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
In the Matter of the Claim
ofLINDA NUSSBAUM and STEVEN NUSSBAUM
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CHRISTOPHER J. McCARTHY
BORNSTEIN & EMANUEL, P.C.By: Kenneth Bornstein, Esq.
ANDREW M. CUOMO
Attorney General of the State of
New YorkBy: John M. Shields, Esq., AAG
June 26, 2008
See also (multicaptioned
Claimant, Linda Nussbaum
, 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
). 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.
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,
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)
. 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;
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.
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
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
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 , quoting Smith v
Arbaugh’s Rest., 469 F2d 97, 100, cert denied 412 US 939
; see Miller v State of New York, 62 NY2d 506, 513 ;
Preston v State of New York, 59 NY2d 997, 998 ). 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 ; 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 ; 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 ).
“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 ; Donohue v Copiague Union Free School
Dist., 64 AD2d 29, 32-33 [2d Dept 1978], affd 47 NY2d 440 ;
Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10,
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 ; 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 , quoting Caldwell v Village of Is. Park, 304 NY
268, 274 ). 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 ). 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  ; see Herman v State of New
York, 94 AD2d 161[2d Dept 1983], affd 63 NY2d 822 ).
“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 __ ; see Turcotte v
Fell, 68 NY2d 432, 438-439 ; 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
; 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 ).
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 ; Weiss v Fote, 7 NY2d 579 , rearg
denied 8 NY2d 934 ).
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
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
HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims
. The Claim of Stephen Nussbaum is derivative
in nature. Therefore, all references to Claimant herein shall be to Linda
. All references and quotations taken from
the trial transcript are indicated by reference to volume and page number.
. Mr. Alford said he relied upon DOT’s
guidelines and the project plans and specifications when he determined that the
project was satisfactorily completed.
. Selected pages from the 1999 AASHTO Guide
indicate that the design practices described therein, are recommendations that
be followed under most conditions (see
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).
.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
footnote 7, below).
. 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).
. 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).