New York State Court of Claims

New York State Court of Claims

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 waterfall.

Case Information

1 1.Caption amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
ELOVICH & ADELL, ESQS.By: Glenn L. Sabele, Esq.
Defendant’s attorney:
New York State Attorney GeneralBy: Belinda Wagner, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 1, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 public.

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 cliff.

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 Preserve.

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 that cliff.

In Cohen v State of New York (50 AD3d 1234, 1235 [3d Dept 2008]; lv denied 10 NY3d 713 [2008]), 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 [1992]), 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 [1991], lv denied 78 NY2d 862 [1991]. . . 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 follows:
“[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:








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 538) that:
“[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 309).

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
Albany, New York

Judge of the Court of Claims