Defendant's motion seeking an order dismissing this class action claim was denied as to the cause of action based upon negligence.
|Claimant(s):||TIMOTHY SPRINGER and JACQUELINE SPRINGER, Individually and on behalf of their Infant Children, ADAM SPRINGER, KELLY SPRINGER and RACHEL SPRINGER, and PHYLLIS ARROYO and JOHN ARROYO, Individually and on behalf of their Children, ALEX ARROYO, CHEYENNE ARROYO, and MCKENZIE ARROYO, and all other persons similarly situated|
|Claimant short name:||SPRINGER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||UNDERBERG & KESSLER, LLP
BY: Paul V. Nunes, Esq.
MARLER CLARK, LLP, PS
BY: Bruce T. Clark, Esq.,
DREYER BOYAJIAN, LLP
BY: Donald W. Boyajian, Esq. and
James R. Peluso, Esq.,
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
BY: Edward F. McArdle, Esq.,
Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||September 5, 2013|
|See also (multicaptioned case)|
Defendant has brought this motion seeking an order of summary judgment dismissing the claim. Each party has submitted a comprehensive Memorandum of Law in support of or in opposition to this motion, and has assembled and submitted an extensive array of documents and expert affidavits in support of their respective positions. All of these memoranda, documents, and affidavits have been carefully considered by the Court in its determination of this motion. Specifically, the Court has considered the following:
Notice of Motion, Attorney Affirmation in Support, Affidavit of Dave Schwartz, P.E., Affidavit of Susan Noblit Boutros, Ph.D., Affidavit of Stephen D. Garlick, Affidavit of Douglas C. Sackett, and Exhibits 1-6
Memorandum of Law in Support 7
Attorney Affirmation of Paul V. Nunes, Esq., in Opposition, with Exhibits 8
Affidavits of Gregory Holt, Alison Osinski, Ph.D., Affidavit of Jennifer L. Clancy, Ph.D.(1) , Affidavit of Herbert L. DuPont, M.D., John R. Dunn, D.V.M., Ph.D., Timothy A. Gremmer, P.E., David B. Schendel, P.E. 9-15
Reply Affirmation in Support 16
Reply Memorandum of Law in Support 17
"Rebuttal" to Defendant's Reply 18
Claimants' Memorandum of Law 19
On August 15, 2005, the spraypark located at Seneca Lake State Park (hereinafter referred to as Spraypark) was closed by the New York State Department of Health when it was determined that the water had been contaminated by cryptosporidium, and resulting in a large outbreak of cryptosporidiosis, a highly contagious parasitic disease. Seneca Lake State Park is owned and operated by the New York State Department of Parks, Recreation and Historic Preservation.
Following this outbreak, numerous claims were brought against the State of New York, and by an Order dated June 29, 2006, this Court certified the consolidated claims as a class action. In a subsequent Order dated January 3, 2007, this Court issued an order naming The Notice Company as third party administrator for the certified class, and directed that notice of the litigation be sent to prospective class members. In an Order dated September 29, 2008, this Court approved the filing of certain late claims and an expansion of the class to include these additional claimants.
The class action consists of three categories of claimants. The first category includes all persons who experienced a diarrheal illness within 15 days after visiting the Spraypark between June 1, 2005 and August 17, 2005. The second category of claimants consists of those persons who did not actually visit the Spraypark, but experienced a diarrheal illness within 15 days after exposure to a person who had in fact visited the Spraypark. The third category of claimants consists of those persons who did not experience a diarrheal illness, but were legally responsible for medical bills of individuals within the first two categories.
The Spraypark first opened in September 2001, and consists of over 100 water jets that spontaneously spray water over a hardtop surface. The Spraypark equipment was purchased by the Department of Parks, Recreation and Historic Preservation in 2001 from Rain Drop Products, LLC, a vendor of recreational water products. It was installed at Seneca Lake State Park by employees of the parks department. The Spraypark was equipped with a chlorine disinfectant and filtration system, and was designed with a recirculating water system. As a result, Spraypark water, after circulating through the system, was treated with chlorine disinfectant, filtered, and then reused. Defendant contends that this design and construction of the Spraypark was consistent with industry standards in the recreational water industry, and that the operation of the Spraypark was not in violation of any regulations issued by the State Department of Health. On this basis, defendant seeks an order dismissing each and every cause of action asserted by the claimants.
It is well settled that summary judgment is the procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d 361 ) and should be granted only when it has been established that there is no triable issue of fact (Moskowitz v Garlock, 23 AD2d 943 [3rd Dept 1965]). The role of the Court, therefore, on a motion for summary judgment is not to resolve material issues of fact, but instead is to determine whether any such issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 ). If such material issues of fact exist, the motion for summary judgment must be denied (Rotuba Extrudors v Ceppos, 46 NY2d 223 ). However, "only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment" (id., at 231).
The proponent of a summary judgment motion must first make a prima facie showing of entitlement to judgment, providing sufficient evidence eliminating any material issue of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 ). Once the proponent has made this prima facie showing, the opponent of the motion must then produce evidentiary proof, in admissible form, to establish material questions of fact which would require a trial (Zuckerman v City of New York, 49 NY2d 557 ). The submitted evidence must be analyzed in a light most favorable to the party opposing the motion for summary judgment, and that party must be given the benefit of every reasonable inference (Egan Real Estate, Inc. v McGraw, 40 AD2d 299 [4th Dept 1973]). As a result, summary judgment is considered a drastic remedy that should not be granted if there is any doubt regarding a material issue of fact (Rotuba Extrudors v Ceppos, at 231).
In this matter, there is no dispute that the Spraypark was closed in mid-August 2005, as a result of an outbreak of cryptosporidiosis traced to the filtration system and water used at the Spraypark. The issue before the Court is whether claimants have asserted a cause of action sufficient to withstand this motion for summary judgment brought by the State.
Three causes of action have been asserted in this claim, based upon negligence, strict liability, and the breach of express and implied warranties. The Court notes that in the voluminous papers, affidavits, and documents submitted in opposition to this motion, claimants have not addressed those aspects of defendant's motion seeking dismissal of the causes of action sounding in strict liability and breach of warranty (both express and implied). Accordingly, these causes of action are hereby dismissed.
As conceded by both parties, the crux of this claim is therefore based upon allegations of negligence, and specifically whether the State was negligent in the design, construction, maintenance, and/or operation of the Spraypark.
As a landowner, the State is subject to the same duty which applies to any landowner (Preston v State of New York, 59 NY2d 997 ). This duty is defined as "reasonable care under the circumstances" (Basso v Miller, 40 NY2d 233, 241 ).
Defendant contends that the design, construction, maintenance and operation of the Spraypark, prior to its closure in August 2005, was not in violation of any statutory or regulatory requirements. Specifically, defendant offered the affidavit of Douglas C. Sackett, Assistant Director of the Department of Health, Bureau of Community Environmental Health and Food Protection. Mr Sackett attested that the New York State Sanitary Code did not apply to recreational aquatic spraygrounds at that time, and the code did not become applicable until November 2005, following the Spraypark incident herein.
Furthermore, Mr. Sackett also attested that the Spraypark, at the time of the cryptosporidium outbreak, was not in violation of any Department of Health regulation, nor was there any requirement that recreational aquatic spraygrounds in the State be equipped with UV light disinfectant technology. Additionally, Mr. Sackett stated that there were no spraygrounds in the State which were equipped with UV light disinfectant technology at that time, and that all State sprayparks utilized recirculated water in their operation.
Defendant further contends that the engineering and/or operation of the Spraypark did not depart from accepted practice, custom or usage within the industry. In support of this position, defendant has submitted the affidavit of Dave Schwartz, P.E., who is the owner and principal of an engineering firm specializing in aquatic design. Mr. Schwartz attested that the design and construction of the spraypark did not violate accepted industry standards. He further stated that there was no requirement within the industry that UV light disinfectant technology be installed in addition to a standard chlorine based disinfectant and filtration system. He also stated that the use of recirculated water was the standard within the industry.
In response, claimants have submitted affidavits from numerous experts in various disciplines attesting to deficiencies in the design, construction, maintenance, and operation of the Spraypark.
Claimants contend that there were multiple failures in the design and operation of the Spraypark which, if corrected, would have prevented the cryptosporidium outbreak. These experts separately and collectively conclude that the State failed to meet professional and industry standards and that the outbreak not only was preventable through the use of readily available technology, but was made possible (and inevitable) through the improper design, construction, and operation of the Spraypark.
Specifically, claimants submitted an affidavit from Alison Osinski, Ph.D., who is the principal and owner of Aquatic Consulting Services of San Diego, which specializes in aquatic risk management and aquatic facility design, management and operation. She stated that the health risks associated with cryptosporidium were well known by the year 2000, and that despite this knowledge, the State failed to conduct any meaningful research regarding appropriate health and safety standards during the design and construction phases of the Spraypark. She specifically indicated that in the construction of the Spraypark, the State utilized filters that were inadequate to filter out the cryptosporidium oocysts, even though there existed at the time other types of filters which would have been much more effective in removing oocysts.
Ms. Osinski also stated that the State designed and installed a pump system that could not filter the water at an adequate rate, and that the pumps which were actually installed did not even comply with the initial specifications for the system.
Ms. Osinski also stated that the State operated the Spraypark in an unsafe manner by failing to monitor and control the number of bathers actually using the facility, and failed to monitor the water quality and chlorine levels at the facility. Dr. Osinski also testified that after the initial opening of the Spraypark in 2001, the State never re-evaluated safety features or park operational procedures at any time prior to this outbreak.
Claimants also submitted the affidavit of Jennifer L. Clancy, Ph.D., a microbiologist. Since Dr. Clancy is the subject of another pending motion brought by the State (M-79517) in which the State seeks to disqualify her from testifying on behalf of claimants, her affidavit has not been considered by the Court with regard to this summary judgment motion.
Claimants have also submitted the affidavit of Herbert L. DuPont, M.D., an epidemiologist, a specialist in the area of intestinal infectious diseases and food-borne and water-borne diseases.
Dr. DuPont concluded that based upon his review of the relevant documentation in this case, there was a high level of cryptosporidia in the Spraypark's water over an extended period of time, and that the existing sanitation and filtration system at the Spraypark was not effective against cryptosporidium. Dr. DuPont specifically stated that the sanitation and filtration system, as designed and installed, was inadequate to remove the cryptosporidia oocysts, and that there was a lack of knowledge by the designers and operators of the Spraypark as to the risk of a cryptosporidia outbreak from the time that the Spraypark was constructed.
In summary, Dr. DuPont concluded that the defects in the sanitation and filtration system, combined with the lack of knowledge by the designers and operators of the Spraypark, as well as the failure to properly communicate with the public about the risks of cryptosporidia, all were substantial factors contributing to the cryptosporidium outbreak at the Spraypark.
John R. Dunn, D.V.M., Ph.D., another epidemiologist, also submitted an affidavit on behalf of claimants. Dr. Dunn is a medical epidemiologist in the communicable and environmental diseases section of the Tennessee Department of Health. In his affidavit, Dr. Dunn discussed the "12 steps for the prevention of . . . RWI"(2) issued by the Center for Disease Control, and specifically indicated the State's failure to comply with these steps during its operation of the Spraypark prior to this outbreak.
Dr. Dunn also opined that full implementation of the "12 steps" could have been achieved during the years that the Spraypark was in operation prior to the outbreak, and that if implemented, the outbreak either could have either been prevented or substantially reduced in scope. He also stated that information regarding these "12 steps" was available at the time the Spraypark was constructed. In sum, Dr. Dunn concluded that the Spraypark was constructed and operated without a full understanding of the risks of RWI.
Timothy A. Gremmer, P.E., a Senior Project Engineer for Water Technology, Inc., also submitted an affidavit on behalf of the claimants. Mr. Gremmer stated that based upon his review of pertinent documents, the Spraypark was designed and constructed without any input from a professional engineer experienced in recreational water facilities, and that as a result the Spraypark's design and construction failed to comply with standards in the recreational water industry.
Mr. Gremmer also stated that the water filtration turnover rate of two hours at the Park failed to comply with the State's own design criteria of 30 minutes, and that such a filtration turnover rate further failed to comply with recreational water industry standards.
Mr. Gremmer opined that there were numerous other failures in design of the Spraypark, such as the number and placement of restrooms, foot washing stations, barriers around the spray pad, and the failure to have a controlled entrance to the spraypad, all of which failed to comply with industry standards.
Mr. Gremmer also cited the lack of knowledge among the designers and operators of the Spraypark with regard to the risk of cryptosporidium, coupled with the failure to seek expert consultation from persons knowledgeable in the recreational water industry regarding this risk.
In sum, Mr. Gremmer concluded that the failure of the State to comply with industry standards in the design and operation of the Spraypark was a substantial factor leading to the cryptosporidium outbreak at the Spraypark.
Claimants also presented an affidavit from David P. Schendel, P.E., DEE, a licensed professional engineer experienced in water treatment processes and facility planning. Mr. Schendel concurred with Mr. Gremmer's conclusion that the Spraypark was designed without input from a professional engineer experienced in the recreational water industry, and that the Spraypark was designed by individuals without any such experience. He concluded, as did Mr. Gremmer, that this lack of experience in the design process, coupled with a lack of basic quality assurance measures, were substantial factors contributing to the cryptosporidium outbreak at the Spraypark.
Initially, the Court must address Defendant's contention that it does not owe any legal duty to those claimants who did not actually visit the Spraypark, but contracted the illness from contact with those who had visited the Spraypark. As mentioned at the outset herein, the various claimants in this class action have been divided into three categories: the first category includes those persons who became ill after visiting the Spraypark; the second category includes those persons who did not actually visit the Spraypark, but contracted an illness after exposure to a person who had in fact visited the Spraypark; the third category consists of those persons who did not become ill, but were legally responsible for those persons in the first two categories who had become ill. The State contends that it did not owe any legal duty to those persons in the second category (and, by extension, to those persons in the third category who were legally responsible for the medical bills of such persons) since they did not actually visit the Spraypark.
As stated above, in its ownership and operation of the Spraypark, the State has the same duty of care applicable to private owners or operators (Preston v State of New York, 59 NY2d 997 ). The scope of the duty is measured by balancing the likelihood of injury, the seriousness of potential injury, and the burdens associated with avoiding or minimizing the risks (Id.).
In this particular matter, defendant contends that it had no legally recognized duty of care to those claimants who did not visit the Spraypark, relying primarily upon the Court of Appeals decision in Holdampf v A.C. & S. and Port Authority of New York and New Jersey (Matter of New York City Asbestos Litig., 5 NY3d 486 ). In that case, the Court of Appeals found that the Port Authority did not have a duty, either as an employer or landowner, to the wife of one of its employees who became exposed to asbestos allegedly brought home by the employee on his clothing. The Court addressed concerns about a defendant's potential "limitless liability" (Hamilton v Berretta USA Corp., 96 NY2d 222, 232 ), and stated that the "scope of duty must be tailored to reflect accurately the extent that its social benefits outweigh its costs." (id. at 232).
Claimants, however, contend that the State's operation of the Spraypark was a proprietary function that imposed upon the State the same duty of care applicable to private owners or operators. Therefore, claimants argue, the State had an affirmative duty to build, maintain and operate the Spraypark in a reasonably safe condition. In this particular matter, claimants have produced affidavits from experts (discussed in detail below) that the State breached its duty of care by failing to protect against known dangers associated with cryptosporidium, and that one of the known dangers was the risk that the illness could be transferred by contact with a person who had been directly exposed. This particular set of circumstances is akin to the facts of Wiesner v City of Albany (224 App Div 239 [3d Dept 1928]), where contamination of the City's water supply led to an outbreak of typhoid.
Furthermore, based upon the filing and jurisdictional time requirements governing actions in the Court of Claims, the State does not risk "limitless liability" in this claim, but rather has been provided with definitive numbers as to those individual claimants alleging illness and injury directly resulting from this cryptosporidium outbreak.
Accordingly, under these circumstances, the Court finds that the State's duty of care does extend to those individuals who contracted the illness directly attributable to the cryptosporidium outbreak, even though they did not actually visit the Spraypark.
Defendant also contends that claimants have failed to sufficiently rebut defendant's prima facie proof of entitlement to summary judgment. Specifically, defendant contends that the expert opinions provided by claimants (and summarized above) were provided by disclosed experts who were not competent to render expert opinions regarding the design, construction and operation of the Spraypark, or by experts who had not been timely disclosed by the claimants pursuant to this Court's scheduling orders.
There is no question that this Court's amended scheduling order dated February 22, 2010 required that claimants make expert disclosure by March 24, 2010. Since that time, however, the parties have engaged in mediation in an attempt to resolve this claim, and, after such attempts were unsuccessful, the State instituted this motion for summary judgment. The motion papers from both sides were voluminous and required substantial time from both parties to assemble and digest.
Accordingly, even though this Court expects all parties to comply with its scheduling orders, the Court finds that the circumstances of this case warrant the Court's consideration of claimants' previously undisclosed experts (Mr. Gremmer and Mr. Schendel). In making this decision, the Court has also taken into consideration the fact that no date for the trial of this claim has been set, and in fact the claim has not yet been conferenced for trial due to the pendency of this motion for summary judgment. The Court does not find any willful conduct on the part of the claimants in failing to disclose those experts, nor is there any prejudice whatsoever to the State resulting from the use of these experts in responding to the State's motion.
Additionally, the Court finds that the additional expert affidavits provided by claimants which were considered by the Court (Alison Osinski, Ph.D., Herbert L. DuPont, M.D., and John R. Dunn, DVM., Ph.D.) provide opinions based upon competent proof as to both public health standards and public knowledge relating to cryptosporidium existing at the time of the design and construction of the Spraypark, and during its years of operation up to the outbreak which forms the basis of this claim.
As a result, the Court has before it, and has therefore considered, "dueling" expert affidavits. These conflicting expert opinions have created triable questions of fact as to whether defendant violated standards of care in the design, construction, maintenance and operation of the Spraypark (see Abato v Millar El. Serv. Co., 261 AD2d 873 [4th Dept 1999]). Furthermore, with regard to a summary judgment motion, the credibility of these dueling expert affidavits must be viewed "in a light most favorable to [claimants]" (Lane v New York State Elec. & Gas, 99 AD2d 597, 598 [3d Dept 1984]).
Upon review of the expert affidavits submitted by claimants and considered by the Court, the Court finds that claimants have submitted sufficient expert opinion, based upon competent proof, to the effect that defendant created an unsafe condition by failing to comply with then existing industry standards in the design, construction, maintenance and operation of the Spraypark. Specifically, claimants' experts have raised material issues of fact that the State failed to consider the known risks of cryptosporidium when it designed and constructed the Spraypark, failed to consider or design appropriate upgrades to the Spraypark during its years of operation, and that such actions by the State did not comply with industry standards for the design, construction and operation of recreational water parks. Therefore, the ultimate issue of whether the State was negligent, and if so, whether such negligence was a proximate cause of the cryptosporidium outbreak, are issues which can only be resolved at trial.
Based on the foregoing, it is
ORDERED, that Motion No. M-78756 is hereby GRANTED, with respect to the causes of action alleging strict products liability and breach of express or implied warranties, and such causes of action are hereby DISMISSED, and it is further
ORDERED, that in all other aspects, defendant's motion is hereby DENIED; and it is further
ORDERED, that a conference to establish a mutually agreeable date for the trial of this claim will be scheduled as soon as practicable.
September 5, 2013
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
1. Defendant has also brought a separate motion (Motion No. M-79517) for an order disqualifying Dr. Clancy and claimants' counsel. This motion will be treated in a separate Decision and Order.
2. Recreational Water Illness.