Claim involving claimant bicyclist injured by striking a gate which alleges defendant negligently created and failed to warn of a dangerous condition consisting of gate partially blocking pedestrian/biking path at state park, placed to prevent vehicular traffic on path, is dismissed after trial where the well-marked gate was not a dangerous condition and was easily observable in the sunny daylight conditions existing at the time of the incident.
|Claimant short name:||KUHL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has sua sponte amended the caption to reflect the properly named defendant.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||GIRVIN & FERLAZZO, PC
By: Daniel S.L. Rubin, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Charles Lim, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 17, 2020|
|See also (multicaptioned case)|
Bruce Kuhl (claimant) was injured on June 7, 2017(2) while bicycling at Peebles Island State Park, suffering a broken collarbone. Mr. Kuhl struck a gate that partially blocked a paved pedestrian/biking path leading to and from Peebles Island, and fell to the ground. The accident occurred on a sunny day at approximately 3:40 p.m.
In his filed Claim, Mr. Kuhl alleges that the defendant was negligent in that it, "failed to warn reasonably foreseeable cyclists of the Obstruction itself by marking the Obstruction with bright or reflective paint or tape, or by posting signs or other warnings of the impending Obstruction."
It is well established that the State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (Friedman v State of New York, 67 NY2d 271, 283 . The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91, 97 ). Claimant must prove negligence on the part of a defendant and that the negligence was a proximate cause in producing the accident (Bernstein v City of New York, 69 NY2d 1020, 1021-1022 ).
In general, liability will not attach unless the State either created, or had actual or constructive notice of, a dangerous condition, and then failed to take reasonable measures to correct or warn of the condition (Rinaldi v State of New York, 49 AD2d 361, 363 ; Toohey v Town of Brunswick, 191 AD2d 858 [3d Dept 1993]).
Trial of the claim was conducted August 16, 2019. Claimant was the only trial witness. A number of marked exhibits were admitted into evidence, including a pre-trial deposition of Michael Greenslade (Exhibit 7), previously the park manager at Saratoga Spa State Park and since early 2018, subsequent to claimant's accident, the park manager at Peebles Island State Park.
The circumstances surrounding claimant's accident are, largely, not in dispute, and how claimant was propelled to the ground is in no dispute at all. Claimant, while riding his bike on the pedestrian/biking paved path at Peebles Island State Park on the afternoon of June 7, 2017 at approximately 3:40 p.m., traveling in a southernly direction, struck a metal gate (for illustration purposes only, see Exhibit 6) that partially blocked the path and was thrown to the ground, breaking his collarbone.
Claimant's uncontradicted testimony was that after cresting a hill on the path and beginning a descent, traveling between 10 to 15 MPH, he struck the gate, never having applied his brakes, and never having observed the gate before striking it. He testified, "I didn't even see it. It was just there" (Trial Transcript, hereafter 'TT,' p 20, lines 16-17). Explaining his failure to observe the gate, claimant testified, "[a]nd between the shadows and the sun and the gate being a kind of a tannish-brown color, it was totally camouflaged into the road, and I ran right into it" (TT, p 19, lines 4-7).
On the morning of June 7, 2017, claimant had biked to work from his home, but had not utilized the Peebles Island State Park route. The accident occurred on his trip home that afternoon. Although he had traveled the route in question two times in previous years, claimant had not done so in 2017. Claimant testified that on his prior travels the gate was not "there," rather, the pedestrian/biking path was partially obstructed by a large orange and white traffic barrel or drum, a type of which is depicted in Exhibit 4. Trial proof indicated the gate had been installed "to prevent vehicular traffic from accessing the bike/pathway on the North Bridge" (see Exhibit 3), and that a motorist had prior to its installation, "driven her car up that bike path and got stuck" (TT, p 26, lines 14-15).
The following information was uncontradicted at trial:
1. June 7, 2017 was a bright, sunny day;
2. Claimant struck the gate as he was pedaling downhill, traveling between 10 to 15 MPH, and he did not apply his brakes prior to striking the gate;
3. Claimant never saw the gate before striking it;
4. Claimant was not wearing sunglasses at the time of the accident;
5. The gate extended across "half of the path" (TT, p 19, lines 1-2);
6. The gate, on the date of the accident, had yellow/orange and black reflective tape on that portion of the gate facing claimant (as depicted in Exhibit 8A, and as acknowledged by claimant [TT, p 46, lines 2-13 and p 58, lines 1-4]); and,
7. As claimant traveled south on the path immediately prior to his accident, the sun was shining in his eyes (TT, p 18, line 1) and the claimant acknowledged that the sun was in his eyes, facing toward him, in front of him (TT, p 56, lines 21-25 and p 57, lines 1-3).
Claimant further testified that he was aware of no prior accidents similar to his. No trial proof was introduced to establish that any prior accidents similar to claimant's had occurred prior to June 7, 2017.
The gate claimant struck is not a dangerous condition. The gate only partially obstructed the paved path, leaving room for a pedestrian or bicyclist to avoid it. It is a large, wide, easily observable object. In fact, the gate had been installed as a safety feature, to prevent motorists from improperly or mistakenly driving on the pedestrian/biking path, as a previously trapped motorist had done. On June 7, 2017 the gate had yellow/orange and black reflective tape facing southbound users of the path, as was the claimant that day. No prior user of the path had struck the gate as claimant did on June 7, 2017.
Claimant suggested that his failure to observe the gate was caused, in part, by the gate being cast in shadows. That explanation, however, is undermined by claimant's testimony that the sun was shining in his eyes, facing toward him and in front of him. No trees stood immediately behind the gate which, given claimant's description of events, would have cast the gate in shadow.
Exhibit 6 further undermines claimant's explanation. That photograph, not taken on the day in question, shows that the gate would be cast in shadow by nearby trees as the sun was positioned in a westerly fashion, to claimant's right as he traveled south, and would not be cast in shadow as the claimant rode directly toward the gate, with the sun positioned in the south, facing claimant.
The claimant was biking without sunglasses on a bright, sunny day. He was on the path traveling between 10-15 MPH and pedaling as he proceeded downhill. The gate he struck is a large, easily observable object, embellished by diagonal yellow/orange and black reflective tape. Claimant testified the sun was shining in his eyes.
Claimant was obligated to see what was plainly there to be seen by anyone "employing the reasonable use of their senses" (Tarricone v State of New York, 175 AD2d 308, 309 [3d Dept 1991], lv denied 78 NY2d 862  ).
Claimant argues that defendant had a duty to warn him of the gate's existence. The gate was not an inherently dangerous condition and defendant is not obligated to warn users of its property of an open and obvious condition that is not inherently dangerous (Anton v Correctional Med. Servs., Inc., 74 AD3d 1682, 1683 [3d Dept 2010]).
Claimant additionally argues the placement of the gate was the product of negligent design and maintenance. There was no proof presented at trial, expert or otherwise, to establish that the design or maintenance of the gate was negligent. The mere happening of an accident is not proof of negligence (Tomassi, 46 NY2d at 97).
The claimant has failed to prove his claim by a preponderance of the credible evidence. The claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
January 17, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
2. The filed Claim misstates the date as June 6, 2017.