JONES v. STATE OF NEW YORK, #2009-040-028, Claim No. 112981
Fall at State Park while playing softball. Court finds Claimant failed to
establish State was negligent.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
CHRISTOPHER J. MCCARTHY
Michael L. Diamond, P.C.By: Michael L. Diamond, Esq.
ANDREW M. CUOMO
Attorney General of the State of
New YorkBy: John L. Belford, IV, Esq., AAG
April 7, 2009
See also (multicaptioned
Claimant, Sherese Jones, has failed to establish by a preponderance of the
credible evidence that Defendant was negligent in connection with personal
injuries she sustained on September 9, 2006 when she stepped into a hole located
in the outfield portion of softball field number one (“Field One”)
at Hempstead Lake State Park in West Hempstead, New York. Claimant alleges
that, as a result of her fall, the Achilles tendon of her left leg ruptured.
A bifurcated trial, addressing liability issues only, was held on December 9,
2008 at the Court of Claims in Hauppauge, New York. There were five witnesses:
Claimant; Claimant’s sister, Terri Pritchard; Claimant’s father,
Ricky Jones; Michelle Somma, land management and regulatory affairs coordinator,
New York State Office of Parks, Recreation and Historic Preservation
(“Parks”); and Jeffrey Mason, facility manager at Hempstead Lake
State Park. Thereafter, the parties requested and were granted additional time
to submit post-trial memoranda.
The testimony of Claimant, Ms. Pritchard and Mr. Jones is in complete accord
about Claimant’s accident. Defendant does not dispute that Claimant had
an accident on the field that day. The three witnesses attended a church
barbecue at the park. Claimant agreed that the weather was sunny and clear. A
few hours after they arrived, they and other members of their congregation
joined a separate party of park visitors who were already playing softball on
Field One. Claimant’s accident occurred within the hour after she joined
the game. Claimant had been playing first base for the team in the field, but
there came a time when she switched positions with her sister and went to play
in the outfield between second and third base.
Just as her father came to bat for the opposing team, however, Claimant saw
that her three-year-old son had wandered onto the field and was coming towards
her from the direction of first base. Ms. Jones shouted for her son to stop
and, as she ran to intercept him, she stepped into a hole. Ms. Pritchard heard
her sister shout and, looking back, saw Claimant fall. Mr. Jones also saw
Claimant running on the outfield grass between second and third base. He looked
down for a moment. When he looked up again, his daughter was on the ground.
Claimant testified that she felt a “really sharp, hot pain, like something
in her leg. She tried to stand
up, but felt an “excruciating,” “unbearable” pain on her
left side and could not walk. Ms. Jones dropped back down and sat next to the
hole in the outfield grass into which she had stepped. Her father, sister, and
others came to assist her. Claimant was taken to the hospital. She confirmed
that it was still daylight when she fell and when she left the park to go to the
Two days after the accident, on September 11, 2006, Claimant, her father, and
e, returned to Hempstead Lake State Park. Mr. Jones and his fianc
e took photographs of Field One and the hole (see Exs. 1-8). Claimant
remained in a vehicle in the parking lot because she was sick, but she could see
her father from the car. The photographs that are Exhibits 2 and 8 offer a
broad view of Field One and show Mr. Jones holding Claimant’s crutch and a
tape measure to indicate the location of the hole. Exhibits 3 through 7 are
close-up photographs of the hole. The three witnesses agreed that the exhibits
depict the condition of the hole as they observed it immediately after the
Claimant, her sister and her father conceded that they were not good at
estimating units of measurement and had difficulty describing the location of
the hole in relation to other parts of the playing field. The location of the
hole recited in the Claim itself (Ex. A, ¶ 3) and in Claimant’s
verified bill of particulars (Ex. B, ¶¶ 4-5), likewise, appear to lack
some precision and consistency. The three witnesses were unequivocal in their
testimony, however, that Claimant’s exhibits depict the hole into which
she stepped. Claimant and Ms. Pritchard said that they had not seen the hole
before the accident. Claimant estimated that the hole was 7 to 8 inches deep
and 11 inches wide (see Exs. 5-6). Claimant and Ms. Pritchard agreed
that players ran onto and off the field, including to and from the outfield,
between innings of the game and that none of them mentioned the existence of a
Claimant and Ms. Pritchard agreed that the field was not well manicured like a
professional playing field and that grass was mixed with the dirt in the infield
area (see Exs. 3 and 8). Mr. Jones testified that “far, far away
it [the field] looked good but, when you get up on it, it’s half dirt and
half grass.” Claimant said it was hard to see the hole because of the
grass growing around it. Mr. Jones concurred, noting that he “really had
to look for the hole” when he returned to take photographs on September
11, 2006, and that it took him about 10 minutes to locate it. The witnesses
also agreed that the grass was the same length on the day of the accident as it
is depicted in Exhibits 3 and 8.
The testimony of the two Parks employees, Ms. Somma and Mr. Mason, also is in
broad agreement. Ms. Somma believed she learned about the Claim a week or two
after it was served on the Attorney General in late October 2006 (see Ex.
A). She testified that Parks searched its records for patron accident reports,
police reports, and any other documents. It found no reports concerning this or
any other injury occurring on Field One.
On November 17, 2006, Ms. Somma searched the grassy area of the playing field
behind second base cited in the Claim for signs of any possible dangerous
conditions (see Ex. A). She photographed the only condition she observed
that day, a slight depression in the grass approximately 50 feet behind second
base (see Ex. D). She did not see the hole depicted in Exhibit 4, or any
other holes. She said that the condition depicted in Exhibit 8 was not the same
general area as the depression she found. Claimant confirmed that the area
depicted in Exhibit D is not the area where she fell and is unrelated to her
Mr. Mason also checked Field One in November, 2006 after Ms. Somma apprised him
that an injury had occurred and there might be a hole in the outfield, near
second base. When he did not find a hole there, Mr. Mason testified that he
walked from home plate around the infield, and then around the entire outfield.
He did not find any potholes on the playing field, though he did see some
depressions. Mr. Mason said that the area depicted in Exhibit 8 was part of the
area he walked through. He agreed that he did not see the hole depicted in
Exhibits 3 and 4 during his inspection. He did see a couple of depressions in
the outfield, like the one depicted in Exhibit D, but was not sure that he saw
that particular condition.
Mr. Mason testified that Field One is used both by day patrons as well as
softball leagues. Leagues utilize the field two to four times a week during a
summer season that typically runs until the end of August. In addition, in some
years, a weekend autumn league also plays there. He did not remember, however,
if an autumn league operated in 2006.
Mr. Mason testified that Field One receives daily routine maintenance for
litter removal and general cleanliness when the park is opened each morning.
Garbage is collected several additional times during the day, as needed. The
field typically is groomed several times a week during the summer league season
by dragging mesh mats attached to little carts across the infield. Grass is cut
every week or two, more often if weather conditions and grass growth so warrant.
Both rider mowers and push mowers are used to cut the grass.
The park usually employs four to seven permanent staff, as well as 10 to 15
seasonal employees. There are no written procedures to govern maintenance of
the softball field. However, Mr. Mason stated that any staff members that saw a
hole on the field, first would block the location to prevent people from
tripping or hurting themselves. Next, they would report the condition either to
Mr. Mason or to one of his supervisors. Then, if it was a simple problem, they
would take immediate corrective action. He testified that employees would
follow those steps with respect to a hole like the one depicted in Exhibit 4 and
would probably fill the hole themselves. No written record of the condition
would be kept unless it was needed to prepare a maintenance work order, such as
for a burst pipe.
Mr. Mason testified that the park office is located about one-quarter mile from
Field One. The office is open from sunrise until an hour before sunset every
day during the months of April through the beginning of November. Patrons can
file complaints at the park office. If one presented with an injury, a patron
accident report would be prepared, police would be notified and a police report
would be prepared and, if necessary, an ambulance called. Mr. Mason said there
had been no complaints about holes on the playing field in September 2006 and he
was not aware of anyone filing an accident report at that time. No such reports
were generated in connection with the accident on September 9, 2006. Neither
Claimant, Ms. Pritchard, nor Mr. Jones filed a complaint or accident report at
the park office, either on the day of the accident, or when they returned to
take photographs two days later. Claimant had no knowledge of any other member
of her congregation having done so.
The State has a duty to maintain its facilities “in a reasonably safe
condition in view of all the circumstances, including the likelihood of injury
to others, the seriousness of the injury, and the burden of avoiding the
risk,” with foreseeability constituting the measure of liability (Basso
v Miller, 40 NY2d 233, 241 , quoting Smith v Arbaugh’s Rest.,
469 F2d 97, 100, cert denied 412 US 939 ; see Miller v State
of New York, 62 NY2d 506, 513 ; Preston v State of New York, 59
NY2d 997, 998 ). That duty extends to recreational users of State lands
(Spink v State of New York, 6 Misc 3d 1025[A] [Ct Cl
2005]). The State, however, is not an insurer of the safety of those who
enter upon its premises, and negligence cannot be inferred solely from the
occurrence of an accident (Tripoli v State of New York, 72 AD2d 823 [3d
Dept 1979]). The State is “not required to provide a terrain that [is]
perfectly level” (Scaduto v State of New York, 86 AD2d 682, 683 [3d
Dept 1982], affd 56 NY2d 762 ).
“Whatever kind or degree of negligence is asserted, it is always the
Claimant’s burden to show that the State was negligent in the first
instance ...” (Melkun v State of New York, Ct Cl, Claim No.
106432, June 27, 2007, Scuccimarra, J. [UID No. 2007-030-031]; Carlo v State
of New York, 13 Misc 3d 1222[A] [Ct Cl 2006], affd 51 AD3d 618 [2d
Dept 2008]). To establish a prima facie case of negligence, Claimant
must demonstrate by a preponderance of the credible evidence that: (1) Defendant
owed Claimant a duty of care; (2) a breach of that duty; and (3)
Defendant’s breach of that duty was a substantial factor in the events
that caused the injury suffered by Claimant (see Derdiarian v Felix Contr.
Corp., 51 NY2d 308, 315 ; Donohue v Copiague Union Free School
Dist., 64 AD2d 29, 32-33 [2d Dept 1978], affd 47 NY2d 440 ;
Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10,
In order to establish a breach of that duty in a slip and fall case, it is
incumbent upon Claimant to establish that: (1) a dangerous condition existed;
(2) Defendant either created the dangerous condition or had actual or
constructive notice thereof and failed to alleviate the condition within a
reasonable time; and (3) such condition was a substantial factor in the events
that caused the injury suffered by Claimant (see Gordon v American Museum of
Natural History, 67 NY2d 836, 837 ; Medina v Sears, Roebuck &
Co., 41 AD3d 798, 799 [2d Dept 2007]; Borenkoff v Old Navy, 37 AD3d
749, 750 [2d Dept 2007]; Ligon v Waldbaum, Inc., 234 AD2d 347 [2d Dept
1996]; Bernard v Waldbaum, Inc., 232 AD2d 596 [2d Dept 1996]).
With respect to dangerous or defective conditions, there is no minimal
dimension test or per se rule that a defect must be of a certain minimum
height or depth in order to be actionable. Rather, it is generally a question
for the trier of fact to determine whether such conditions exist based upon
“facts presented, including the width, depth, elevation, irregularity and
appearance of the defect along with the ‘time, place and
circumstance’ of the injury” (Trincere v County of Suffolk,
90 NY2d 976, 978 , quoting Caldwell v Village of Is. Park, 304 NY
268, 274 ).
Upon consideration of all the evidence, including a review of the exhibits and
listening to the witnesses testify and observing their demeanor as they did so,
the Court finds that Claimant has failed to meet her burden, and has not
established by a preponderance of the credible evidence that Defendant was
negligent in connection with her fall at Field One. Each of the witnesses
provided credible and forthright testimony.
As an initial matter, the Court concludes that Defendant owed a duty to
Claimant to maintain Field One in a reasonably safe condition since it was
foreseeable that this park patron would engage in recreational activities on a
softball field provided and maintained for that purpose. Next, in considering
whether or not the State breached that duty, the Court is satisfied that the
hole depicted in Claimant’s exhibits is the one into which she stepped.
Any confusion about estimated distances notwithstanding, the Court credits the
credible, unequivocal and emphatic identification of the hole provided by
Claimant, her sister and her father. Further, the Court concludes that a hole
of such magnitude, located in the outfield of a softball field, constituted a
dangerous condition under the circumstances of this Claim. Moreover, and as
noted above, Defendant does not contest that Claimant had an accident on Field
One on September 9, 2006, and her uncontroverted proof establishes that the hole
was the substantial factor in the events that resulted in her injury.
In order to prove that Defendant breached its duty to Ms. Jones, however, it is
Claimant’s burden also to prove that the State had notice that a dangerous
condition existed. The Claim fails because the record is insufficient to
establish by a preponderance of the credible evidence that Defendant had such
notice that the hole existed.
There is no evidence that Defendant created the hole. Likewise, there is no
evidence that the State had actual notice of the hole. Ms. Somma and Mr. Mason
each testified that they could find no record of accidents, injuries or
complaints about holes on Field One, including, specifically, any such records
or reports concerning the accident that forms the basis of this Claim. Indeed,
Claimant and her family testified that they themselves did not notify the park
office about her accident and had no knowledge that anyone else did.
Moreover, Claimant failed to establish that the State had constructive notice
of the hole’s existence. “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 [D]efendant’s employees to discover
and remedy it” (Gordon v American Museum of Natural History, 67
NY2d 836, supra at 837; see Deveau v CF Galleria at White Plains,
LP, 18 AD3d 695 [2d Dept 2005]).
In this instance, the record is clear that the hole was neither visible nor
apparent. To the contrary, it was very difficult to see until one was right on
top of it. Claimant’s father needed 10 minutes to find it even though he
was consciously searching for it and knew its general whereabouts (see
McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993] [hole not
readily visible where chief park ranger and son searched for four to five
minutes on hands and knees before finding it]). There is no evidence that
anyone saw it prior to the accident (see Bernard v Waldbaum, Inc., 232
AD2d 596, supra). None of the other players mentioned the defect to the
Jones family, which at least suggests that they had not seen it either.
Likewise, there is no evidence that park staff observed the hole even though
they had occasion to be at Field One almost every day, if not on a daily basis.
In that regard, the Court notes that, while the photographic exhibits illustrate
that the grass was scraggly with many bald spots, neither was it overgrown.
They corroborate Mr. Mason’s testimony that the grass was cut and the
field was groomed regularly. Thus, the Court determines that the hole was not
hidden on account of inattention to the grass on the part of the State.
Similarly, no evidence was presented as to the origins of the hole, or how long
it had existed (see Tripoli v State of New York, 72 AD2d 823,
supra; see McMullen v State of New York, 199 AD2d 603, supra
at 603- 604). In its review of the photographic exhibits, the Court could
discern no grass growing out of the bottom or sides of the hole (see McMullen
v State of New York, 199 AD2d 603, supra at 604; Nado v State of
New York, 161 Misc 2d 178, 179-180 [Ct Cl 1993], affd 220 AD2d 397
[2d Dept 1995]), or any other marker that might support a conclusion that the
hole had existed for a sufficient period of time such that the State could have
and should have acted to remedy the defective and dangerous condition (Pennie
v McGillivary, 15 AD3d 639 [2d Dept 2005]; Skier v City of New York,
289 AD2d 474 [2d Dept 2001]; McDuffie v Fleet Fin. Group, 269 AD2d 575
[2d Dept 2000]).
Accordingly, the Court determines that Claimant failed to establish by a
preponderance of the credible evidence that Defendant was negligent in
connection with her Claim and the Claim is dismissed. All motions and
cross-motions are denied as moot. All objections upon which the Court reserved
determination during trial are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
Albany, New York
HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims
.All quotations not otherwise attributed are
taken from the electronic recording of the trial.