|Claimant(s):||CHRISTINA V. CHERA|
|Claimant short name:||CHERA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Capasso & Massaroni, LLP
By: John R. Seebold, Esq.
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Michele M. Walls, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||April 5, 2010|
|See also (multicaptioned case)|
Defendant moves this Court for an order pursuant to CPLR 3212 granting it summary judgment on the ground that the Court lacks subject matter jurisdiction, or in the alternative, on the grounds that claimant assumed the risk and that defendant owed no duty to claimant. Claimant opposes the motion and requests that it be denied in its entirety. For the reasons set forth below, the Court grants defendant's motion and dismisses Claim No. 113322.
The underlying claim alleges money damages resulting from personal injuries sustained by claimant, Christina V. Chera, when she was injured while using a rope swing as a means of entering waters adjacent to the Great Sacandaga Lake on July 24, 2005.
As set forth in the Affirmation of claimant's counsel, the facts of the accident are essentially not in dispute. On July 24, 2005, claimant was severely injured when she unsuccessfully attempted to rope swing from the shoreline of the Great Sacandaga Lake into a body of water known as the Reservoir (Deposition Transcript of Claimant, dated December 18, 2008 and annexed to defendant's motion as Exhibit G, at p 30). The rope was attached to a tree which was on the shoreline and adjacent to South Shore Road in the Town of Day, County of Saratoga (Exhibit G, pp 18-22). Claimant was unable to hold onto the rope long enough for her to complete an arc which would have allowed her to swing out far enough over the water to a sufficient depth. She lost her grip of the rope and fell on a rock (Exhibit G, p 30).
Claimant testified that she had been going to the Reservoir her whole life (50-h Hearing Transcript of claimant, dated December 2, 2005 and annexed to defendant's motion as Exhibit F, at p 23). She testified that she was familiar with the fluctuation in the water level at the Reservoir (Exhibit F, pp 23-24; Deposition Transcript of claimant, dated August 12, 2009 and annexed to defendant's motion as Exhibit H, at pp 11-14). She testified that she was familiar with the shoreline of the Reservoir and that it consists of rocks, trees and sand, depending on where one is on the Reservoir (Exhibit H, pp 18-19).
Claimant had been to the actual accident scene on the two weekends prior to the date of the accident (Exhibit F, pp 19-20; Exhibit G, page 15; Exhibit H, pp 27-28). She accessed the scene by jet ski (Exhibit F, p 19; Exhibit G, p 15). On the prior two weekends, she observed the rope swing, and saw her friends rope swinging, but had not tried it herself (Exhibit G, pp 18-20). She did not witness her friends or any other person have difficulty clearing the beach area and reaching the water while rope swinging (Exhibit G, pp 24-25).
On the date of the accident, claimant arrived at the accident scene with her cousin Angela via jet ski (Exhibit F, pp 20 and 28). There were other people at the area that she did not know (Exhibit F, p 28). While at that scene, claimant observed people swimming, rope swinging and playing in the sand (Exhibit F, p 35). She and her cousin swam and sat on the beach for awhile (Exhibit F, p 36). She witnessed her friends swinging on the rope a number of times that day and thought it looked effortless (Exhibit F, p 41; Exhibit G, pp 19-20). Claimant testified that she saw people swing out and that they did not let go of the rope until they reached the part of the water that was not shallow (Exhibit F, p 44). It was her intent to do the same (Exhibit F, p 44). She described the shoreline as being washed away (Exhibit G, p 21-22).
At some point, claimant decided to rope swing. Prior to doing so, she tested her weight on the rope (Exhibit G, p 26). While on the beach, she grabbed the rope and hung onto it with her feet suspended, as she tested her ability to hold her body weight (Exhibit F, pp 50-51; Exhibit G, p 25). Claimant testified that she believed she held her weight for at least two seconds (Exhibit G, p 26). She did not wrap the rope around her hands or any other part of her body to secure her grasp prior to swinging (Exhibit G, pp 28-29). She knew she would need to hold her body weight on the rope for at least five seconds (Exhibit G, p 26). After testing the rope, she believed she had the ability to hold her weight (Exhibit G, pp 26-27). Claimant knew that to execute the swing, she had to jump horizontally from the slope (Exhibit G, p 30).
While standing at the top of the slope, claimant observed the path she would travel. She saw the beach, sand and large rocks (Exhibit F, pp 41-42, 55). She testified that she had been swimming earlier that day in the area where people had been dropping off the rope. She noticed that the lake had a sandy bottom and dropped off after about three steps (Exhibit F, pp 41-42). She was unsure of the depth of the drop off other than saying that it was over her head (Exhibit F, pp 41-44). She grabbed the rope and swung out (Exhibit F, pp 50-51; Exhibit G, p 25). She described her jump as horizontally off the cliff with the rope in her hand and her goal being to land in the water (Exhibit G, pp 29-30). Claimant testified that she slipped off the rope after jumping (Exhibit F, pp 51-52). Neither the rope nor the branch broke (Exhibit F, pp 47-48).
There is no dispute that the State of New York owns the land upon which the accident occurred. Defendant contends, however, that because the Hudson River-Black River Regulating District controls, maintains and patrols the Great Sacandaga Lake, it is the proper defendant, rather than the State of New York, and that this Court therefore lacks jurisdiction.(1) While the Court would ordinarily address the issue of jurisdiction prior to moving onto the merits of the claim, the Court finds that even if the State of New York is the proper defendant, the claim would be dismissed based upon the stipulated facts and the doctrine of assumption of risk. Accordingly, the jurisdictional issue regarding the Hudson River-Black River Regulating District will not be addressed herein. LAW
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 ). The Court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (Barr v County of Albany, 50 NY2d 247 ). The proponent of a motion for summary judgment must make a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 ). Once the proponent of a motion for summary judgment has set forth a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 , supra; Winegrad New York Univ. Med. Ctr., 64 NY2d 851 , supra; Zuckerman v City of New York, 49 NY2d 557, 562 ). In determining a motion for summary judgment, the Court must examine the proof in a light most favorable to the party opposing the motion, here the claimant (Robinson v Strong Memorial Hospital, 98 AD2d 976 [4th Dept 1983]). A motion for summary judgment shall be supported by affidavit, a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212).
To recover in a negligence action a claimant must establish that the defendant owed him a duty to use reasonable care and that the defendant breached that duty (Turcotte v Fell, 68 NY2d 432 ). However, when a person voluntarily participates in certain sporting events or recreational activities, an action to recover for injuries resulting from conduct or conditions that are inherent in and arise out of the nature of the sport or activity is barred by the doctrine of assumption of risk (see Morgan v State of New York, 90 NY2d 471 ; Dobert v State of New York, 8 AD3d 873 [3d Dept 2004]; Cotty v Town of Southampton, 64 AD3d 251 [2d Dept 2009]). "It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" (Maddox v City of New York, 66 NY2d 270, 278 ). While the determination as to whether a claimant has assumed the risk is usually a question of fact for the jury, a Court may rule upon assumption of risk as a matter of law absent a factual controversy (see Maddox v City of New York, 66 NY2d 270 , supra).
Common law has distinguished express assumption of the risk and implied assumption of the risk. Express assumption of risk has been defined as an "agreement in advance that defendant need not use reasonable care for the benefit of plaintiff and would not be liable for the consequence of conduct that would otherwise be negligent" (Arbegast v Board of Educ., 65 NY2d 161, 169 ). Implied assumption of risk is "founded not on express contract, but on plaintiff's voluntarily encountering the risk of harm from defendant's conduct with full understanding of the possible harm to himself or herself" (Id.). In the subject case, there is no suggestion of any express assumption of risk.
In the context of sporting and recreational activities, a property owner's legal obligation to a participant is to make the conditions as safe as they appear to be (see Turcotte v Fell, 68 NY2d 432 , supra). It is well settled that the risk reasonably to be perceived defines the duty to be obeyed (Palsgraf v Long Is. R.R. Co., 248 NY 339). Defendant "has a duty to take reasonable precautions to prevent accidents which might foreseeably occur as the result of dangerous terrain on its property," but that duty does not extend to open and obvious conditions that are natural geographic phenomena which can "readily be observed by those employing the reasonable use of their senses" (see Cohen v State of New York, 50 AD3d 1234, 1235 [3d Dept 2008], citing Walter v State of New York, 185 AD2d 536 [3d Dept 1992] and Tarricone v State of New York, 175 AD2d 308 [3d Dept 1991], lv denied 78 NY2d 862 ). There is no duty to warn of an obvious danger (Caris v Mele, 134 AD2d 475 [2d Dept 1987]). A claimant is bound to see that which could have been seen by a proper use of his senses (Marmaduke v Spraker, 34 AD3d 1007 [3d Dept 2006]). A defendant is relieved of liability where, after his negligence, an unforeseeable superseding force, such as plaintiff's own conduct, intervenes which breaks the chain of causal connection and itself causes the injury (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 ; Smith v Stark, 67 NY2d 693 ).
Defendant's burden on this motion is to establish that claimant was aware of, and accepted, the inherent risks associated with rope swinging and that the conditions were as safe as they appeared to be (see Trevett v City of Little Falls, 6 NY3d 884 ; Martin v State of New York, 64 AD3d 62 [3d Dept 2009]; Ribaudo v LaSalle Institute, 45 AD3d 556 [2d Dept 2007]). The Court finds that defendant has met this burden.
Defendant has shown, through the testimony of claimant, that on the date of the subject accident, claimant was a 24 year old educated woman who had been going to the Reservoir her entire life. She was familiar with the shoreline and the fluctuation of the water levels, and had been in the water on the day of the accident. She was aware that the attempt to swing over the rocky terrain would require her to hold onto the rope swing for at least five seconds before releasing her hands. This was evidenced by the foresight she exhibited in practicing ahead of time - by grabbing the rope and lifting herself off the ground. Claimant had watched people rope swing that day and on the two weekends prior to the accident. She was aware that she would travel a path above the rocky and eroded shoreline and that she should not release her grip on the rope until she was over the part of the water that was not shallow.
The Court finds that claimant was aware of, and accepted, the inherent risks associated with rope swinging and that the conditions were as safe as they appeared to be. It is foreseeable that someone who rope swings can injure themselves from losing their grip on the rope, particularly if there is rocky terrain below (see e.g. Adornato v Town of Smithtown, 212 AD2d 561 [2d Dept 1995]). Accordingly, there was no duty on the part of defendant to warn of the same (see Caris v Mele, 134 AD2d 475 [2d Dept 1987], supra; see also Cimino v Town of Hempstead, 110 AD2d 805 [2d Dept 1985][holding that no duty was breached by the town's failure to warn plaintiff, who was injured after being struck by a large wave and knocked over, that water conditions were turbulent when such conditions were readily observable to all], affd 66 NY2d 709 ).
The Court finds that the present claim is analogous to Adornato v Town of Smithtown, 212 AD2d 561 (2d Dept 1995), supra, and Cohen v State of New York, 50 AD3d 1234 (3d Dept 2008), which held that the hazardous conditions were open and obvious and that the danger was readily apparent to a person reasonably using his or her senses.
Based upon the foregoing, the Court finds that there are no issues of material fact requiring a trial as to the proximate cause of claimant's injuries. The Court grants defendant's motion for summary judgment and dismisses Claim No. 113322.
April 5, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated November 23, 2009, Affirmation of Michele M. Walls, AAG, dated November 23, 2009, with Exhibits and a Memorandum of Law.
2. Affirmation of John R. Seebold, Esq., sworn to January 12, 2010, and Affidavit of Christina V. Nichols, f/k/a Christina V. Chera, sworn to January 13, 2010, with Exhibits and a Memorandum of Law.
Papers Filed: Claim, filed February 13, 2007, and Verified Answer, filed March 20, 2007.
1. It appears that claimant has commenced a proceeding against the Hudson River-Black River Regulating District, which is alleged to control the subject property, in Supreme Court (see Board of Hudson Riv.-Black Riv. Regulating Dist. v Praetorian Ins. Co., 56 AD3d 929 [3d Dept 2008]).