New York State Court of Claims

New York State Court of Claims

MAKRIDIS v. THE STATE OF NEW YORK, #2009-030-013, Claim No. 113088-A


Synopsis


Claimant failed to establish by a preponderance of the evidence that dangerous and hazardous conditions existed on a roadway utilized by pedestrians at Tiorati Lake Beach in Harriman State Park, where she slipped, fell and suffered injury. Claim dismissed

Case Information

UID:
2009-030-013
Claimant(s):
ELISAVET MAKRIDIS
Claimant short name:
MAKRIDIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113088-A
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
SACCO & FILLAS, LLPBY: ANDREW WIESE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
June 8, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Elisavet Makridis alleges in her filed claim that defendant’s agents allowed dangerous and hazardous conditions to exist on a roadway utilized by pedestrians at Tiorati Lake Beach in Harriman State Park, and furthermore failed to warn of such hazards, causing claimant to fall and suffer injury on May 7, 2006. Trial on the issue of the State’s liability was held on April 1, 2009, and this decision relates only to same.


Ms. Makridis, testifying through a Greek interpreter, claimant’s son George Makridis, and Norma Daniels, park manager at Tiorati Lake Beach, all testified.

Ms. Makridis, an elderly widow living with her son George and his wife, testified briefly about the day of the accident at Harriman State Park. She recalled that May 7, 2006 was a beautiful day and she was taken to visit the park by her son and daughter-in-law. They went to the Lake Tiorati picnic area when they arrived at approximately 11:00 a.m. and remained there until she realized she needed to use a bathroom at about 1:30 p.m. They had noticed that the bathrooms were being repaired, so she asked her son to accompany her to the information building for directions to alternative facilities because her “English was not so good,”[1]

While Ms. Makridis waited outside the information building, George spoke to someone inside, and was told that there were temporary bathrooms across the street. The area immediately outside the office building was paved, and Ms. Makridis and George walked without incident. She then told him to go back to his wife, and continued on alone. She was wearing rubber soled, flat shoes. As she walked on, past the paved area, she said,
“there was a lot of dirt, stones, gravel and rocks; it was very uneven, with holes and openings. The way I was proceeding to go my foot fell in, I guess maybe the dirt was wet and I fell. The way I put my foot down it went down into the hole, and I fell forward. I was looking forward as I walked.”


She recalled that the ground in the immediate area where she fell was “very bad, very uneven ground, lots of sand, dirt, holes.” After she fell, her son came over and helped her.

She was shown a photograph she agreed depicted the area in which she fell, a parking lot clearing, with a rough driveway or roadway area leading to it. [See Exhibit 1]. In the upper right side of the photograph, a blue portable toilet is visible. It is behind a red truck, a dumpster, and to the left of a silver tank truck. A stone building - later pinpointed as the permanent restroom structure - can be seen to the right of the silver tank truck. In the left forefront of the photograph, another blue portable toilet is visible. It was toward the portable toilet on the left that Ms. Makridis was walking when she fell. In the rough driveway area at the very front of the photograph claimant marked the area in which she fell. This driveway area appears to be generally flat, and composed of dirt, gravel, and some broken up - but granular - blacktop material rendering the center portion of the drive somewhat uneven. [Id.].

On cross-examination - perhaps because of language barrier - Ms. Makridis was not able to identify specifically other photographs as depicting the area in which she walked and then fell, although at least some of the photographs were later identified by her son as depicting the area in which they walked and where his mother fell. [See Exhibits 1, 2, 3, 4, 5]. Ms. Makridis did not recall there having been vehicles parked there, or dumpsters, and after some confusing questioning by counsel for the defendant, said that she really only saw the road she was walking on to get to the portable toilet. There were no parked vehicles that she recalled during her walk from the office to the portable toilet. The only photograph showing the condition of the roadway where she fell as she recalled it was Exhibit 1. It does not show the “paving and no-paving” condition she was describing, and, indeed, as defendant’s counsel pursued questioning, she said that the condition of the dirt and gravel shown in the photograph was “worse” on May 7, 2006. [Exhibit 1].

She repeated that she was “walking and watching” as she walked, looking at the ground. She “saw holes around”, which was why she was walking carefully. Asked by defendant’s counsel if she “saw the hole”, Ms. Makridis said:
“I didn’t see it, otherwise I wouldn’t have stepped in it, but I stepped gently, and my foot fell in. I did not see it beforehand. It was soft, and my foot went in and I fell. I did not see this hole, I saw holes around that’s why I was trying to be careful.”


A sign, which based on the testimony by park manager Norma Daniels, is one that is supposed to be posted on one of the two doors to the information building, indicates: “Restrooms closed. Portajons are located across the street, behind the stone building.” [Exhibit 8 ]. Ms. Makridis was only able to read the word “closed” with ease, but could not understand “restrooms” or “portajons.” Later uncontradicted testimony by George Makridis also indicated that the sign was not up in any event. Ms. Daniels could not say from personal knowledge whether the sign was up.

Ms. Daniels did confirm, however, that there were two portable toilets behind the closed permanent comfort station: one had been placed behind the building for use by the public and park employees, and the other had been placed slightly further away from the building by the construction company doing water-line and repair work. Both are shown in Exhibit 1, although the State’s portable toilet is obscured by a parked silver water truck. On May 7, 2006 Ms. Daniels said the silver water truck was not immediately behind the comfort station, but rather beyond the State’s portable toilet “back by the green dumpsters.” In that location, it would not have obstructed a view of the State’s portable toilet from the vantage point of the claimant’s entry into the dirt roadway, although the green dumpster would still have blocked the view of the State’s portable toilet somewhat.

George Makridis confirmed that the family had been at the picnic area of the park for about two and one-half (2½) hours when his mother said she needed to use a restroom. He had observed people utilizing a portable toilet during their visit - namely the one placed there by the construction company - but hoped to find more comfortable restrooms for his mother by going to the information building for advice. There was no sign such as the one mentioned above, nor had he seen any such signs elsewhere. [See Exhibit 8]. When he went inside the information building, there was one person behind the counter in a uniform. She advised that the comfort station building was under construction, and she pointed across the roadway to a portable toilet visible from the building. The area outside the information building and where they first walked was paved with blacktop. To get to the portable toilet itself he said,
“My mother had to go to the right down a little dirt road . . . and my wife was back on the other side. I wanted to keep both in view, so I stayed on the paved part. Mom was on a dirt road.”


The only sign he saw on the dirt road was one indicating
“ ‘authorized vehicles only’, referring to traffic of vehicles of course. There were no handrails on the dirt road. I saw her fall. I was about 10 to 12 yards away. I went over and helped her up.”


When he helped his mother up he observed the area where she had fallen. “It was very uneven, there was a mixture of soil and tire marks from construction vehicles, and there were pebbles and some asphalt, it was a mixture.” He identified Exhibit 1 as the photograph depicting the area where his mother fell, and said that it looked as it had on that day.

On cross-examination Mr. Makridis confirmed that none in their party had used a restroom until his mother’s request, and that he had observed people using the portable toilet his mother was walking toward when she fell. Shown an out-of-scale map of the Lake Tiorati picnic area, he recognized the basic configuration. [Exhibit A]. He marked where they were in the picnic area relative to the information building - which was located in a center circle from which four roads diverged - the permanent comfort station, and also marked in red where the dirt roadway (not shown on the map) departed from the paved portion of the road. [Ibid.]. From his vantage point inside the building, the only visible portable toilet was the one his mother walked to. He confirmed that while they were in the picnic area, and also when they were then standing on the paved roadway by the dirt driveway, he only noticed that one portable toilet, saying “right now I know there’s another one that exists, but I did not notice it that day.” He also confirmed that there were trucks and construction vehicles parked there on May 7, 2006, including a silver tanker, a dump truck, and a front-end loader, shown in various photographs and identified as being in the area of both portable toilets.

Norma Daniels, who had been park manager for three (3) years at Lake Tiorati in May 2006, testified generally as to park operations and features, agreeing that Exhibit A fairly and accurately depicted the configuration of the park. The park office is at the center of the circle at Seven Lakes Drive, Arden Valley Road and Tiorati Brook Road, and was open seven days a week in May 2006. [Ibid.]. She confirmed that the dirt driveway marked in red by Mr. Makridis as the route his mother took to get to the portable toilet is a driveway from Arden Valley Road to an employee parking area, and herself marked the location of the State-provided portable toilet directly behind the permanent restroom building, adjacent to the paved apron surrounding the building. Directly around the comfort station were clear indications of construction in progress, including bright orange flexible fencing, and churned up soil. [See Exhibit F].

At the time of the accident, work was being done at the park in anticipation of the regular season commencing Memorial Day weekend, including finishing construction on a water line by the road, and some rehabilitation work at the comfort station. Such work had been ongoing since October 2005. Construction personnel used the employee parking area as a place to park their construction vehicles, although materials and the like were not delivered or dispensed from that location. May 7, 2006 was a Sunday, however, so there was no work being done that day.

The parking area was never a paved area, Ms. Daniels said, but rather an area of generally level, cleared ground surrounded by forest, but studded with trees, tree roots, rocks of various sizes, drained only by whatever natural slopes or contours existed. As noted, the area was posted for only authorized vehicle use, however there were no barriers or other direct impediments forbidding other traffic, including pedestrian traffic. The driveway itself was wide enough for one vehicle to pass, and consisted of the same dirt, rock and gravel. Ms. Daniels agreed that the conditions shown in the driveway to the parking area were worse than they had been when only employees used the area, but said that the construction vehicles also packed down the driveway. [See Exhibits 1, 2, 4].

Part of her job was to maintain reports of accidents. There were no records of any accidents at the location of claimant’s fall, nor did any employees recall any prior accidents not made the subject of written reports when she asked them. Additionally, there was no record of any complaints concerning unsafe road conditions. She herself utilized the driveway leading from Arden Valley Road into the employee parking “a few times a week,” driving her Ford Ranger pick-up truck into the area, and had not observed anything remarkable or unsafe. She also had occasion to walk in the area and had not observed anything unusual.

The general rule for maintenance problems of the driveway (or elsewhere), “such as ruts or washouts from rain, or any holes,” would be that they were “taken care of” as they arose. Crews were available seven days a week to make repairs. There was “no paving done at this driveway” during her tenure, nor did she recall any blacktop on the driveway, or its use for repairs. If her employees saw holes, they would fill them in with gravel, not asphalt or blacktop. Conditions such as deep ruts or tracks would occur more frequently during or immediately after wet weather conditions, but she was unaware of the weather conditions in the week prior to May 7, 2006. [See Exhibits 2, 4, 6].

Although Ms. Daniels was working on May 7, 2006, she did not know who was in the information building that day. She herself does not wear a uniform, but her staff does. All the staff knew where the restrooms - including temporary toilets - were located, and would
“never direct people to the construction company’s portajon because that’s theirs. On weekends, the construction people turn the [portajon] to face toward their trucks so that people don’t use it . . . The doorway is in toward the parking lot not in toward the public road.”


There was no particular sign demarcating the State’s portable toilet. Ms. Daniels did not know whether the construction company’s portable toilet was posted in any fashion.

After claimant fell and was helped back by her son they left the park without reporting the accident.

No other witnesses testified.
DISCUSSION AND CONCLUSION
Although the State has a duty as a landlord to prevent foreseeable risks of harm, it is not the insurer of public safety. Its duty is to exercise “reasonable care under the circumstances . . .” [Basso v Miller, 40 NY2d 233, 241 (1976) (citations omitted)], to protect against foreseeable risks of harm. See Preston v State of New York, 59 NY2d 997, 998 (1983). For premises liability, assuming that the State did not create the dangerous condition, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986).

“Foreseeability is the initial measure of a landowner’s liability for injuries on the premises . . . (citations omitted). Thus, a landowner must adequately warn against a danger if someone ‘would not discover or realize the peril and guard against it’. . . (citation omitted) and must take steps to ‘prevent those accidents which might foreseeably occur as the result of dangerous terrain’. . . (citation omitted). The test is not whether a particular defendant foresaw a particular risk but, rather, ‘whether a reasonably prudent person should have foreseen the risk and whether defendants exercised the care of a reasonably prudent person’ . . . (citations omitted).” Walter v State of New York, 150 Misc 2d 352, 354-355 (Ct Cl 1991) affd 185 AD2d 536 (3d Dept 1992).

With respect to constructive notice, any “defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a defendant] to discover and remedy it . . . (citations omitted).” Gordon v American Museum of Natural History, supra at 837; Zuppardo v State of New York, 186 AD2d 561(2d Dept 1992).

While the open and obvious nature of a claimed defect or dangerous condition militates against a duty to warn [see Cupo v Karfunkel, 1 AD3d 48, 49, 52 (2d Dept 2003)][2] a landowner nonetheless has a duty to maintain its property in a reasonably safe condition in the first instance. In this regard, however, a landowner is not held liable for injuries resulting from conditions on the property that are “inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it . . . (citations omitted). “ Torres v State of New York, 18 AD3d 739 (2d Dept 2005);[3] see also Nardi v Crowley Mar. Assoc., 292 AD2d 577, 578 (2d Dept 2002);[4] Csukardi v Bishop McDonnell Camp, 148 AD2d 657 (2d Dept 1989);[5] Gerendash v State of New York, UID # 2004-034-003, Claim No. 103416 (Hudson, J., February 6, 2004).[6]

Whether a defective condition exists on the given property so as to create liability depends on the peculiar facts and circumstances of each case. Trincere v Suffolk Co., 90 NY2d 976, 977 (1997). Before negligence can be found it must be established that the accident-causing instrumentality constitutes a dangerous condition, defect, or trap in the first instance. A trivial defect does not subject a landowner to liability. Tripoli v State of New York, 72 AD2d 823, 824 (3d Dept 1979).[7] Significantly, “[n]egligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of the claimant to show affirmatively by competent evidence that the injury complained of was caused by reason of some breach of duty by the State. Negligence must be proven.” Mochen v State of New York, 57 AD2d 719, 720 (4th Dept 1977); see also Green v State of New York, 222 AD2d 553, 554 (2d Dept 1995);[8] Byrd v State of New York, 206 AD2d 449, 450 (2d Dept 1994).[9]

Applying the foregoing to the instant case, the rough and uneven surface of the area off the paved pathways of a rustic State park in the off-season - where ongoing construction is patently visible - while not precisely the type of “incidental” feature that might be anticipated by the reasonably wary public user of the land, is nonetheless not a dangerous condition. There was no proof of prior accidents at this location. There was no proof other than the unscaled photographs as to the depth, or width or length of any tire ruts or holes and, indeed, the photographs do not show any appreciable detail of same. While the photographs certainly show a rough surface containing tire ruts and the like that would clearly be expected in a temporary construction area, the depth and degree of these ruts was not quantified by either the testimony of claimant or her son, or by an expert. No trap or hidden defect is revealed by these photographs. Cf. Walter v State of New York, 150 Misc 2d 352, supra. From the photographs, the irregularities appear minor and readily traversable by a steady, careful, walker. There was no indication that claimant and her son had any difficulty making their way back after her fall. Others had utilized the portable toilet without incident according to Mr. Makridis’s testimony. No proof of rainy weather conditions having preceded the day of the accident - suggesting the possibility of more perilous road tracks extant - was provided. There was no indication that the maintenance measures taken by park personnel were somehow deficient.

The generalized information given to claimant’s son that a portable toilet was available across the street behind the comfort station, coupled by a pointing gesture, does not create some additional basis for liability. Since the claimant has not established that the area was dangerous in negligence terms in any event, physically blocking off the driveway already marked for authorized personnel only, or posting signs in English that claimant could not have deciphered, would not have prevented this accident. Moreover alternate, less challenging (i.e., paved) routes to the State’s portable toilet were available, and should have been observed had claimant and her son taken full notice of their surroundings.

While the court is certainly sympathetic to the claimant’s unfortunate accident, not every accident gives rise to liability. It is the claimant’s burden to prove her case by a preponderance of the credible evidence. As the trier of fact and law, charged with assessing the credibility of the various witnesses and evaluating the weight of the evidence, the Court finds upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, that the State is not responsible for the claimant’s trip and fall and resultant injury. Claimant has not proven by a fair preponderance of the credible evidence that a dangerous or defective condition existed on the dirt and gravel driveway area leading to the portable toilet, warranting imposition of liability upon the State of New York.

Accordingly, Claim number 113088-A is in all respects dismissed. Trial motions not otherwise disposed of are denied as moot.

Let judgment be entered accordingly.

June 8, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Quotations are to audio recordings or trial notes unless otherwise indicated.

[2]. “On this appeal we are asked to consider whether proof that an allegedly dangerous condition on real property is ‘open and obvious’ precludes a finding of liability against a landowner. Recognizing that our decisions on this issue may appear inconsistent, we take this opportunity to clarify that the open and obvious nature of an allegedly dangerous condition is relevant to the issue of the comparative fault of the plaintiff and does not preclude a finding of liability against the landowner . . . Where a plaintiff has presented evidence [on a summary judgment motion] that a dangerous condition exists on the property, the burden shifts to the landowner to demonstrate that he or she exercised reasonable care under the circumstances to remedy the condition and to make the property safe, based on such factors as the likelihood of injury to those entering the property and the burden of avoiding the risk. Evidence that the dangerous condition was open and obvious cannot relieve the landowner of this burden. Indeed, to do so would lead to the absurd result that landowners would be least likely to be held liable for failing to protect persons using their property from foreseeable injuries where the hazards were the most blatant. We . . . (citation omitted) hold that proof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiff's comparative negligence. Accordingly, our decisions which stand for the broad proposition that liability under a theory of common-law negligence will not attach when the allegedly dangerous condition is open and obvious should no oftlinelonger be followed . . . (citations omitted).”
[3]. “Here, based on the testimony and photographs adduced at trial, the tree stump encountered by the claimant in or around a picnic area in Franklin D. Roosevelt State Park was such a condition [inherent or incidental to the nature of the property]. Accordingly, the Court of Claims properly dismissed the claim.”
[4]. “[Plaintiff] assumed the risk inherent in walking on the moss-covered incline, which was an open and obvious hazard.”
[5]. When plaintiff “walked to the back of the campgrounds, she came upon a row of trees and observed a playground area on the other side of the trees. The plaintiff passed through the tree-lined area which was covered with grass and, in doing so, allegedly tripped over a six-inch-high tree stump which was covered by a mound of grass thereby sustaining physical injury.”

[6]. Foreign visitor to State park walked off blacktopped pathway onto a narrow rough path made of dirt and rocks positioned between large boulders. State did not install barriers to prevent visitors from leaving the paved area. Claimant tripped over a section of rock in the middle of the worn path, which she alleged had been covered with sand or dirt, losing her balance and unable to break her fall forward. She injured her left knee and right shoulder areas, but was able to stand up and walk the back to the paved path.”[T]he conditions presented along the path were natural conditions in a rustic area. Whether Claimant tripped on an outcropping that was fully exposed, or one covered with surrounding soil or sand, the protrusion was part of the natural bedrock, and not ‘so out of character with the proximate surroundings as to be the foreseeable cause of an accident’. . . (citation omitted). That the park manager acknowledged that a person walking in the area of Claimant’s fall could sustain injury does not mean that the condition was defective or dangerous. Indeed, Claimant herself testified that she did not believe the pathway to be dangerous, yet knew she had to be careful as she walked its route. Further, in the Court’s view it is significant that Claimant readily negotiated the path when she first traveled to the more remote part of the island, that another tourist walked the path ahead of Claimant without reported incident, that her son used the path as he filmed it a week or two following the incident, and that no prior tripping incidents have been established. The evidence supports that the conditions were as they appeared, without hidden defect. For those reasons the Court concludes that the area in question did not present a dangerous condition.”
[7]. Claimant walked from his car to the picnic site across a grass-covered portion of the parking lot and fell when he stepped into a hole described as being approximately one foot wide and from eight inches to one foot in depth. “It is well settled that the State is not an insurer of park visitors; its duty is to keep the facility reasonably safe for its intended uses. Here, there was no evidence concerning the origins of the depression; the duration of its existence was unknown; the terrain surrounding it was not specifically described; the height of the grass at the time of claimant’s mishap was not fixed and there was no indication of its height before and after a normal mowing; the relationship, if any, between grass height and awareness of this particular hole was not detailed at trial; and, lastly, there was a total lack of proof suggesting what constituted proper mowing schedules and procedures . . . The facts actually developed warrant nothing more than a speculative conclusion that the State might have negligently failed to meet its obligation of maintaining the parking lot in a reasonably safe manner for pedestrians. There is no support for the proposition that the hole represented anything more than a trivial defect generally encountered when crossing open lands or that it was so out of character with the proximate surroundings as to be the foreseeable cause of an accident.” [Tripoli, 72 AD2d at 823-824].
[8]. Park visitor allegedly injured her knee when she slipped and fell on a muddy, paved walkway in Bear Mountain State Park. Trial theory was that the State negligently created the muddy condition by using silt as a filler near the accident scene. “Here, even if we assume, arguendo, that the claimants proved that the State used silt as filler during the time in question, they failed to proffer any proof that this use of silt constituted negligence. Indeed, as noted by the trial court, the claimants’ expert did not testify that the State should have used another type of filler or that the use of another type of filler would have probably or necessarily brought about a different result. Further, the proof at trial indicated that although the walkways in the park were routinely maintained, there were very heavy rains for several days prior to the accident. In view of both the relatively minor likelihood and seriousness of an injury that might be expected to arise from a muddy walkway in a State park and the heavy burden that would be placed on park employees if they were required to keep the park walkways mud-free under the conditions presented, the presence of mud on the walkway at issue did not represent an unreasonably unsafe condition or a departure by the State from the actions that would have been undertaken by a reasonable person.”
[9]. Claimant was injured when she slipped in a muddy area and her foot went into an erosion channel next to a paved path while chasing a volleyball. “In order for the claimant to successfully prove her allegations of negligence, she had to show that the State knew of the defect which caused the accident or that it existed for such a period of time that, in the exercise of reasonable care, the State should have known of the defect . . . (citation omitted). There is no evidence in the record that notice of the presence of the alleged defective condition had been conveyed to the State’s representatives. On the contrary, the State produced evidence that it had not received complaints concerning the area. Further, the manager of the park testified that no work orders were found for this area.”