State not liable after trial for claimant's trip and fall through a hole in a wooden bridge caused by a missing plank. Claimant did not show that the State either created dangerous condition, or had actual or constructive notice of a dangerous condition and failed to remedy it in a reasonable period of time, and that claimant's fall and resulting injury were proximately caused by such omissions rather than his own inattentiveness.
|Claimant(s):||ROBERT P. D'ARCY and HELEN D'ARCY|
|Claimant short name:||D'ARCY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||HENDERSON & BRENNAN
BY: JOHN T. BRENNAN, ESQ.
|Defendant's attorney:||HON. ANDREW M. CUOMO, ATTORNEY GENERAL
OF THE STATE OF NEW YORK
BY: RACHEL ZAFFRANN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||November 15, 2010|
|See also (multicaptioned case)|
Robert D'Arcy and Helen D'Arcy allege in their claim(1) that defendant's agents at Franklin D. Roosevelt State Park [FDR Park] negligently allowed a known dangerous condition to exist on one of its footbridges on July 6, 2007 - specifically a hole in the wooden bridge where a wooden plank should have been - causing Mr. D'Arcy to fall through and suffer injury on that day. This decision relates only to liability, after a bifurcated trial was held on the matter, and review of post-trial memoranda of law.
Mr. D'Arcy testified that shortly before noon on July 6, 2007 he drove to FDR Park to walk around the trails for exercise. He and his wife had lived in the area for 30 years, and he had visited the park hundreds of times before. After parking his car in Lot No. 6, he proceeded to the trail that ran from the parking lot. [Exhibit 1]. Because of his own familiarity with the park and its trail system, he knew about this path even though it was not marked out clearly to the public. On this trail is a wooden footbridge. He said that as he approached the bridge, there was high grass and other foliage on both sides. On the far end as he proceeded on the bridge, it appeared overrun with abundant vegetation. This seemed unusual based on his previous experience of well maintained trails.
As he walked, he was looking straight ahead to see his way through the foliage, did not see that a wooden plank was missing on the bridge, and stepped into the hole made by the missing plank, suffering injury. Not realizing how injured he was, he then walked back to his car, drove to the main entrance, and reported the incident to the attendant at the park office. Park Police Officers also took his report.
Mr. D'Arcy identified several photographs as fairly and accurately depicting the scene as he saw it on the day of his accident, both on the trail approaching the wooden bridge, and on the wooden bridge itself. [See Exhibits 23 - 28]. The bridge cannot be seen at all in most of these because of the lighting in the photographs, but Mr. D'Arcy said that one photograph of the bridge [Exhibit 28] fairly and accurately depicted the way the bridge looked on July 6, 2007, except that he did not see any yellow warning tape strewn over the bridge (somewhat visible in this photograph, despite its lack of clarity), and said there was "more foliage" [T-23]. He did not see the signs of removal of any warning signs, which a later witness said had been placed to bar entrance to the bridge some weeks earlier. Shown a clearer photograph of the actual bridge, Mr. D'Arcy said that it was fair representation of the bridge on that day, except that the foliage had been more abundant toward "the end of the bridge and there was no sign of … any … caution ribbon" [T-26] (clearly visible in the photograph). [See Exhibit 2].
Finally, claimant also found far clearer photographs, taken by the State's witness Elizabeth O'Loughlin, on the day of the accident, to also fairly and accurately depict the scene of the accident, but for the presence of caution tape. [Exhibit 19]. Successive photographs taken on the day of the accident by Ms. O'Loughlin, showing the view as a walker would progress toward the bridge, show an overgrown access point, two upright planks at the entrance, effectively narrowing access to the bridge, and yellow caution tape strewn at the near and far ends of the bridge. [See Exhibits 20, 21]. The entry point Mr. D'Arcy testified to utilizing that day is not welcoming. The grass path leading to the bridge is overgrown [Exhibit 19], and the immediate entrance to the bridge is similarly overgrown, and shows the bridge as overgrown with foliage at both ends. [Exhibit 20]. There is caution tape everywhere, and something amiss at the far end of the bridge (the missing plank). [See id.]. Exhibit 21, a photograph taken from the far end of the bridge closer to the missing plank, shows heavier, overhanging foliage commencing after the missing plank. Finally, a photograph taken from the perspective claimant would have had that day as he walked on the bridge, just four planks before the missing plank, very clearly shows no foliage on the entire right side of the bridge, where the hole appears, torn up caution tape, and a noticeably missing plank. [Exhibit 5].
Elizabeth O'Loughlin, the acting park manager for FDR Park on July 6, 2007 testified at trial. Her deposition testimony was submitted as well. [Exhibit 33]. She was the park manager at FDR park from 1999 until September 2008, and had worked in that park and others since 1990. She said that as the park manager, it was her responsibility to oversee park maintenance among other duties. In mid-June 2007, she became aware that the"pool bridge" - where claimant's accident occurred - was missing a plank. [T-74]. She inspected the bridge at that time and, in part because there was no plank the precise size of the missing one in-house, and also because of her concern that the entire bridge should be inspected with an eye toward determining whether it was structurally sound overall, rather than placing a plank of the incorrect size in the spot, she directed that the bridge be closed to the public. To effectuate such closure, the park staff wrapped the entire bridge in yellow caution tape, and nailed 2' x 4" or 2' x 6" planks to each side of the bridge with signs thereon saying "bridge closed." [T-79]. Ms. O'Loughlin said there was no rule or regulation requiring that the missing plank be replaced, rather than closing the bridge to the public. Indeed one concern was a "patch job" were the wrong sized planks to be used, causing its own hazards.[T-76].
Later that day in June she returned to the bridge to confirm that the bridge had been closed as directed. On one other occasion before the date of the accident - although she could not recall precisely when - she had returned to confirm the barrier was up. [T-82]. Additionally, Ms. O'Loughlin said that she was able to see the bridge - specifically the south end of the bridge entered by Claimant - from the road she took on her daily commute, and noted as she drove by several times per day in the weeks following that the barrier was still up. [T-84].
Ms. O'Loughlin testified that between the mid-June 2007 closure of the pool bridge, and the claimant's accident on July 6, 2007, no employees or visitors had reported anything amiss with the barrier across the pool bridge. [T-88].
On July 6, 2007, Ms. O'Loughlin received notice via the park radio that there had been an accident at the park. She was having lunch at the time, in her home just outside the park. When she arrived, claimant had already left in an ambulance. After speaking with the park personnel who had spoken to claimant, Ms. O'Loughlin went to the bridge, saw that the wooden barriers that had been placed on either side of the bridge had been taken off, and tossed in surrounding vegetation, and that the caution tape had been ripped off and strewn about as well. She took photographs of what she saw. [Exhibits 19, 20, 21, 22, 5, 6, ]. No foliage had been cut or altered in any way when she took the photographs, nor had the caution tape been moved.
Ms. O'Loughlin acknowledged that she had not given a specific instruction to park personnel to inspect the bridge after it had been closed off in mid-June, and that she and her employees were responsible for maintenance at the park. She reiterated, however, that all park employees kept their eyes out for problems, and she herself, as noted above, drove by the area several times daily, and had never noticed (although the area was visible from her car) that the materials closing off the pool bridge had been removed. In her many years of experience at this park, vandalism had not been a problem.
She also acknowledged that to replace the 2' x 8" missing plank, a 2' x 6" plank could "possibly" have been used [T-124], but would leave gaps. She could not say whether they had 2' x 6" planks at the time, and could not recall the size of the planks used to block off the bridge with the warning signs. Although counsel for claimant showed Ms. O'Loughlin a photograph of one of the planks used to block the bridge, it is unclear from the photograph, as it was to the witness, what is the width or length of the plank. [See Exhibit 8]. Ms. O'Loughlin reiterated that using the wrong size wood "was not a good solution," based upon her "nearly 10 years" experience in park management. [T-128-129].
Deposition testimony of Matthew Driver, a park manager assigned to FDR Park who reported to Ms. O'Loughlin, was submitted. [Exhibit 32]. His testimony confirmed the general testimony of Ms. O'Loughlin that the park staff was responsible for maintenance of the park, including the footbridge, and that during the month of July the park was frequented by thousands on a daily basis. He was not present on the day of the accident, and was not aware that there was a missing plank on the wooden footbridge prior to the date of the accident. He confirmed Ms. O'Loughlin's testimony that there was not a specific instruction to park personnel requiring them to walk in the vicinity of the pedestrian footbridge, but rather a general practice of looking for anything that might be a safety concern.
No other witnesses testified.
Discussion and Conclusion
Although the State has a duty as does any landowner 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)], to protect against foreseeable risks of harm. The State "must act as a reasonable man in maintaining his property 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." Preston v Miller, 59 NY2d 997, 998 (1983). Measured against that standard, the State was found liable for the plaintiff's injuries in Preston, when he was injured as a result of tripping and cutting himself on a jagged pipe protruding from a lagoon which the State held open as a swimming area. Because the State had neither inspected or removed hazards, or posted warning signs to advise the public of the hazardous condition, liability was found, because no actions to safeguard the public had been taken.
"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).
The State, however, is not the insurer of the safety of those who enter upon its lands, and the mere happening of an accident does not establish negligence. Tripoli v State of New York, 72 AD2d 823 (3d Dept 1979). In its public parks particularly, it is reasonably safe access that is offered, not perfect paths and byways. In order to establish a prima facie case, claimant is required to show that the State either created a dangerous condition, or had actual or constructive notice of a dangerous condition and failed to remedy it in a reasonable period of time, and that claimant's fall and resulting injury were proximately caused by such omissions.
"Resolution of the issue of breach of duty requires a factual weighing of the severity of potential injuries against the burden on the landowner to avoid the risk . . . (citation omitted). Here, the potential for severe injuries from a fall from the rope onto sharp, jagged rocks is obvious. Further, the risk could have been avoided by the simple expedient of cutting the tree down. In the face of these facts, the State's actions in simply posting signs and occasionally cutting down the rope were insufficient to fulfill its duty of care" Mesick v State of New York, 118 AD2d 214, 217-218 (3d Dept 1986) lv denied 68 NY2d 611 (1986); cf. Elwood v Alpha Sigma Phi Iota Ch. of Alpha Sigma Phi Fraternity, Inc., 62 AD3d 1074, 1076-1077 (3d Dept 2009)(2) lv denied 13 NY3d 711(2009); see also Groom v Village of Sea Cliff, 50 AD3d 1094 (2d Dept 2008); (3) Doyle v State of New York, 271 AD2d 394, 395-396 (2d Dept 2000).(4)
The State is not liable in negligence only because it chooses one means over another to neutralize a potential danger, or even if it chooses not to act to prevent a remote harm. Such choices do not alone establish that it acted without reasonable care. Thus, the defendant was not found liable, and had not
"maintain[ed] its property in an unreasonable manner [when it] did not light the side chambers within the caissons of the Tappan Zee Bridge and left floor openings uncovered; [although] [i]f an accident were to occur. . . any potential injury would likely be serious . . . likelihood of such an injury occurring was minimal given the infrequency with which these chambers were accessed, once every two years, and the burden to the Thruway Authority of modifying all of the chambers in all of the caissons would have been substantial." Toms v State of New York, 18 AD3d 865, 866 (2d Dept 2005).
As noted, a claimant's own familiarity with an area plays its part, and may include the assumption of risk. Morgan v State of New York, 90 NY2d 471, 484 (1997); cf. Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 607-608 (3d Dept 2003). "[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation." Morgan v State of New York, supra at 484. The awareness of a risk is " 'not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff' (citation omitted)." Id. at 486. By the same token, one who participates in a recreational activity is not "deemed to have assumed the risks of . . . (citation omitted) concealed or unreasonably increased risks." Id. at 485.
Finally, for an act of a third party to constitute a superseding cause sufficient to relieve an otherwise negligent defendant from liability, it must be so extraordinary in nature, or so attenuated from the defendant's own wrongful acts or omissions that defendant is not fairly found responsible for injury to a claimant. Cf. Alomia v New York City Tr. Auth., 292 AD2d 403, 405 (2d Dept 2002).(5) It is a matter of proximate cause. See e.g. Megally v LaPorta, 253 AD2d 35 (2d Dept 1998).
It is noted that the Court does not find that any governmental immunity considerations apply in this context of public park maintenance, although such immunity is argued by defendant. [See Defendant's Post-Trial Brief, Page 16]. The State's role as a landowner has long been found to be a proprietary one, that may subject it to liability in negligence just as any landowner may be found liable for same.
"As succinctly reviewed by Judge Judith A. Hard in Signature Health Ctr., LLC v State of New York, (28 Misc 3d 543 . . . , in footnote 4, at 547). Governmental functions of the State and its subdivisions are to be distinguished from proprietary functions, in which the government engages in activities that are 'traditionally private enterprises' (Sebastian v State of New York, 93 N.Y.2d 790, 793  ). When engaged in proprietary endeavors, the governmental entity is generally subject 'to the same duty of care as private individuals and institutions engaging in the same activity' (Schrempf v State of New York, 66 NY2d 289, 294 ). Defendant's interpretation of McLean [12 NY2d 194] would potentially foreclose any State liability for any act found to be ministerial or discretionary, in the absence of the special duty exception, including all proprietary functions." Quackenbush v State of New York, 2010 WL 4157299 (NY Ct Cl., 2010).
Measured against the foregoing principles, and after considering all the evidence offered including the witnesses' testimony, allowing the Court to assess their credibility and demeanor as they testified, the Court finds that the claimant has failed to establish a basis for holding the State of New York liable for his unfortunate accident.
After becoming aware of the dangerous condition of the bridge, state employees chose to close the bridge to the public, utilizing then available materials including planks of unidentified size to block access from either end, a written sign indicating "bridge closed" and, in addition, wrapped yellow caution tape all around the bridge. Although not inspected daily "officially", the park manager's testimony is credited, wherein she said that from her vantage point as she drove the park road at least once daily, and likely more often given the concentration on getting the pool open for summer and the concentrated activity at that end of the park, she noted that the bridge closing measures appeared in place, for the three weeks prior to claimant's accident. Additionally, there was no reason to think that the measures taken would be vandalized, as experience at this park had also shown that vandalism, generally, was not a problem. No complaints about the bridge, no accidents - including over the very busy July 4 weekend - gave notice to the State that the measures taken to close the bridge to the public had been removed by vandals.
Having elected one of several possible means of making the way safe for the visiting public three weeks before claimant's accident does not render the State liable in negligence, absent some further notice of a dangerous condition, that is, notice that the measures taken to neutralize the danger had been vandalized. No evidence was offered to establish how long the wooden bridge was not blocked off, in order to more significantly establish that the State was aware or should have been aware that its precautions were gone, and needed to be repaired.
Moreover, upon review of all the evidence, including the contemporaneously taken photographs, the way the bridge appeared on the day of the accident was a warning in itself to the wary walker. There was no evidence that Mr. D'Arcy suffered from some sight impairment that prevented his being able to see there was yellow caution tape everywhere, or to see that this overgrown wooden bridge had an 8" wide hole, easily stepped across had he been more attentive to his path.
Accordingly, claimant has failed to establish by a preponderance of the credible evidence, any basis for finding that the State of New York was negligent.
Based on the foregoing, claim number 114244 is in all respects dismissed.
Let judgment be entered accordingly.
November 15, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. The claim of Helen D'Arcy is a derivative one, thus the term claimant refers to Robert D'Arcy, unless the context requires otherwise.
2. Drunken student fell into gorge on private property. Summary judgment dismissing claim. Deposition testimonies of defendant's president, adviser and members did not contain any "admission that visitors, guests or nonmember college students were reasonably foreseeable users of the areas of its somewhat secluded premises that are close to the gorge. In fact, those persons testified that the areas along the side and rear of the house were only rarely used and then only by fraternity members who, of course, would be well aware of the location of the gorge. In addition, our review of the record discloses no evidence that there ever had been guests, whether invited or uninvited, in these areas. Further, there is no evidence that anyone had ever trespassed on these areas prior to decedent's accident, that there were any prior accidents caused by the proximity of these areas to the gorge or that defendant's fence had ever failed to prevent anyone from inadvertently reaching the edge of the gorge."
3. Defendants established their entitlement to summary judgment dismissing lawsuit by demonstrating that the allegedly slippery condition of the moss-covered portion of concrete groin where minor child slipped and fell at beach, was open and obvious and inherent or incidental to the nature of the property and could be reasonably anticipated by those using it.
4. After trial claim dismissed. Claimant was "congregating" with other young people after midnight on an elevated plateau at a park that had closed at dusk. After seeing headlights from an oncoming motorcycle, he ran toward the edge of the plateau and either tripped or jumped over a stone wall surrounding the plateau that was 18- to 20-inches high, falling 16 feet to the ground on the other side of the wall. "The sign indicating that the park closed at dusk was readily apparent to visitors who entered the park and proceeded on the path up to the plateau, as was the danger of falling over the cliff at the edge of the plateau. The upper plateau was bordered by a stone wall . . . which demarcated the edge of the elevated area. Moreover, the plaintiff was acquainted with the area and knew that he was on an elevated plateau when he ran toward the edge. There was no latent danger and the defendant had no duty to warn of a dangerous condition."
5. Truck driver's "act of striking the support cables with his truck [was] not a superseding cause of the plaintiffs' injuries. 'An independent intervening act may constitute a superseding cause, and be sufficient to relieve a defendant of liability, if it is of such an extraordinary nature or so attenuated from the defendants' conduct that responsibility for the injury should not be reasonably attributed to them' (Gordon v Eastern Ry. Supply, 82 NY2d 555, 562). Since the plaintiffs' injuries were a foreseeable consequence of the placement of the scaffolding on a public street open to vehicular traffic, [truck driver's] act of striking the support cable was not of such an 'extraordinary nature' as to relieve [defendant], as a matter of law, from liability for a violation of Labor Law § 240 (1)."