MARINO v. THE STATE OF NEW YORK, #2008-041-507, Claim No. 111186
Claim alleging that State’s negligence caused claimant to fall from 200
foot waterfall in forever wild preserve is dismissed where the danger presented
by the natural geographic phenomena constituting the waterfall was open and
obvious and State thus owed no duty to warn of such danger nor any duty to erect
barriers or platforms to prevent the public from accessing the edge of the
1 1.Caption amended sua sponte to reflect the only properly named
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANK P. MILANO
ELOVICH & ADELL, ESQS.By: Glenn L. Sabele, Esq.
HON. ANDREW M. CUOMO
New York State Attorney
GeneralBy: Belinda Wagner, Esq., Assistant Attorney General
August 1, 2008
See also (multicaptioned
On October 14, 2004, Clarissa Marino (claimant) suffered a terrible and tragic
fall, which she miraculously survived, over Kaaterskill Falls, located on a
portion of defendant’s public lands within the Catskill Park’s
Catskill Forest Preserve.
Kaaterskill Falls (Falls), a naturally developed geologic formation widely
known for its rugged beauty, and which draws visitors from around the state, if
not beyond, is a “double” waterfall which descends nearly 200
feet. It is located in the “forever wild” area known as the
Catskill Forest Preserve and is openly accessible for the unsupervised use of
The Falls may be approached by foot in two primary ways. From a trail leading
to the base of the Falls, visitors may approach and view the Falls from below,
enjoying a full frontal view of the cascading water. Second, a maintained trail
(commonly referred to as the Laurel House trail) leads to the top of the Falls,
bringing visitors to a stream which feeds the Falls from above. The Laurel House
trail does not afford visitors a view of the Falls as the visitors ascend, but
the sounds of the Falls are clearly heard as the trail is followed to the peak
of the Falls. Visitors having ascended the trail are able to view the
water going over the Falls from behind and above the waterfall, observing
the water disappear over a cliff from behind. Excellent depictions of the view
from behind and above the Falls are found in photographs admitted as
claimant’s Exhibit 1 and, particularly, defendant’s Exhibit F
(further, the top photographs in defendant’s Exhibits EE and FF provide an
excellent view of this position). That one is standing above a waterfall with a
substantial drop is apparent from these photographs, as the view reveals deep
gorges beyond the waterfall’s cliff. The close proximity of a waterfall is
further signaled by the sound of the cascading water disappearing over the
Two primary fact witnesses provided the most germane, and dispositive,
testimony. Claimant testified, as did her then-friend (now estranged),
Itzamargrid Ramos. Ms. Ramos was present when claimant went over the Falls.
Both witnesses testified that it was Ms. Ramos’s intention to
surprise claimant on October 14, 2004, claimant’s 20th birthday, by taking
her on a surprise picnic to Kaaterskill Falls. Ms. Ramos had been to the Falls
four or five times previously, but claimant had not been there before.
There were some discrepancies between the testimony of the two former friends.
Ms. Ramos stated she blindfolded the claimant for the entire two-hour car ride
to the Falls (to maintain the surprise location), that claimant remained
blindfolded as they walked most of the Laurel House trail (claimant being
guided by Ms. Ramos), and that claimant remained blindfolded until shortly
before the visitors reached the end of the trail prior to reaching the top of
the Falls, at which time the blindfold was removed.
Claimant testified she was never blindfolded at any time that day. Second,
exactly where claimant was located prior to slipping into the stream above the
Falls (which ultimately caused her to fall into the stream and be carried
over the Falls) was a primary source of disagreement between the two.
The Court observed the two witnesses testify and their demeanor having done so.
The Court credits Ms. Ramos as being more credible in explaining the
behavior and actions of the two women in a manner consistent with the
circumstances of the incident.
Certain facts were not disputed. Neither the area where Ms. Ramos parked (at
the beginning of the Laurel House trail) nor the trail itself, contained any
signs, whether providing warnings or directions regarding the Falls, or
otherwise. Further, prior to reaching the top of the Falls, claimant knew she
was at a substantial waterfall, both by statements of Ms. Ramos and by
the sounds of the unseen Falls as the women ascended the Laurel House trail.
Claimant was wearing “slip-on,” flat rubber-bottom shoes with, in
her words, “no tread.” By the time claimant reached the top of the
Falls, she had a full and open view of the surrounding landscape, including the
panoramic view from above the Falls. The accident occurred at about 3:00 p.m.,
it was “overcast”and it had rained that day (Claimant’s
Exhibit 6, the “Search and Rescue Report” indicates a
“Light” rain at the time of the incident). Kaaterskill Falls
is in a wilderness area within the Catskill Forest Preserve, with members of the
public free to traverse any area, whether or not marked, and whether or not a
trail is denominated “official.” Indeed, the public may go anywhere
and do any lawful thing, denied access to no area of the forever wild
The parties made several arguments, and presented several witnesses (including
an expert witness each) in support of those arguments, all, in the Court’s
view, to no great ultimate probative effect. Claimant argued the Laurel House
trail was easily and openly accessible to the public, without supervision,
contained no warning signs, that there was no direction to an
“official” trail at the base of the Falls, that Kaaterskill Falls
had no observation deck from which to view the Falls from above, that accidents
and death had occurred previously in the area, that those incidents were known
to the defendant and that defendant took insufficient action to ensure the
safety of the visiting public.
Defendant responded by asserting that claimant and Ms. Ramos were hiking
(insulating defendant from liability under General Obligations Law §
9-103), that Laurel House trail was not an “official” trail, and
that Kaaterskill Falls was in an area of defendant’s property completely
open to the public, to which no access was denied.
All of these arguments, while earnest, fail to address the one dispositive
issue in the case - the open and obvious danger of walking the rocky stream bank
near a tremendously dangerous waterfall descending hundreds of feet over a
cliff, fed by the running water of a stream adjacent to the rocky banks. At no
time after first arriving where the visitors parked near the Laurel House trail
was claimant unaware that she was at a dramatic waterfall.
Both claimant and Ms. Ramos testified that they spent some amount of
time above the Falls, after having ascended Laurel House trail, standing on the
banks of the stream feeding the Falls, openly viewing the panoramic vista, and
discussing from where to get the best vantage point to enjoy the Falls.
Exhibit 1 contains a green “x” and a red “x.” Ms. Ramos
testified that claimant, in attempting to step across the stream at the
red “x,” moving from one bank to the other to achieve a better view,
about eight (8) feet from the cliff’s edge, fell into the stream and was
carried over the Falls. Claimant testified she slipped on a rock and fell into
the stream at the green “x,” approximately 20 feet from the
cliff’s edge, and not while attempting to cross the stream but while
trying to navigate back upstream along the banks in an effort to find a more
suitable place to cross the stream (depicted by the green “arrow” in
exhibit 3). The Court credits the testimony of Ms. Ramos.
Any examination of the photographic evidence depicting the top of the Falls
indicates the open, obvious, dramatic and exceedingly dangerous nature of the
landscape - the rocky stream bank, the deep gorges, a flowing stream feeding a
waterfall passing over a cliff and cascading water falling hundreds of feet over
In Cohen v State of New York (50 AD3d 1234, 1235 [3d Dept 2008]; lv
denied 10 NY3d 713 ), the court noted that a property owner, including
the State of New York,:
“ ‘[H]as a duty to take reasonable precautions to prevent accidents
which might foreseeably occur as the result of dangerous terrain on its
property’(Walter v State of New York, 185 AD2d 536, 538 ), by
posting warning signs or otherwise neutralizing dangerous conditions (see
Preston v State of New York, 59 NY2d at 999; Walter v State of New
York, 185 AD2d at 538). However, the duty to take reasonable precautions
does not extend to open and obvious conditions that are natural geographic
phenomena which ‘can readily be observed by those employing the reasonable
use of their senses’ (Tarricone v State of New York, 175 AD2d 308,
309 , lv denied 78 NY2d 862 . . . In such situations,
defendant is not liable for injuries caused thereby.”
Claimant essentially alleges that the defendant failed to adequately warn of
the dangers involving the Falls and the stream leading to the falls, and failed
to provide some type of barrier or platform to prevent persons from falling from
the top of the falls.
Tarricone (175 AD2d at 309 [3d Dept 1991]), states the applicable law
with respect to both of claimant’s essential allegations as follows:
“There is no duty on the part of a landowner to warn against a condition
that can readily be observed by those employing the reasonable use of their
senses . . . Under such circumstances, the condition is a warning in itself . .
. Claimant further contends that the State was negligent in failing to erect
barriers, i.e., a higher wall or fencing, in order to prevent members of the
public from gaining access to the ledge. While claimant cites numerous
authorities in support of that proposition, we note that the controlling factor
central to those cases is that the State must take such precautions where latent
dangers exist not readily apparent to the public.”
The Walter case, cited above, although superficially similar to the
instant claim, ultimately offers claimant no support. In Walter, the
claimant was attending a school picnic at Thacher State Park in Albany County.
The Walter court (185 AD2d at 537) described the ensuing accident as
“[C]laimant left the group alone to go to the bathroom. Because the
restroom nearest the picnic area was locked, claimant, in search of some
privacy, walked across the picnic area toward a 3 1/2-foot-high split-rail fence
bordering the area's north side and separating it from a wooded area and a
cliff. Posted on and near the fence were signs which read as follows:
"KEEP INSIDE RAIL
"WATCH YOUR CHILDREN
"PEOPLE WALKING BELOW
"DO NOT THROW
"ANYTHING OVER CLIFF."
Upon reaching the fence, claimant climbed over and followed a dirt path which
ran perpendicular to the fence in the direction of the cliff for roughly 30
feet. As claimant proceeded to urinate, she apparently slid off the edge of the
cliff and fell approximately 60 feet, sustaining serious injuries.”
The Walter court affirmed the lower court’s decision allocating
liability equally between claimant and the defendant State, stating (185 AD2d at
“[T]he uncontradicted trial evidence, including photographs, established
that the difficulty in seeing the edge of the cliff created by the trees and
underbrush in the 30-foot area between the fence and the cliff gave rise to a
latent danger of which the State should have been aware. This danger was clearly
enhanced by the presence of the dirt path running in the direction of the cliff,
indicating that the area beyond the fence was traveled by park patrons despite
the existence of the fence and the warning signs.”
Having agreed with the lower court that the proof showed “a latent,
dangerous condition readily discoverable by the State,” the Walter
court further affirmed the lower court’s finding that the State failed to
take reasonable measures to neutralize the condition or to otherwise prevent
injuries (185 AD2d at 538-539).
Unlike the situation presented in Walter, the profound danger posed by
the Kaaterskill Falls was open and obvious to anyone employing the reasonable
use of her senses. Under these circumstances the State owed no duty to warn of
the open and obvious danger nor did it have any duty to erect barriers or
platforms to prevent members of the public from gaining access to the natural
geographic phenomena constituting the Falls (Tarricone, 175 AD2d at
As tragic as some events are, liability cannot necessarily be assigned.
Such is the case here. Even accepting claimant’s less credible account,
claimant, at three o’clock in the afternoon on an overcast and
somewhat rainy day, with a full, open and unimpeded view of a cliff leading to a
several hundred foot waterfall, made the unfortunate but patently obvious and
dangerous decision to navigate the rocky stream bank, upon wet rocks, abutting a
running stream, at a point approximately 20 feet from where the stream
led to the edge of a 200 foot waterfall.
By Ms. Ramos’s more credible testimony, under the same conditions,
claimant fell attempting to cross the running stream feeding the Falls, eight
(8) feet from the cliff’s edge. All this, while wearing, without
contradiction, flat, rubber-soled “no tread” slip-on shoes. Under
either scenario, claimant’s case, tragic as it is, must fail.
The claim, for all of the reasons set forth above, is dismissed.
All motions not previously decided are hereby dismissed.
Let judgment be entered accordingly.
August 1, 2008
HON. FRANK P. MILANO
Judge of the Court of Claims