New York State Court of Claims

New York State Court of Claims
SCIALABBA v. THE STATE OF NEW YORK, # 2011-030-007, Claim No. 117226


State of New York 60% responsible for the injuries suffered by claimant in this trip and fall in public park on negligently maintained paved path. Claimant is not barred from recovery by doctrine of primary assumption of risk.

Case information

UID: 2011-030-007
Claimant short name: SCIALABBA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 117226
Motion number(s):
Cross-motion number(s):
Claimant's attorney: ROBERT V. MAGRINO, ESQ.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN,
Third-party defendant's attorney:
Signature date: April 26, 2011
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Karen Scialabba and Joseph Scialabba allege in their claim that Ms. Scialabba was injured because of the State's negligence in maintaining a paved walkway at Rockland Lake State Park, causing claimant(1) to trip, fall and suffer injury on November 1, 2008 as she ran on the path. This decision relates only to the issue of liability, after the first part of a bifurcated trial.

On Saturday, November 1, 2008 at approximately 11:00 a.m., claimant and her husband went to Rockland Lake State Park, in her case to go for a run around the lake, and in his case to take their dog for a walk. As was their custom, they parked the car in one location and headed off in different directions. Ms. Scialabba was dressed in running gear, including running sneakers and sports sunglasses, since it was a sunny day. Ms. Scialabba ran about eight miles, five to six times a week at the park. She generally ran on the main road around the lake in order to get more mileage, but because that day there were many cars on the roadway, she cut over to the jogging path where she usually does not run. Because of the sun, there were shadows across the path. She was looking straight ahead as she ran, "to make sure . . . that there's nothing in my path . . . no leaves or no rocks, no logs in the road or anything to trip on" and noticed only "black tar straight ahead." (2) She saw "black pavement so that it was clear for running." [T - 49].

As she ran, she felt her left foot catch something, and she "slammed to the ground." [T - 31]. When she looked back to see what she had tripped on, she saw a "huge crack" spanning the entire width of the path, that she estimated was approximately two inches deep. [T - 31]. The buckling surface appeared to have been created by a tree root. Her mouth was bleeding, she got up, and called out to a passerby for help.

Betsy Irkowski, the passerby, said she called Mr. Scialabba on her cell phone and waited for him with Ms. Scialabba. Ms. Irkowski identified a building seen in the background of one of the photographs as the nearby "ranger station." [T - 19; Exhibit 2].

When Mr. Scialabba got the call, he was about a mile and a half away. He took the dog to the car, and drove to the spot. He arrived a little after noon, and saw his wife sitting on a rock with Ms. Irkowski and "there was blood everywhere." [T - 64]. He took one of his shirts off to apply pressure, and then put her in the passenger side of the car. The park office was a "couple of hundred yards up the road," so he drove over to the semicircle in front of the office, to try and find a park officer or police officer for help. [T - 65]. There was no one at the office. He called the "State Park Police information" number, and was advised there was no one in the park, and then decided he did not "have time to wait" and drove his wife to Nyack Hospital for treatment. [T - 66].

On Sunday, November 2, 2008 he went to the park to speak with the Park Manager as he had been told to do by the park police, but found no one there. He then went to the location of his wife's fall, and picked up her running glasses and Ipod, and took photographs. He also measured the crack with a tape measure, saying that it was approximately two inches high and, relative to a golf ball(3) , "the crack went smoothly up and then rounded - it concaved in and then rounded down." [T - 79].

After taking the photographs and retrieving his wife's property, Mr. Scialabba saw a State Park Police officer ("a pretty young officer. I think he was pretty new") pulling in to the semicircle before the park station and waved him down. [T - 68]. The officer advised that Mr. Scialabba should speak with "the desk police officer." [Ibid.].

Accordingly, on Monday, November 3, 2008 Mr. Scialabba called the desk, and was advised that he needed to go back to the park and have the Park Manager fill out a report, which would then be forwarded to the State Park Police and could be retrieved by Mr. Scialabba. He was advised to speak to the director of the park, Norma Daniels, and did so. Mr. Scialabba was under the impression that the matter could be handled much the way private landowners would utilize a homeowner's policy, with an exchange of insurance information. Ms. Daniels told him, however, that "the only recourse you have is to sue New York State for your damages." [T - 69].

Mr. Scialabba recalled that it was the following day when "[his] wife was feeling better" [T - 70] - Tuesday, November 4, 2008(4) - that he returned to the park with his wife, and saw the Park Manager, Christian F. Nielsen, Jr. to make a report. Ms. Scialabba was instructed to give Mr. Nielsen a narrative that the Park Manager would record in the accident report (as opposed to Ms. Scialabba completing, and then signing, the report herself). Both Mr. Scialabba and Ms. Scialabba thought that Mr. Nielsen was skeptical about how the accident happened, and Mr. Scialabba suggested that they show him where it happened. Mr. Nielsen drove claimants over to the location of the accident, and they showed him the break in the path. Mr. Scialabba estimated that the break in the path where his wife fell was "a few hundred yards, two or three hundred yards" from the park station office. They went back to the station after viewing the site and Ms. Scialabba completed telling Mr. Nielsen her account.

Christian F. Nielsen, Jr. testified generally as to his duties as Park Manager at Rockland Lake State Park, and about this accident as well. At the time of trial, he had been employed by the New York State Parks and Recreation and Historical Preservation at different locations for more than 27 years, and had been Park Manager for Rockland Lake State Park for three to four years. He viewed making the park safe and hiring the correct people as his primary duties, and was responsible for overseeing "Nyack Beach, the golf course, [and] Hook Mountain" [T - 82] among other areas, within the over 1,945 acre park. During the summer season, there were approximately 150 seasonal employees and 15 permanent employees. During the winter, there were 15 permanent employees and approximately 6 seasonal employees. By November 1, 2008, the summer staff would have recently been laid off.

Maintaining the roadways is accomplished through the "maintenance area" [T - 97], Mr. Nielsen said, and is overseen primarily by the Assistant Park Manager, John Broley. All employees are taught to look around as they go around the park to find things that might cause an accident. Mr. Nielsen himself lives in the park, and patrols "every day that [he's] working." [T -98]. Shown Exhibit 2, a photograph taken by Mr. Scialabba showing the crack in the path that tripped his wife, as well as where she landed and Mr. Scialabba retrieved his wife's Ipod and sunglasses, Mr. Nielsen confirmed that a building in the background of the photograph was his office, which he thought was perhaps "500 yards" from the site. [T - 105].

He had not seen the crack until after the claimants showed it to him at his request, and did not recall how they got to the site for the viewing (by truck or walking). At first Mr. Nielsen testified that when he saw the location, it looked like "a slight indentation in the path" a "slightly raised" crack, that "went the width of the path." [T - 88]. He estimated that the crack had not been there long and, had he seen it, it would probably have been a low priority to fix, although it would have been repaired at some point. He thought that the crack at its "worst possible spot" was "about an inch" high. [T - 103; Exhibit 6]. Elsewhere he testified that as he saw the crack in November 2008, even if Ms. Scialabba had not fallen, he would have repaired it. Further reviewing Exhibit 2, as well as other photographs [Exhibits 1, 3 - 7], he opined that a crack such as the one shown, if caused by a tree root (which in other testimony he indicated was discovered to have been the cause when personnel repaired the crack) would have to have been there for three months, and to have developed "gradually." [T - 106].

Mr. Nielsen also said that the path on which Ms. Scialabba fell is a walking path utilized by the public to get to and from the picnic areas, as well as to the jogging path through the picnic areas, and is "seldom used." [T - 102]. He said that there had been no prior reports of accidents on this path. Other than the obligation of employees to observe and report potential dangers, Mr. Nielsen did not offer any testimony as to the frequency or manner of any inspections.

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).

"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. 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. While the open and obvious nature of a claimed defect or dangerous condition militates against a duty to warn [see Cupo v Karfunkel, 1 AD3d 48,49, 52 (2d Dept 2003)](5) a landowner nonetheless has a duty to maintain its property in a reasonably safe condition in the first instance.

Upon review of all the evidence, including a review of the photographs in evidence and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has established that defendant was negligent in its maintenance of the walkway utilized by the public, and such negligence was a proximate cause of claimant's readily foreseeable trip, fall and injuries.

In this case, testimony and photographic exhibits established that there were significant buckles and a path-wide crack on the paved surface leading to the picnic areas upon which claimant ran on November 1, 2008. With dappled sunlight crossing the path, variations in the surface would be difficult to perceive, as was the case here, even with sunglasses. Once it was brought to the park manager's attention, Mr. Nielsen acknowledged that the crack was significant enough that it required repair, although what priority he would give to such repair varied with his somewhat equivocal testimony on the issue. Credible testimony by Mr. Scialabba who, along with his wife, were the only persons to actually testify as to measuring the crack, established that the crack was two inches high and rounded, and that the area leading up to the crack on either side was buckled. This was visible in the photographs - as is the grass growing in the crack - also suggesting that it had been there for some time. [Exhibits 1, 2, 6].

As a result, the Court finds that this cracked pavement constituted a dangerous condition, about which - based upon the length of time Mr. Nielsen indicated it must have been there (at least three months), and its proximity to the park office (whether 200 yards away, or 500 yards away, it was nearby) - the State should have known and repaired within a reasonable time. Since the State's own witness testified that this condition had been in existence for at least a three month period, the Court finds that the State had a sufficient opportunity to correct the condition, or at a minimum provide an appropriate warning, and that the failure to correct the condition or provide adequate warning of this hazard was a proximate cause of claimant's accident. During that three month period Mr. Nielsen conceded as the minimum time frame for the dangerous condition to develop, the number of personnel employed by the park would have been at its peak, with summer employees still in place.

Having made this determination, however, the issues of whether the doctrine of primary assumption of risk applies to bar recovery, or the comparative negligence of the claimant must also be considered.

Primary assumption of risk - if applicable - acts as a complete bar to recovery, as it measures the defendant's duty of care to sports participants, rather than a claimant's culpable conduct for comparative negligence purposes. Under primary assumption of risk, the participant in a given competitive athletic or recreational activity, by choosing to participate in the activity, is deemed to have consented "to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation." Turcotte v Fell, 68 NY2d 432 ,439 (1986); see Morgan v State of New York, 90 NY2d 471, 484 (1997).

The Court of Appeals has limited the applicability of the notion of primary assumption of risk as a complete bar to recovery, acknowledging its prior overactive application in contexts not originally contemplated, and its potential for "undermin[ing] and displac[ing] the principles of comparative causation . . . (citation omitted)." Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395 (2010).(6) "If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as [the] risk presented by the condition is inherent in the sport." Cotty v Town of Southampton, 64 AD3d 251, 254 (2d Dept 2009).

Here, however, the Court is unpersuaded by defendant's argument that claimant is barred from recovery under the doctrine of primary assumption of risk based upon her status as an experienced runner who had run in the park previously, that her casual Saturday run is a qualifying event under the doctrine, and that the surface area of paved jogging/walking/biking paths could vary.(7)

While certainly, an irregular running surface on a trail path, or more rustic path, including the intrusion of tree roots, or debris may be a risk inherent in running (or bicycling) on a dirt path in a park, here there was a paved path utilized by the public at large for a multitude of purposes, which was not properly maintained by the State. Ms. Scialabba was not participating in a qualifying athletic contest - such as a race, or a basketball game, or a golf game - but rather taking a run for exercise. This activity is somewhere between the completely incidental participation in a recreational activity of the bicycle rider who rode her bike at night without a light in a park in pursuit of the bathroom over what turned out to be a dangerous, recessed grate in the road, [see Powley v State of New York, 10 Misc 3d 1060 (A) (Ct Cl 2005); see also Caraballo v City of Yonkers, 54 AD3d 796 (2d Dept 2008) appeal dismissed, 13 NY3d 788 (2009)], and someone participating in an athletic contest, such as an outdoor basketball game, [see Sykes v County of Erie, 94 NY2d 912 (2000)], or playing golf [Anand v Kapoor, 15 NY3d 946 (2010)].

Ms. Scialabba's decisions and actions should be considered under the comparative fault provisions of Civil Practice Law and Rules 1411, however. Pursuant to Civil Practice Law and Rules 1411, the assumption of risk doctrine diminishes any recovery in proportion to a claimant's culpable conduct. The evidence here established that Ms. Scialabba was running on an unfamiliar path, looking straight ahead, and failed to exercise the type of caution that would be suggested by running in unknown territory. While she had running sunglasses on, the sunny day, and surrounding trees, still created shadows. She must therefore bear a share of the liability assessed in this matter.

Based upon the foregoing, the Court finds that claimant is 40 % responsible for the injuries suffered by her in this accident, and the defendant State of New York is 60 % responsible for the injuries suffered by claimant.

The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision.

A trial on the issue of damages will be scheduled as soon as practicable.

April 26, 2011

White Plains, New York


Judge of the Court of Claims

1. References to claimant herein are to Karen Scialabba, unless the context suggests otherwise, since the claim of Joseph Scialabba is derivative.

2. References to the trial transcript are designated as [ T - x ], here [T - 48].

3. Ms. Scialabba mentioned using the golf ball to measure the crack as well, when she and her husband went to the site again after leaving Mr. Nielsen on the day they reported the accident, explaining that there are always golf balls in the trunk of the car because Mr. Scialabba golfs.

4. The Patron Accident Report is dated November 5, 2008. [Exhibit 8].

5. "On this appeal we are asked to consider whether proof that an allegedly dangerous condition on real property is 'open and obvious' precludes a finding of liability against a landowner. Recognizing that our decisions on this issue may appear inconsistent, we take this opportunity to clarify that the open and obvious nature of an allegedly dangerous condition is relevant to the issue of the comparative fault of the plaintiff and does not preclude a finding of liability against the landowner . . . Where a plaintiff has presented evidence [on a summary judgment motion] that a dangerous condition exists on the property, the burden shifts to the landowner to demonstrate that he or she exercised reasonable care under the circumstances to remedy the condition and to make the property safe, based on such factors as the likelihood of injury to those entering the property and the burden of avoiding the risk. Evidence that the dangerous condition was open and obvious cannot relieve the landowner of this burden. Indeed, to do so would lead to the absurd result that landowners would be least likely to be held liable for failing to protect persons using their property from foreseeable injuries where the hazards were the most blatant. We . . . (citation omitted) hold that proof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiff's comparative negligence. Accordingly, our decisions which stand for the broad proposition that liability under a theory of common-law negligence will not attach when the allegedly dangerous condition is open and obvious should no longer be followed . . . (citations omitted)."

6. "The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in 'facilitat[ing] free and vigorous participation in athletic activities'. . . (citations omitted). We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed."

7. "In sum, it cannot be said, as a matter of law, that merely by choosing to operate a bicycle on a paved public roadway, or by engaging in some other form of leisure activity or exercise such as walking, jogging, or roller skating on a paved public roadway, a plaintiff consents to the negligent maintenance of such roadways by a municipality or a contractor. Adopting such a rule could have the arbitrary effect of eliminating all duties owed to participants in such leisure or exercise activities, not only by defendants responsible for road maintenance, but by operators of motor vehicles and other potential tortfeasors, as long as the danger created by the defendant can be deemed inherent in such activities. We decline to construe the doctrine of primary assumption of risk so expansively." Cotty v Town of Southampton, supra, at 257.