New York State Court of Claims

New York State Court of Claims

PREIS v. THE STATE OF NEW YORK, #2008-041-514, Claim No. 111565


Claim alleging that defendant’s failure to erect a fence negligently caused claimant-pedestrian to fall into a culvert adjacent to shoulder of roadway is dismissed after trial where proof showed that: 1) the terrain involved did not constitute a dangerous condition; and 2) claimant’s decision to leave the roadway shoulder and travel across a dark grassy area was the proximate cause of claimant’s injuries.

Case Information

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:
By: LEWIS, JOHS, AVALLONE, AVILES, LLPBy: Jeffrey M. Pincus, Esq.
Defendant’s attorney:
New York State Attorney GeneralBy: John L. Belford, IV, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 3, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 rainy.”[1] 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 [1983]). "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 [1997]; 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 [1986]; 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 1992]).

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 losing balance.

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 culvert.[2]

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 “[i]mpossible.”[3]

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 expert.[4]

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:
“[L]eft the group and ran to the right, or to the south and disappeared behind a line of trees paralleling the south edge of the pavement of said highway and located at a distance of about twenty-six and one-half feet southerly therefrom. While decedent was thus engaged, he plunged into a culvert there located, and fell a distance of about fourteen feet into the water below.”
The Court of Claims dismissed the claim and was affirmed on appeal:
“The State may not be held to anticipate that foot travelers would depart far beyond the ample shoulder of the road and enter into an area which was not intended and was not used for travel” (Lyons v State of New York, 274 AD 1086, 1086 [4th Dept 1949]).
In Harrow v State of New York (21 AD2d 571 [3d Dept 1964]), a bicyclist, traveling the wrong side of the road, left a sidewalk to avoid a high curb and, rather than immediately returning to the sidewalk, “travelled a short distance across a grassy area when he suddenly and unexpectedly dropped into the drainage culvert.” Claimant alleged that the State was negligent “in not providing a barrier affording greater protection” (21 AD2d at 572). The Court of Claims dismissed the claim and was affirmed on appeal:
“In our opinion even if the State could be held to foresee that a bicyclist at that point would be proceeding on the wrong side of the road, it could reasonably assume that such a traveler would select the patently safe method of returning to the sidewalk rather than intentionally proceed through an area marked by warning posts and obviously not intended for pedestrian or vehicular traffic” (21 AD2d at 573).
Finally, in a fact pattern remarkably similar to that presented here, a claim alleging that the state was negligent in maintaining a drainage culvert along a state highway was dismissed. The relevant facts in Kelley v State of New York (UID #2002-019-015, Claim No. 101747 [Ct Cl, July 10, 2002], Lebous, J.)[5] follow:
“Claimant was about 3/4 of a mile from her home, walking on the westbound shoulder of the roadway in an easterly direction. She testified that when an automobile passed, she would step off the paved portion of the 4-foot shoulder to give herself more room. However, rather than wait in safety for the automobiles to pass, Claimant left the paved shoulder of the roadway and continued walking in the dark off the shoulder and on the grass adjacent thereto. As she continued walking, Claimant inadvertently stepped into the open end of a culvert which she could not see in the dark, and fell a distance of approximately 5 feet resulting in a broken leg.”
The Kelley court noted that: “the condition of the culvert itself presented no danger to pedestrians who were properly using the paved shoulder as a walkway as opposed to the adjacent grassy area.” Ultimately, the Kelley court determined that claimant’s own behavior caused her injuries:
“[R]ather than accept a ride home with her daughter, [claimant] chose to walk in the dark without a flashlight or any illumination, and in spite of all of that, chose to walk off the paved shoulder of the highway onto the non-paved adjacent grassy portion of the right-of-way. Moreover, Claimant also could have simply stopped and stepped to the side to allow for traffic to pass instead of stepping off the shoulder of the roadway and continuing her sojourn in the dark on the unimproved, uncharted, adjacent grass. Had she simply stopped and stepped to the side without straying off the shoulder, she might have ultimately prevented herself from falling in the dark into the culvert.”
The instant claim involves the same infirmities aptly described in Kelley.

For all of the foregoing reasons, the claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

October 3, 2008
Albany, New York

Judge of the Court of Claims

[1].Mr. Preis, Trial Transcript, p. 24.
[2].Mr. Preis, Trial Transcript, pp. 98-99.
[3].Dr. Abraham, Trial Transcript, p. 222.
[4].Dr. Abraham, Trial Transcript, p. 261.
[5].This and other decisions of the Court of Claims may be found at the Court's website: