New York State Court of Claims

New York State Court of Claims
DAVIDSON v. THE STATE OF NEW YORK, # 2010-033-608, Claim No. 113568


Case information

UID: 2010-033-608
Claimant short name: DAVIDSON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113568
Motion number(s):
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Law Offices of Nora Constance Marino
By: Nora Constance Marino, Esq.
Defendant's attorney: Andrew M. Cuomo, New York State Attorney General
By: Kimberly A. Kinirons, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 24, 2010
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


This is a timely filed claim for damages by Eric Davidson(1) (hereinafter "claimant") based upon the alleged negligence of the defendant. The trial of this claim was bifurcated and this decision pertains solely to the issue of liability.

On August 19, 2006(2) , at approximately 5:45 p.m., claimant was tossing a frisbee with another person at CK Post.(3) Claimant was a patient at CK Post. Claimant had previously been a patient at CK Post in 2001. Claimant had been admitted to the facility a few weeks before the incident date. Claimant testified the patients had recreation time each day. When recreation was held outside, the patients were provided with stickballs, volleyballs or frisbees. The recreation field is a large field in between buildings at CK Post. There is a volleyball court setup. There are picnic tables and a large field.

Recreation time during claimant's 2001 visit was the same as during his 2006 visit. Claimant had been on this field before the date of his accident. Claimant testified he never saw the sewer cap prior to the date of his accident.

On August 19, 2006, claimant and another patient, Jeff Mullally (hereinafter "Mullally"), were tossing a frisbee in the field. Claimant stated this was the first time he used a frisbee at CK Post. At one point, Mullally threw the frisbee. Claimant ran to catch it, and the next thing he knew he was on the ground. Claimant and Mullally had been throwing the frisbee about five minutes before the accident.

Claimant was able to identify the object he tripped over as a raised sewer cap. According to claimant, it protruded from the ground approximately 4 to 6 inches. Claimant never saw it before running for the frisbee. Claimant was running at a diagonal to his left and looking up.

According to Mullally, the field was smaller than a football field. The raised sewer cap was located in or around the center of the field, near the picnic tables and a cement pathway. Mullally described this area as heavily trafficked. He and claimant were using the frisbee at this location on the date of the accident. Mullally had also been at CK Post for a couple of weeks and never saw the raised sewer cap prior to claimant tripping on it.

Stanley Fein (hereinafter "Fein"), a professional engineer, was called by claimant as a safety engineer expert witness. Fein testified the sewer cap was 25 inches in diameter and 5 inches high. He noted it was 8 feet from the cement path and 50 feet from the volleyball court. The field was poorly maintained and it had this tripping hazard out of a person's line of sight unless they were on top of it. According to Fein, a person sees anything horizontal with their eyes and what is 18 degrees below horizontal. When a person is far enough back to have this sewer cap in their line of sight, it would not be appreciated as a tripping hazard. Fein testified the cap would blend in with the field when the grass is brown and dried out. Fein opined the cap is a hazard and a trap, particularly on a playing field.

On cross-examination, Fein stated the cap in claimant's Exhibit 4 was "invisible", except he knew it was there. It is only in claimant's Exhibit 5, Fein stated that a person can tell the object is a sewer cap. The witness was not aware of any codes or regulations in regard to installation of a sewer cap at hospital or facilities like CK Post. Fein admitted that if people were told there could be no running while playing frisbee, it would take the risk of the sewer cap away as a tripping hazard.

Claimant read transcripts of defendant's witnesses into the record. Harry Hunsucker was in charge of the maintenance of the field at the time of claimant's accident. He testified there were no complaints about the sewer cap and it has been there for longer than the witness. The witness has worked at this facility for twelve years. If the witness had received a complaint about the cap, then there probably would have been some dirt thrown around it to raise the grade of the ground or paint the cap.

Robert Ryan also testified at a deposition. The witness was in charge of maintenance for Pilgrim Psychiatric Center (hereinafter "Pilgrim") at the time of claimant's accident. CK Post is a part of Pilgrim. There is a sewer system under Pilgrim and a manhole cover is required every "so many feet". The covers provide access to the sewer system in the event of a backup. During the summer, the lawns are mowed unless the weather becomes hot and dry and the grass burns down. The witness stated the covers vary in their heights. Some of the covers are at grade and others are raised to varying heights. This witness also stated there have never been complaints about the sewer caps since he has worked at this location beginning in 1996.

Julie Smith (hereinafter "Smith") has worked at CK Post for fifteen years. At the time of claimant's accident, she was the assistant director. She has been aware of the sewer cap since 1993 when she started at CK Post.(4) After claimant's accident, the witness caused the site to be inspected. It was the determination of the inspection that the sewer cap was sufficiently raised aboveground to have made it obvious to be seen. The witness never considered the sewer cap to be a tripping hazard. The field was customarily used by the patients for recreation. During Smith's tenure at CK Post, no one else had tripped on the sewer cap. According to Smith, patients were given written instructions prohibiting them from running and diving when playing frisbee. Smith had also discussed the manhole cover with the recreational therapist prior to claimant's accident. The recreational therapist was in charge of safety. According to the discussions, this manhole cover was not a hazard because it was sufficiently raised aboveground to have made it obvious to be seen.

As the owner and operator of the property, the State's duty is to use reasonable care in maintaining the property in a reasonably safe condition to prevent the occurrence of foreseeable injuries (Basso v Miller, 40 NY2d 233). The duty of care is limited by claimant's reasonable expectations under the circumstances. The defendant's obligation in such a situation is to make the premises as safe as they appear to be so that claimant can fully comprehend and see the risks which will be assumed (Drew v State of New York, 146 AD2d 847; see also, Walter v State of New York, 185 AD2d 536). A landowner has no duty to warn of an open and obvious danger that can be readily observed by the use of one's senses (Tagle v Jakob, 97 NY2d 165); "[u]nder such circumstances, the condition is a warning in itself" (Tarricone v State of New York, 175 AD2d 308, 309).

In Manoly v City of New York, 29 AD3d 649, plaintiff was injured when he tripped over a manhole cover while playing soccer. Plaintiff admitted to knowing the manhole cover was present and he had previously played on the field. The Appellate Division held:

The doctrine of assumption of risk is a form of measurement of a defendant's duty to a voluntary participant in a sporting activity (see Benitez v New York City Bd. of Educ., 73 NY2d 650, 657, 541 NE2d 29, 543 NYS2d 29 [1989]). The voluntary participant is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport; the landowner need protect the plaintiff only from unassumed, concealed, or unreasonably increased risks, thus to make conditions as safe as they appear to be (see Morgan v State of New York, 90 NY2d 471, 484, 685 NE2d 202, 662 NYS2d 421 [1997]; Lapinski v Hunter Mtn. Ski Bowl, 306 AD2d 320, 760 NYS2d 549 [2003]).

In the instant matter, claimant testified he never saw the sewer cap prior to his accident, as did Mullally. Claimant spent 28 days at CK Post in 2001 and had been at CK Post for a couple of weeks prior to his accident in August 2006. The Court finds no credibility to claimant's statement that he did not see this very obvious condition. The sewer cap is over two feet in diameter and almost half a foot aboveground. While it may not be an ideal addition to the field, it is clearly open and obvious enough to be its own warning. The ground at the time of claimant's accident was dry, the grass burnt and nothing growing around the sewer cap (claimant's Exhibit 4).

Based upon the foregoing, the Court finds in favor of defendant and dismisses the Claim. Any motions not specifically ruled upon are denied.

Let judgment be entered accordingly.

September 24, 2010

Hauppauge, New York

James J. Lack

Judge of the Court of Claims

1. At the time of trial, claimant had passed away. His estate was represented by his grandfather, Michael J. Davidson, who was appointed Administrator of claimant's estate. There is no allegation claimant's death was as a result of the instant matter. His testimony is presented through his deposition (defendant's Exhibit D).

2. The date of accident in the claim is incorrectly stated as occurring on August 20, 2006. The correct accident date of August 19, 2006 was stipulated to at claimant's deposition held on January 18, 2008 (defendant's Exhibit D).

3. CK Post is an addiction treatment center located in Brentwood, New York. Its treatment program, according to claimant, is a 28 day program.

4. The witness' deposition was held on October 23, 2008.