100, cert denied 412 US 939 [1973]; see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]). That duty extends to recreational users of State lands (Spink v State of New York, 6 Misc 3d 1025[A] [Ct Cl 2005]).

The State, however, is not an insurer of the safety of those who enter upon its premises and negligence cannot be inferred solely from the occurrence of an accident (Tripoli v State of New York, 72 AD2d 823 [3d Dept 1979]). The State is “not required to provide a terrain that [is] perfectly level” (Scaduto v State of New York, 86 AD2d 682, 683 [3d Dept 1982], affd 56 NY2d 762 [1982]; see Fiscella v State of New York, Ct Cl, Claim No. 100773, December 4, 2002, Mignano, J. [UID No. 2002-029-242]). Moreover, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]; Guller v Consolidated Rail Corp., 242 AD2d 283, 284 [2d Dept 1997]; Bouloukos v Blank, 202 AD2d 539, 541 [2d Dept 1994]; Levitt v County of Suffolk, 166 AD2d 421, 423 [2d Dept 1990], lv denied 77 NY2d 834 [1991]).

“Whatever kind or degree of negligence is asserted, it is always the Claimant’s burden to show that the State was negligent in the first instance ...” (Melkun v State of New York, Ct Cl, Claim No. 106432, June 27, 2007, Scuccimarra, J. [UID No. 2007-030-031]; Carlo v State of New York, 13 Misc 3d 1222[A] [Ct Cl 2006], affd 51 AD3d 618 [2d Dept 2008]). To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) Defendant’s breach of that duty was a substantial factor in the events that caused the injury suffered by Claimant (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Donohue v Copiague Union Free School Dist., 64 AD2d 29, 32-33 [2d Dept 1978], affd 47 NY2d 440 [1979]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10, 2:70).

In order to establish a breach of that duty in a slip and fall case (including falls from bicycles), it is incumbent upon Claimant to establish that: (1) a dangerous condition existed; (2) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (3) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Ballerini v State of New York, Ct Cl, Claim No. 104913, March 30, 2005, Lack, J. [UID No. 2005-033-538]; Fair v State of New York, Ct Cl, Claim No. 103005, March 20, 2003, Ruderman, J. [UID No. 2003-010-009]).

With respect to dangerous or defective conditions, there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. Rather, it is generally a question for the trier of fact to determine whether such conditions exist based upon “facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the ‘time, place and circumstance’ of the injury” (Trincere v County of Suffolk, 90 NY2d 976, 978 [1997], quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]). Some physical defects, however, may be too trivial and slight in nature to be actionable (Lamarre v Rensselaer County Plaza Assoc., 303 AD2d 914 [3d Dept 2003]; Guerrieri v Summa, 193 AD2d 647 [2d Dept 1993]). Moreover, landowners are not obligated to warn against conditions on the land that could be readily observed by the use of one’s senses, nor will they be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property and which could be reasonably anticipated by those using it (Stanton v Town of Oyster Bay, 2 AD3d 835, 836 [2d Dept 2003], lv denied 3 NY3d 604 [2004]). Where the condition is open and obvious, “the condition is a warning in itself” (Tarricone v State of New York, 175 AD2d 308, 309 [3d Dept 1991], lv denied 78 NY2d 862 [1991] ; see Herman v State of New York, 94 AD2d 161[2d Dept 1983], affd 63 NY2d 822 [1984]).

“When an injury arises in the context of the sporting activity, the question of assumption of risk must be considered” to determine whether that doctrine precludes liability (Masline v State of New York, Ct Cl, Claim No. 104529, March 31, 2004, Hard, J. [UID No. 2004-032-502]). Two categories of assumption of risk must be distinguished. One “is akin to comparative negligence; it does not bar recovery, but diminishes recovery in the proportion to which [the culpable conduct attributable to a claimant] contributed to the injuries” sustained (Lamey v Foley, 188 AD2d 157, 163 [4th Dept 1993]; Phelan v State of New York, 11 Misc 3d 151, 166 [Ct Cl 2005]). The other, which applies to this Claim, is the “primary” assumption of risk doctrine. It asserts that when claimants voluntarily engage (as participants, spectators, or even bystanders) in sporting or recreational activities, they may be “deemed to have assumed ... certain risks occasioned by athletic or recreational activity” (Roberts v Boys & Girls Republic, Inc., 51AD3d 246 [1st Dept 2008] [citations omitted], affd __ NY3d __ [2008]; see Turcotte v Fell, 68 NY2d 432, 438-439 [1986]; Lamey v Foley, 188 AD2d 157, supra at 163; Phelan v State of New York, 11 Misc 3d 151, supra at 166).

The primary assumption of risk doctrine “is not an absolute defense but a measure of the defendant’s duty of care ” (Turcotte v Fell, 68 NY2d 432, supra at 439; see Taylor v Massapequa Intl. Little League, 261 AD2d 396, 397 [2d Dept 1999]). It can be “just a shorthand way of saying a defendant [property owner does] not owe a duty to persons engaged in certain activities” beyond that of making its premises as safe as they appear to be (Masone v State of New York, 149 Misc 2d 255, 258 [Ct Cl 1990]; see Dobert v State of New York, 8 AD3d 873, 874 [3d Dept 2004]). “[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]; see Jahier v Jahier, 50 AD3d 966, 967 [2d Dept 2008]). Hence, “[i]f the risks of the activity are fully comprehended or perfectly obvious, [claimant] has consented to them and defendant has performed its duty [citations omitted]” (Turcotte v Fell, 68 NY2d 432, supra at 439; see Paone v County of Suffolk, 251 AD2d 563, 564 [2d Dept 1998]; Colucci v Nansen Park, 226 AD2d 336 [2d Dept 1996]). Claimants’ awareness of the risk is assessed in the context of their experience and proficiency in the recreational activity in which they were engaged (Morgan v State of New York, 90 NY2d 471, supra at 484; Maddox v City of New York, 66 NY2d 270, 278 [1985]).

Finally, Defendant asserts an affirmative defense of qualified immunity from liability arising out of its highway design engineering and planning decisions. If qualified immunity is successfully asserted, Defendant can be found liable for injuries only if its studies were plainly inadequate, or there is no reasonable basis for its plans (see Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579 [1960], rearg denied 8 NY2d 934 [1960]).
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to meet her burden, and has not established by a preponderance of the credible evidence that a dangerous condition existed at the place where Claimant fell.

The Court disagrees with Mr. Robson’s opinion that the two-inch drop-off constituted an unsafe and defective condition that posed a hazard to bicyclists. The Court, likewise, cannot credit Claimant’s testimony, and that of Mr. Nussbaum, that they could not see the drop-off until they were directly on top of it, and that they had never seen a bicycle path in such a condition in all their lengthy prior experience riding bicycles.

Rather, the Court finds that the photographic exhibits depict the type of trivial and minor height differential between the surface of the bike path and that of the adjacent ground that is commonly encountered by pedestrians and bicyclists alike in the context of an outdoor paved path or walk that is exposed to the elements (see Exs. 6-A– 6-P, A-C). It was not a precipitous drop, only a bit more than two inches. The edge was uniform, rather than jagged or ragged. It extended for 50 feet. It did not constitute a hidden trap or snare. To the contrary, it was open and obvious. There was nothing unique or unusual about the condition Claimant encountered. In short, Claimant reasonably could have anticipated it. It should have been discernable by the reasonable use of her senses at a sufficient distance to apprise Claimant that she would encounter a drop of a few inches if she went off the path in that place. When he went back later on foot to take pictures, Mr. Nussbaum saw it from 10-15 feet away.

The bike path itself was flat and level where Claimant fell. Mr. Robson agreed it was wide enough for its intended purpose and was adequately paved. It was daylight and conditions were clear and dry. Traffic on the bike path was light. Claimant was riding a mountain bike with upright handlebars. She was an experienced and proficient cyclist who had ridden the bike path in question many times before. She was riding slowly. She was not bumped or jostled by other bicyclists or pedestrians using the bike path. There was plenty of room for Claimant to move over to let the other riders pass without being forced off the pavement. Mr. Nussbaum was able to do so. Yet, Claimant was not. The Court concludes it was her inability to keep her bicycle under control and on the bike path that was the sole factor in her accident.

In other cases, no liability was found with respect to similar irregularities, gaps, holes, drop-offs, etc.: (Rainey v State of New York, Ct Cl, Claim No. 85680, filed March 16, 1994, Silverman, J. [no dangerous condition where cyclist’s front tire went off paved shoulder of road into adjacent depression that was an inch or two lower than the shoulder (“It is an obvious condition and clearly visible”)]); (Barone v State of New York, Ct Cl, Claim No. 92646, filed March 23, 1998, Bell, J. [two inch drop-off from narrow paved shoulder to gravel along stretch of State highway used by pedestrians walking from parking area to hiking trail head, and where road shoulder was as narrow as two- feet wide, not unreasonable (“The accident was caused not by culpable conduct by defendant but rather by claimant’s failure to see what by the proper use of his senses, he might have seen”)]); (Ballerini v State of New York, Ct Cl, Claim No. 104913, March 30, 2005, Lack, J. [UID No. 2005-033-538], supra [no dangerous condition or defect where bicyclist was catapulted over the front of his bike when front tire became stuck in approximately one-inch gap in frame of drainage grate]); (Cotter v State of New York, Ct Cl, Claim No. 99844, April 12, 2001, Read, J. [UID No. 2001-001-511] [defect not a dangerous condition, where bicyclist hurtled over handlebars, landing on his face, when front wheel of bicycle dropped down into eighteen-inch-wide hole in broken drainage grate]); (Fair v State of New York, Ct Cl, Claim No. 103005, March 20, 2003 , Ruderman, J. [UID No. 2003-010-009], supra [no trap or nuisance where pedestrian slipped and fell because grass allegedly hid five to six inch depression in ground adjacent to edge of paved path]).

The Court also notes the record yields no evidence of prior complaints about, or accidents in, the area where Claimant fell. “A history of prior similar accidents may establish that a given location is dangerous, but it is the Claimant’s burden to establish such history and similarity” (Melkun v State of New York, Ct Cl, Claim No. 106432, June 27, 2007, Scuccimarra, J. [UID No. 2007-030-031], supra; Carlo v State of New York, 13 Misc 3d 1222[A] [Ct Cl 2006], affd ___ AD3d ___, 855 NYS2d 919 [2d Dept 2008], supra). “The State is under no affirmative obligation to prove that its operation of the ... bicycle path was proper, in the absence of any proof to the contrary. Had there been any evidence of prior accidents ... the court assumes claimants would have submitted those reports” (Dahl v. State of New York, Ct Cl, Claim No. 108480, June 30, 2006, Schweitzer, J. [UID No. 2006-036-006], affd 45 AD3d 803 [2d Dept 2007]).

Even if a dangerous condition existed, however, the Court notes that the primary assumption of risk doctrine would preclude recovery on this Claim. “Riding over different surfaces is ... an integral part of bicycling” (Dobert v State of New York, Ct Cl, Claim No. 105068, Motion No. M-66774, October 6, 2003, Hard, J. [UID No. 2003-032-105], affd 8 AD3d 873, supra). In fact, “the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces” (Goldberg v Town of Hempstead, 289 AD2d 198 [2d Dept 2001]; see Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 820 [2d Dept 2007] [bicyclist assumed the risk of being thrown over handlebars and into two-foot-wide, three-foot-deep hole on dirt trail]). Thus, Claimant “had no reason to expect a perfectly smooth roadway ... Under these circumstances, the risk of injury from falling off her bicycle was inherent in this activity and she cannot recover from defendant” (Dobert v State of New York, 8 AD3d 873, supra at 874). “Some of the [other] inherent risks of the sport of bicycling are falling due to imperfect surfaces, loss of balance, hitting curbs or other outside influence distracting the cyclist” (Spink v State of New York, 6 Misc 3d 1025[A] [Ct Cl 2005], supra). In this instance, it also appears that Claimant may have been distracted by the bicyclists passing on her left (see Soosar v State of New York, 5 Misc 3d 1008[A] [Ct Cl 2004] [oncoming bicyclist distracted rollerblader]). In any event, the condition was open and obvious. The risks of this recreational activity should have been perfectly obvious to, and fully comprehended by, an experienced and proficient bicyclist such as Claimant. Thus, she is deemed to have consented to them.

Finally, the Court notes that the record in this Claim is inadequate to support either Claimant’s contention that the State was negligent in the design and construction of the bike path, or the State’s qualified immunity affirmative defense. Mr. Robson conceded that he did not review pertinent diagrams or plans relating to the original construction or the resurfacing project. He, likewise, knew that he did not have (and the record does not include) a complete copy of the actual contract. He agreed that the AASHTO Guide, while providing useful information, does not impose strict standards.

At the same time, while “[i]t is the claimant’s burden to establish the elements of his [or her] claim, ... it is defendant’s burden to establish an immunity defense” (Melkun v State of New York, Ct Cl, Claim No. 106432, June 27, 2007, Scuccimarra, J. [UID No. 2007-030-031], supra). The design standards and plans utilized by the State in this project are not part of the record. Moreover, neither Mr. Knips nor Mr. Alford was conversant with either the Manual or the AASHTO Guide. Claimant’s failure to establish a case of negligence, however, renders irrelevant Defendant’s failure to establish the asserted qualified immunity defense (see Dahl v State of New York, 13 Misc 3d 590, 600 [Ct Cl 2006], affd 45 AD3d 803 [2d Dept 2007], supra).
Accordingly, the Court determines that Claimant failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with her Claim, and the Claim is dismissed. All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

June 26, 2008
Albany, New York

Judge of the Court of Claims

[1]. The Claim of Stephen Nussbaum is derivative in nature. Therefore, all references to Claimant herein shall be to Linda Nussbaum.
[2]. All references and quotations taken from the trial transcript are indicated by reference to volume and page number.
[3]. Mr. Alford said he relied upon DOT’s guidelines and the project plans and specifications when he determined that the project was satisfactorily completed.
[4]. Selected pages from the 1999 AASHTO Guide indicate that the design practices described therein, are recommendations that should be followed under most conditions (see Ex. F, in evidence not for the truth of the matters asserted therein, but rather as a link in the chain of data relied upon by Mr. Robson in forming his opinion).
[5].The Court notes, for example, that Exhibit 5 includes only the odd numbered pages 1-15 of what appears to be the actual agreement between the State and the project contractor. Conversely, other materials that may not be part of the contract are included in the exhibit (see footnote 7, below).
[6]. Mr. Alford testified that Exhibit 3 and the similar page from Exhibit 5 are different drafts of the same document. He stated that they are change orders on the contract, generated by DOT’s field office to justify changes in quantities of materials used. They do not set forth contract standards (Tr., v. II, pp. 297, 314-316).
[7]. Included in Exhibit 5, apparently in error. Messrs. Robson and Alford both agreed that those pages are not part of the contract itself (Tr., v. I, p. 168, v. II, p. 273).