|Claimant short name:||HUNER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Cannon & Acosta, LLP
By: Gary Small, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: John L. Belford, IV, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 24, 2010|
|See also (multicaptioned case)|
This is a timely filed claim by Bruce Huner (hereinafter "claimant"). The claim is for negligence by the State of New York (hereinafter "defendant") as the result of an accident between claimant on a bicycle and a vehicle owned by defendant and operated by an employee. The accident took place at Jones Beach State Park on September 19, 2007. A bifurcated trial was held on February 23, 2010.
Claimant testified he was at Jones Beach State Park on the accident date on his bicycle. Claimant is a very experienced cyclist and has been to the park numerous times on his bike. He traveled the Wantagh Bike Path and entered the park through field five. Claimant was familiar with the intersection where the accident occurred. The accident occurred at the intersection of field five and central mall sidewalks. Claimant stated he never saw any signs prohibiting bike riding at Jones Beach. Prior to entering the intersection, claimant clipped his shoes to the pedals of the bike. Claimant testified he was slowly going into the intersection when defendant's truck hit him. Claimant admitted he could not see the truck on the sidewalk prior to entering the intersection.
Claimant read part of Kevin Boone's deposition into the record. The sum and substance of this testimony was concerning Christopher Barr's lack of a valid driver's license on the date of the accident. Mr. Barr was the employee driving the vehicle in the accident with claimant. Defendant had a certification program for employees to drive state vehicles. In order to enter the program, an employee needed to possess a valid NYS driver's license. Mr. Boone had trained Mr. Barr on a few occasions in the proper operation of a vehicle but Mr. Barr had never, despite being asked, produced a valid NYS driver's license. Mr. Barr always had an excuse as to why he did not have it with him. As it turned out, Mr. Barr did not have a valid NYS driver's license.
Jaclyn Terrillion was called by defendant to testify. Ms. Terrillion was an employee at the time of the accident and was a passenger in the vehicle involved in the accident. She estimated the truck was traveling less than 5 m.p.h. as it approached the intersection. She screamed for Mr. Barr to stop when she saw claimant enter the intersection and turn toward the truck. According to Ms. Terrillion, the truck had stopped before claimant came into contact with the truck. It was her estimate claimant was traveling at a speed which did not allow him to stop before hitting the truck.
Ms. Terrillion testified bike riding is not permitted in certain areas of the park. The area where the accident occurred is an area where bike riding is prohibited. She further testified there are signs at the entrance to the park indicating bike riding is prohibited.
Christopher Barr testified. He testified he was driving the truck at the time of the accident even though he was not authorized to do so and had been told not to drive. Mr. Barr acknowledged he did not possess a valid NYS driver's license.
Defendant called Kevin Boone to testify. Mr. Boone stated bike riding at Jones Beach is regulated by law. Bike riding, in the area of the accident, was prohibited on the date of the accident. Mr. Boone testified there were signs indicating bike riding was prohibited. The signs would have been in locations claimant passed prior to the day of the accident and on the day of the accident. Bike racks were available for the storage of bikes.
It is well settled the State does not insure the safety of those who participate in recreational activities in State parks. To recover in a negligence action, a claimant must establish defendant owed him a duty to use reasonable care and that duty was breached (Akins v Glens Falls City School Dist., 53 NY2d 325). Absent the breach of that duty, there can be no liability (Kimbar v Estis, 1 NY2d 399). The duty of care is limited by claimant's reasonable expectations under the circumstances. The defendant will be relieved of its duty where the claimant has made an informed estimate of involvement in an activity, voluntarily undertakes the activity and is injured as a result of those risks (Turcotte v Fell, 68 NY2d 432). 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). The claimant will be held to have consented to an injury-causing event where it was known, apparent or readily foreseeable (O'Neill v Daniels, 135 AD2d 1076, lv denied 71 NY2d 802).
Claimant was participating in a prohibited activity at the time of his accident. His testimony that he did not know bike riding was prohibited is incredible. Further, claimant, a competitive cyclist, entered a blind intersection without regard to whether or not anything was around the corner. The Court believes Ms. Terrillion's testimony concerning claimant's speed. Mr. Barr's lack of a license is irrelevant as he was not the proximate cause of the accident.
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