On the evening of October 30, 2004, Erich Preis (claimant) and his then
girlfriend were returning from a car trip to Connecticut with Mr. Preis as the
passenger. The two argued and while traveling north on Round Swamp Road in
Bethpage State Park the car was stopped and the claimant exited the car at
approximately 7:30 p.m. It was “really dark,” and “the
weather was misty and foggy and slightly
The claimant began walking
north, with the flow of traffic, in the two- to three-foot-wide asphalt shoulder
of Round Swamp Road, intending to walk to a gas station approximately a mile
away to call his father for a ride.
After walking between 50-150 yards, and after a truck passed him and he became
concerned about the passing traffic, claimant stepped off the paved shoulder of
Round Swamp Road, stepped to his right, on the east side of Round Swamp Road,
onto grass. At this point he was about 10-15 feet from a brick bridge overpass
on Round Swamp Road, which covered a cement culvert running east and west under
Round Swamp Road and which was used by golfers on foot and in golf carts to move
safely from one area of a Bethpage State golf course to another, bringing them
from the east side of Round Swamp Road to the west side, and vice versa, by
having them travel under Round Swamp Road.
Although where claimant specifically first fell after having left the paved
road shoulder was a matter of factual dispute, claimant ultimately fell into the
culvert, retained by cement walls on each side, injuring his hand and wrist.
Numerous photographic exhibits introduced by each party excellently depict the
topography of the area involved.
"Having waived its sovereign immunity, the State is subject to the same rules
of liability as apply to private citizens" (Preston v State of New York,
59 NY2d 997, 998 ). "It is beyond dispute that landowners and business
proprietors have a duty to maintain their properties in reasonably safe
condition" (Di Ponzio v Riordan, 89 NY2d 578, 582 ; Jones-Barnes
v Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]). However,
"[w]hile the State clearly owes a duty to claimants and others entering upon its
property to maintain it in a reasonably safe condition under the circumstances,
it is not obligated to insure against every injury which may occur" (Smith v
State of New York, 260 AD2d 819, 820 [3d Dept 1999]).
The State's liability for a slip and fall is premised upon proof that it either
created the alleged dangerous condition or knew, or in the exercise of
reasonable care, should have known that a dangerous condition existed but,
nevertheless, failed to remedy the situation within a reasonable time period
(Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz
v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New
York, 188 AD2d 918, 919 [3d Dept 1992]).
Where there is insufficient proof that the defendant created or had actual
notice of the condition, liability turns on the issue of whether defendant had
constructive notice. "To constitute constructive notice, a defect must be
visible and apparent and it must exist for a sufficient length of time prior to
the accident to permit defendant's employees to discover and remedy it"
(Gordon v American Museum of Natural History, 67 NY2d 836, 837 ;
see Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept
2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept
Certain facts were not disputed. Claimant’s fall occurred on a dark
evening in an area not illuminated (distant streetlights provided no
illumination to the area of claimant’s fall) within an area of Bethpage
State Park without pedestrian trails, and without a paved walkway, and the
culvert on the east side of Round Swamp Road into which claimant fell, unlike
the west side, was unfenced.
The topography in the area of claimant’s fall, on the east side of Round
Swamp Road, south of the culvert into which he fell, is well depicted in
Exhibits 4, 8, 14 and J, and reveals, to the Court’s mind, a non-severe,
gentle sloping from the road surface area of Round Swamp Road to the culvert, an
area where an individual, absent a trip or fall, could easily stand without
Not surprisingly, claimant’s expert witness characterized the area as
hazardous and defendant’s expert witness characterized it as
non-hazardous. Claimant’s expert witness identified the slope as between
5º and 26º. The 26º grade is closest to the road surface (in an
area where claimant claims to have slipped on wet leaves--marked by a red
“x” on Exhibit 1), but the majority of the 17.5-foot sloped area is
of a much gentler grade, a fact clearly visible in Exhibit 8.
There was a dispute about how far east of Round Swamp Road, off the paved
shoulder into the grassy area of Bethpage State Park, claimant was when he fell
into the culvert. Claimant testified at trial that the red “x”
shown on Exhibit 1, at a spot approximately 2 to 3 feet east of the brick bridge
arching the culvert (and 4 to 5 feet east of the paved shoulder of Round Swamp
Road), depicts the spot where he slipped and began his fall into the culvert.
Exhibit J shows a side view of this area with one red “x” indicating
where claimant claims he entered the culvert and the other red “x”
indicating claimant’s claimed landing spot in the culvert, at a distance 2
to 3 feet east of the brick overpass. Exhibit J also shows the nature of the
slope itself. After slipping upon wet leaves, claimant testified he did not
roll over going down the slope, but that he slid feet first into the
Upon cross-examination, claimant acknowledged executing a Verified Bill of
Particulars (Exhibit T) which indicated he fell “approximately 14 feet
east of the point where the southern edge of the underpass intersects with the
eastern side of Round Swamp Road,” or, in other words, at a spot 11-12
feet further east of Round Swamp Road, further into Bethpage State Park from the
paved shoulder, than indicated by his trial testimony.
The Court finds claimant’s testimony concerning how he fell into the
culvert not to be credible. Based upon a view of the identified photographic
exhibits depicting the area in question, the Court finds it improbable that the
claimant slid feet first (without, in the claimant’s own words, rolling
over) down a gentle, sloping embankment, a distance of 17.5 feet, resulting in
an injury to his hand and wrist (testimony otherwise given by the claimant also
indicated he hit his head upon falling into the culvert).
The Court’s conclusion is further supported by defendant’s expert
which found claimant’s account to be inconsistent with the physical
characteristics of the area in which claimant claims to have fallen, terming
claimant’s described slide into the culvert
After a review of the exhibits and the trial testimony, the Court finds first,
as a matter of fact, that the area claimed by the claimant to be the area of his
fall did not constitute a dangerous condition. This finding is further supported
by the unrefuted trial proof demonstrating that there had been no prior reported
incident, going back twenty years, of a person falling into the culvert.
Moreover, the Court finds, as a matter of fact, that claimant fell into the
culvert further east of Round Swamp Road and further off the paved shoulder than
indicated at trial, at a point approximately 16-17 feet into Bethpage State Park
from Round Swamp Road. It is the Court’s conclusion that claimant,
walking in darkness 16-17 feet into Bethpage State Park, in an area without
pedestrian paths, walked directly into the unseen culvert.
Much was made at trial of the fact that the east side of Round Swamp Road, the
location of claimant’s fall, was unfenced, while the west side of Round
Swamp Road was fenced on each side of the culvert. The west side of Round Swamp
Road and the fencing in question are well depicted in Exhibits 2, 10, 11 and 12.
The Court finds, as a matter of fact, that there is a qualitative and
quantitative difference in both the angle of slope and the depth of drop between
the east and west side of the grounds abutting the culvert running under Round
Swamp Road. The angle of slope is much more pronounced on the west side of
Round Swamp Road and the depth of fall from the road surface into the culvert is
also greater on the west side. The Court concludes that a person could easily
stand on the gentle sloping grade of the east side without losing balance, but
that the same could not be said of the west side, where a more pronounced pitch
could require some effort to maintain balance. Accordingly, the Court finds it
reasonable, and not at all indicative of a failure of care (as suggested by
claimant), for the defendant to address the east and west side of the Round
Swamp Road bridge differently, by erecting fencing on one side, but not the
other. Again, the Court’s conclusion is supported by defendant’s
Finally, the Court finds the claimant’s choices, unwise in retrospect, to
have been the proximate cause of his injuries. On the night in question,
claimant had a number of options once he exited the vehicle in which he was a
passenger. He could have walked, lawfully facing traffic, on the west side of
Round Swamp Road, in an area where the bridge over Round Swamp Road was fenced.
He could have, if concerned about passing traffic, momentarily stepped off the
paved shoulder on which he was walking to let traffic pass, and then have
re-entered the paved shoulder. He could have kept to the illuminated paved
shoulder area of Round Swamp Road, rather than venturing into the darkness.
Regrettably, he made none of these choices. Choosing to leave a somewhat
illuminated road shoulder (and walking with the flow of traffic in violation of
Vehicle and Traffic Law § 1156 [b]) on the east side of Round Swamp Road,
claimant walked some distance to his right, literally walking into the darkness,
on a grassy area without pedestrian pavement or pathways, only to fall into an
unseen culvert. Claimant’s unfortunate decision was the proximate cause
of his injuries.
This conclusion comports with prior decisions of the Court of Claims. In
Lyons v State of New York (192 Misc 983, 984-985 [Ct Cl 1948]), the
claimant, along with some companions, was walking along the shoulder of a state
highway. At some point, the claimant: