New York State Court of Claims

New York State Court of Claims
MUSCATELLA v. THE STATE OF NEW YORK, # 2020-044-005, Claim No. 130562


After trial of claim for damages for personal injuries incurred when claimant slipped on algae and fell on a waterfront pier at a State Park, the Court dismissed the claim on the basis that the presence of the algae was inherent to the nature of the pier, and thus did not constitute a dangerous condition for which defendant could be held liable.

Case information

UID: 2020-044-005
Claimant short name: MUSCATELLA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130562
Motion number(s):
Cross-motion number(s):
Claimant's attorney: LADUCA LAW FIRM
BY: Anthony J. LaDuca, Esq., of counsel
BY: Kevin A. Grossman, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 17, 2020
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant filed this claim to recover for personal injuries suffered when he slipped and fell on a waterfront pier constructed, owned and operated by defendant State of New York (defendant) at Taughannock Falls State Park (the Park) in Trumansburg, New York on September 21, 2016. Trial of the matter was bifurcated and held in the Syracuse District on December 10, 2020. This decision addresses only the issue of liability.

At trial, John Van Valen, the Park's (retired) manager testified that although he was not working on the date of the accident he did inspect the area where claimant fell. He said that there was a puddle on the pier that appeared to have algae in it, and that it was slippery. He said that the side of the pier where claimant fell was about a foot lower than the other side of the pier, and that water would routinely accumulate on it due to rain, wind, wave action, passing boats and other routine phenomena. Van Valen asked Park employees to scrub the algae off the pier after claimant's accident, but did not recall having done so at any previous time. He said there was no process to inspect the pier for algae. He was not aware of any other Park patrons falling in this location.

Rodney Held, a long-time Park employee, was working on the date of claimant's accident and assisted him after he fell. Held prepared a "Patron Incident Report" (Trial Exhibit No. 2) in which he noted that a fisherman reported that a passing boat had caused water to wash over the pier immediately prior to claimant's fall. He described the situation as a "slip hazard" (id.).

Held stated that water routinely washed over the pier and that algae would regularly form on it. He said he had removed the algae many times prior to the accident, but that there was no regular schedule for checking for algae. He said that the algae would "grow wherever it wants to"(1) and that any of the piers could have algae on them, and that there is no permanent fix for algae growth. Held acknowledged that Park patrons were frequently on the pier in that location.

Claimant's wife, Karen Muscatella, testified that they went to the Park that day to go fishing. They had never been to the Park before. She said it was a warm, clear sunny day. She said they were walking toward the pier when claimant saw a fisherman catch a fish. He told her he was going to go help, and she stopped to use her phone. She heard a noise, looked up, and saw claimant's feet go up in the air, while he landed on his back. She said it looked like someone "pulled a rug out from under his feet." He fell again while trying to get up. The fisherman and another person (presumably Held) helped claimant off the pier.

Claimant testified that on the day of the incident he was wearing shorts, a shirt and hiking shoes. He was walking in the park with his wife when he saw that the fisherman had a catch and decided to help him bring it in. He said he walked quickly toward the pier, but was not running. When he got to the pier, his feet "went right out from under" him, "like an oil slick." He fell again when he tried to get up. He said that he was carried on a stretcher to an ambulance, and that the stretcher was covered in algae from his shirt where he landed on his back.

Claimant noted that he had been on many piers, because he fishes nearly every day. He said he was focused more on the fisherman than the pier, but did notice there was water on the pier. He said he had never encountered a slippery condition like the algae on the pier.

The parties also submitted the deposition testimony of the fisherman, Matthew Mitchell. He was in the process of catching a fish when he saw claimant approaching at "a jog."(2) He saw claimant fall and helped him up. Mitchell stated that a boat had just gone past the pier, and a wave had washed over it. He noted that at that time of year, there would be patches of algae on the pier which would be "a little slippery"(3) when wet. Mitchell helped claimant up and to a seat next to the pier.

Claimant rested his case at the close of his testimony. Defendant did not call any witnesses. Defendant then moved to dismiss on the basis that a land owner is not liable for injuries arising from a condition that is inherent or incidental to the nature of the property, and which could reasonably be anticipated by those using it. In response, claimant's counsel argued that defendant had constructed the pier, that it had sunk, and that Park employees were aware that the algae was a recurrent condition. The Court reserved decision on the motion and closed the proof.

The State, as a landowner, owes a duty to maintain its property in a reasonably safe condition under the prevailing circumstances, but "it is not obligated to insure against every injury which may occur" (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]; see Basso v Miller, 40 NY2d 233, 240-241 [1976]; Matter of Boettcher v State of New York, 256 AD2d 882 [3d Dept 1998]; Condon v State of New York, 193 AD2d 874, 875 [3d Dept 1993]).

To prevail on his claim, claimant must prove that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]). In order to constitute constructive notice, a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident to permit the defendant to discover and remedy it (Gordon, 67 NY2d at 837).

A finder of fact must consider numerous factors in assessing whether any particular situation constitutes a dangerous condition, including the injured party's familiarity with the area, whether any prior accidents have occurred and the nature of the area surrounding the defect (see Trincere v County of Suffolk, 90 NY2d 976 [1997]). In other words, whether the condition is dangerous "depends on the peculiar facts and circumstances of each case and is generally a question of fact" (Guerrieri v Summa, 193 AD2d 647 [2d Dept 1993] [internal quotation marks omitted]). The defendant "will not be held liable for injuries arising from a condition on [its] property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it" (Stanton v Town of Oyster Bay, 2 AD3d 835, 836 [2003], lv denied 3 NY3d 604 [2004]).

It is clear that defendant constructed the pier, and that its employees were aware that there sometimes was algae on the pier due to water accumulation. However, as defendant's counsel aptly argued, water on a pier is necessarily incidental to that particular use, and is not in itself a dangerous condition establishing negligence on the part of the landowner (see, e.g., Mossberg v Crow's Nest Mar. of Oceanside, 129 AD3d 683 [2d Dept 2015]; Nardi v Crowley Mar. Assoc., 292 AD2d 577 [2d Dept 2002]; Preston v Castle Pointe, LLC, 173 AD3d 1709 [4th Dept 2019]). In order to establish liability under those circumstances, the claimant must show that the condition which was allegedly the proximate cause of the injury was "unusual" or "inherently" dangerous, rather than typical of the conditions found in such an area (Moore v State of New York, UID No. 2004-018-330 [Ct Cl, Fitzpatrick, J., Sept. 16, 2004]).

In this instance, claimant assumed the risk inherent in walking (or jogging) onto the wet pier, a situation of which he was admittedly aware. Under these circumstances, the algae and water on the pier did not constitute an unreasonably dangerous condition for which defendant could be held liable. Claimant's argument that defendant must be found liable because it constructed the pier and its employees were aware of the algae is unavailing. The presence of algae was inherent to the nature of the pier, and should have been anticipated by claimant. The fact that defendant's employees were aware of the condition does not render it dangerous.

In short, this was simply an unfortunate accident. Defendant's motion to dismiss is granted, and the claim is dismissed.

Let judgment be entered accordingly.

December 17, 2020

Binghamton, New York


Judge of the Court of Claims

1. All quotes herein are taken from the Court's notes of the proceeding, unless otherwise indicated.

2. Trial Exhibit 16 at 9.

3. Id. at 15.