State not liable after trial for claimant's slip and fall on an easily avoidable patch of ice on a winter day, and any resultant injury. Theory of claimant's case that State of New York created the condition by allowing piles of ice-shavings from the Zamboni from nearby skating rink to accumulate, melt, and drain onto the gravel path that claimant walked over flawed. No evidence of the size of any ice shavings pile, or that any pile of ice shavings drained toward the subject area.
|Claimant(s):||KUISUN PARK and KILHONG PARK|
|Claimant short name:||PARK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||JOEL L. GETREU, P.C.
BY: WILLARD G. LaFAUCI, ESQ.
|Defendant's attorney:||HON. ANDREW M. CUOMO, ATTORNEY GENERAL
OF THE STATE OF NEW YORK
BY: JYOTSNA GORTI, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||November 9, 2010|
|See also (multicaptioned case)|
Kuisun Park and Kilhong Park(1) allege in their claim that on February 9, 2006 Kuisun Park was injured when a negligently maintained pathway at Bear Mountain State Park contained ice and/or snow, causing her to slip, fall and suffer injury. This decision relates only to liability, after a bifurcated trial was held on the matter and review of post-trial memoranda of law.
Kuisun Park testified through a Korean interpreter that on February 9, 2006 she and several friends had gone to Bear Mountain State Park to go hiking, arriving at approximately 8:00 a.m. She had been there on previous occasions for hiking as well. There had been no rain or snow during the first week of February that she could recall, and the weather was clear. This was significant to claimant because the expectation was that the roads or trails would be easier to traverse. She wore "mountain climbing sneakers"(2) and used hiking poles. They planned to hike up the mountain, and knew a gravel path heading toward Hessian Lake to be an access area to trails.
After parking the car, they walked from the parking lot, on the paved, blacktopped area surrounding the ice-skating rink. The rink building itself is surrounded by a black fence. To the right of the building, fence, and paved area, there was a large pile of snow. Other than the snow pile adjacent to the rink that she observed, there was no other snow and ice. She and her friends walked over the gravel path area (where she later fell) without incident.
Realizing she forgot her gloves, she returned to the car parked in the parking lot, walking over the gravel path - including the area over which she later fell - and the blacktopped paved area. She did not observe any ice on the trip back to the car, nor did she fall. When she returned from the car across the paved path, and along the gravel path again, still carrying her hiking poles and wearing the same boots, she said she "was walking, just looking forward," and "on the top I slipped."
After she fell, she noticed there was ice underneath her. She assumed that the ice that was located where she fell, was from "water becoming frozen", saying: "apparently the water was there because it was early in the morning it was frozen, but during the day the water usually melted." As to where the "frozen water" came from, she did not observe it. She did observe large piles of snow outside the skating rink, from the "ice shavings." After she fell, she said she did not move from the spot where she fell, and where she was ultimately found and assisted by Police Officer Michael Pavelock and Park and Recreation Supervisor David Krueger.
Asked to review several photographs, Ms. Park concurred with a marking made by Officer Pavelock on Exhibit 5 [original photograph is Exhibit D] as showing where she fell, and also noted that other photographs, including one she took in April 2006 [Exhibits A, A-1] fairly and accurately depicted the condition on the gravel walkway. During cross-examination the absence of any "white material" in Exhibit 5 [original is Exhibit D] on significant portions of the gravel walkway was also acknowledged. This white material was later identified by other witnesses as a small patch of ice. Asked why she did not walk on the part of the path that did not contain the white material shown on Exhibits 5 and D, she repeated "I was walking, just looking forward" but "not looking at my immediate feet as I walked."
On cross-examination she acknowledged that during her deposition she had responded differently to questions concerning her awareness of the surface upon which she was walking. Notably, during her deposition she said that she was looking at the ground as she was walking, had concluded it was not that slippery, but also admitted that there was an area to walk that was free of ice, and she chose to walk in an area that looked slippery.
Exhibit 4, a photograph which shows the very end of the skating rink fence and paved area, and the gravel path rising to a crest as the path heads toward Hessian Lake, was shown to claimant. Unlike the witnesses who found her after she fell, Officer Pavelock and Mr. Krueger, Ms. Park marked the top of the crest shown in Exhibit 4 as the spot where she fell. She later conceded that the photograph did not show where she fell because the spot was below the crest rather than at or before it, saying it was "beyond the hilly path." [See id.].
Similarly, Exhibit 2 is a photograph taken from the opposite direction from the gravel path looking toward the skating rink. The path rises up to the crest apparently shown in Exhibit 4, dips down, and then rises up again to the paved area and the skating rink. Ms. Park said that Exhibit 2 does not show where she fell because it was further along the gravel path away from the rink toward the lake, just below the area depicted in the photograph.
It appears that it was on her return visit in April 2006 that she drew a conclusion that two months earlier snow piles from the ice shavings from the Zamboni were what had melted, flowed down to the gravel area where she walked, and then refroze.
On further cross-examination, she again confirmed that she and her friends planned to hike on trails through the woods, up the mountain, yet had not been expecting snow or ice on the trails, despite the fact that it was February. The exact degree of her expectation was not quite clear, however, likely because of a language barrier. She recognized however, that snow or ice in winter could melt, freeze, and melt again and that it was cold that morning.
For the balance of claimant's direct case, portions of the deposition testimony of Officer Michael Pavelock and Mr. David Krueger were read into the record. During Officer Pavelock's deposition, the officer marked the location where Ms. Park was found on a photocopy [Exhibit 5] of a Polaroid photograph Officer Pavelock took on the day of the accident [Exhibit D], with a small, dark circle, and placed his own initials to the right in another circle. This was the location claimant herself concurred was where she fell when presented with the same photograph. [Exhibit 5]. He did not know why one area of the path depicted in the photograph was icy, and why the rest was not. He also took a Polaroid photograph of the gravel path going down toward the lake at the same time. [Exhibits E (original) and 6 (photocopy)].
During Mr. Krueger's deposition, it was confirmed that in a photograph taken from a distance across a grassy field, showing the parking lot to the left, the skating rink building in the center, and a small pile of snow on the right from Zamboni shavings clearing the ice-skating rink. [Exhibit 1]. During his deposition, and on this same, distant photograph, Mr Krueger marked generally where Ms. Park was found, to the right of the small snow pile depicted. [See id.]. He also testified then that he did not know where the Zamboni pile would drain, but thought it would simply melt and be absorbed into the grass.
Mr. Krueger was also shown Exhibit A, the photograph taken by claimant in April 2006, during his deposition. He remarked then that he did not know why the one area on the path would have ice, and the rest would be free of ice, except that generally grassy areas warm more quickly, whereas dirt areas do not. He also said during his deposition that to his knowledge there was not any percolating ground water in the area where the photograph [Exhibit A] had been marked as containing ice.
Thereafter, claimant rested, and defendant moved for dismissal of the claim, asserting that claimant had failed to establish prima facie that the State of New York should be held liable for Ms. Park's unfortunate, slip, fall and injury.
As a landowner, the State has a duty to use reasonable care in maintaining its land in a reasonably safe condition. See Basso v Miller, 40 NY2d 233 (1976); Preston v State of New York, 59 NY2d 997 (1983). The State, however, is not the insurer of the safety of those who enter upon its lands, and the mere occurrence of an accident does not establish negligence. Tripoli v State of New York, 72 AD2d 823 (3d Dept 1979). In order to establish a prima facie case claimant was required to show that the State either created a dangerous condition, or had actual or constructive notice of a dangerous condition, failed to remedy it in a reasonable period of time, and that claimant's slip and fall and resulting injury were proximately caused by such omissions.
The primary theory of claimant's case is that the State of New York created the condition by allowing piles of ice shavings from the Zamboni to accumulate, melt, and drain onto the gravel path that claimant walked over. The theory is flawed, however, because there was no evidence of the size of any ice shavings pile, or that any pile of ice shavings drained in the subject area, indeed, the opposite seemed to be shown. The evidence showed that there were significant topographical variations from the area where the ice shavings might have been piled (although again exactly in what volume and where such pilings were relative to the gravel path was not established on claimant's direct case), and the area where claimant fell. Gravity and the composition of the terrain between where the alleged snow pile was and where claimant fell, more likely than not meant that any melting would occur in a different location. Additionally, different ground composition could also have an effect on any melt rate, as mentioned in passing by Mr. Krueger at his deposition.
Moreover, even if the condition was created, the fact of melting snow, ice, and cold winter conditions generally, coupled with the testimonial and contemporaneous photographic evidence [Exhibits 5 and 6] showing a gravel pathway primarily free of any snow or ice, such that a reasonable walker could have readily avoided same, such condition is not "dangerous" in the sense of imposing State liability in negligence.
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) 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. See Green v State of New York, 222 AD2d 553, 554 (2d Dept 1995);(7) Byrd v State of New York, 206 AD2d 449, 450 (2d Dept 1994).(8)
The additional trial testimony by Officer Pavelock and Mr. Krueger, who both had been working in the park for several years at the time of the accident, confirmed what appeared to be the case from the photographic evidence, that the portion of the gravel path immediately after the paved area as it headed toward the lake, made a "dip down", then rose to a slight crest, and then after the crest proceeded generally down again, as shown with selective clarity in the photographs. [See e.g. Exhibits 1, 2, 4, 5, 6, A, A-1, D, E]. All witnesses, including Ms. Park, Officer Pavelock, and Mr. Krueger, placed claimant's fall where topography suggests that melting snow from the snow pile created by ice shavings from the Zamboni (a pile of uncertain height or width at the time of the accident in any event) would have been required to move up hill to be the source of any melted ice on the portion of the gravel path where Ms. Park fell.
Officer Pavelock testified that he responded to the call of someone being injured at approximately 9:15 a.m. on the morning of February 9, 2006. A police incident report memorializes the event. [Exhibit C]. When he arrived at the scene, Ms. Park was lying on the right side of the gravel path. A small section of ice could be seen where she lay. What puzzled both Officer Pavelock and Mr. Krueger was how claimant slipped and fell on the gravel path where she did since most of the area, but for this very small section, was completely clear of snow and ice, and it was "a clear visibility day." Officer Pavelock himself had seen the ice from 20 feet away. The photographs he took at approximately 10:25 a.m. fairly and accurately depicted the area of claimant's fall and shows the absence of any ice over significant portions of the gravel path. [Exhibits D, E, 5, 6].
Officer Pavelock further explained that while he had never "used a level" to measure the relative topography of the area (as suggested by claimant's counsel), he walked the area regularly, and knew the configuration.
Similarly, Mr. Krueger testified that he, too, responded to the scene at approximately 9:15 a.m., saw Ms. Park lying down in the same location attested to, on a pathway primarily free of snow and ice, as depicted in the contemporaneous photographs taken by Officer Pavelock. [See Exhibits 5, 6, D, E]. Mr. Krueger wrote his report that same morning. [Exhibit B].
Both Officer Pavelock and Mr. Krueger testified that there had never been any prior complaints to their knowledge about snow and ice on the gravel pathway behind the skating rink, in the three or more years that each had been working at Bear Mountain State Park.
Finally, Ms. Park had walked on the gravel area twice before she fell on the return from the parking lot, and her friends had walked on the same area without incident at least once.
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 offered on Claimant's direct case, and on Defendant's case as well, including listening to the witnesses testify and observing their demeanor as they did so, that the State is not responsible for the claimant's slip and fall, and any resultant injury, on an easily avoidable patch of ice on a winter day. Claimant has not proven by a fair preponderance of the credible evidence that any dangerous icy condition was the responsibility of the State of New York, either because the State created the condition or should have been aware of it and failed to correct it, so as to warrant the imposition of liability upon the State of New York.
Based on the foregoing, Claim number 114667 is in all respects dismissed. Trial motions not otherwise disposed of are denied as moot.
Let judgment be entered accordingly.
November 9, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. References to claimant herein are to Kuisun Park, as the claim of Kilhong Park is derivative.
2. Quotations are to audio recordings or trial notes unless otherwise indicated.
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 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. 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."
8. 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."