The State's motion for summary judgment is granted in this claim alleging negligence arising from a trip and fall incident in Niagara Falls State Park. The hole, located in a grassy area away from walkways, was not a dangerous condition and there was no actual or constructive notice of its existence.
|Claimant short name:||GOBBI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||CAMPBELL & ASSOCIATES
BY: Jason Teelak, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Wendy E. Morcio, Esq.
|Third-party defendant's attorney:|
|Signature date:||March 30, 2021|
|See also (multicaptioned case)|
Claimant Raymond Gobbi seeks damages in claim no. 132518 for injuries he allegedly sustained on June 15, 2018 when he tripped and fell in a grassy area near the Native American statue in Niagara Falls State Park. Defendant State of New York moves by motion no. M-96098 for summary judgment. Claimant opposes the motion.Procedural History
On August 31, 2018, claimant served upon the Office of the Attorney General, a notice of intention to file a claim (Defendant's Exhibit A). The claim (also a part of Defendant's Exhibit A) was filed on January 14, 2019, and issue was joined by the filing of an answer on February 14, 2019 (Defendant's Exhibit B). Following discovery, claimant filed his note of issue on October 19, 2020. Shortly therafter, defendant filed this motion for summary judgment.
Deposition Testimony of Claimant Raymond Gobbi
Claimant Raymond Gobbi was deposed on July 30, 2019.(1) Claimant testified that on June 14, 2018, the day before the incident, he drove from Boston to Niagara Falls, New York with his girlfriend, Elaine Plahn, to celebrate her birthday. They arrived in Niagara Falls in the late afternoon at around 4:00 to 5:00 p.m. On the day of the incident, claimant and his girlfriend ate breakfast and rode on the Maid of the Mist. Thereafter, they saw the sights and had a late lunch. (Exhibit C, pp. 8-9, 13,16-17).
After lunch, claimant and his girlfriend walked around Niagara Falls State Park on the paved or asphalt pathways. Claimant then left the paved area and started to cross a grassy area in a straight line towards the rapids to take photographs (Exhibit C, pp. 19, 27-29, 32-34, 41-42). He testified that there was no reason why he could not have continued walking on the paved pathway. (Exhibit C, pp. 42, 60). Claimant also testified that there were no signs indicating that you were not to walk on the grass (Exhibit C, p. 60).
Claimant testified that he had taken about three steps off the pathway when his foot went into a hole that was covered with grass and debris and fell "[s]traight down to the ground." (Exhibit C, pp. 44-46, 55-56). At the time of his fall, claimant stated that he was looking straight ahead and at the crowd near the rapids (Exhibit C, p. 45). He first observed the hole after he fell. Claimant testified that the photographs of the hole were taken a month after his fall (Deposition Exhibits 1-12 which are attached as Defendant's Exhibit D) and fairly and accurately depict the condition of the hole at the time of his fall (Exhibit C, pp. 56-59).(2)
Claimant testified that after he fell, a man helped him up and to a bench. Once there, he took his shoe and sock off, tried to elevate his foot and saw that his foot was swollen. After fifteen or twenty minutes, his girlfriend helped him lie down on the grassy area where there was more shade. Claimant testified that he called over park rangers and explained what had happened and showed them the hole. They looked at his ankle, gave him some ice and took down his information. The rangers asked claimant if he wanted to go to the hospital, but he declined. (Exhibit C, 52-54).
Deposition Testimony of Elaine Plahn
On September 4, 2020, Elaine Plahn, claimant's girlfriend, testified at a deposition.(3) According to Ms. Plahn, she and the claimant traveled to Niagara Falls as a surprise trip for her fiftieth birthday (Claimant's Exhibit K, p. 7). Ms. Plahn testified that they arrived at the Seneca Casino Hotel at around 7:00 or 8:00 p.m. (Claimant's Exhibit K, p.10). The next day, they rode the Maid of the Mist and had lunch at the Hard Rock Cafe (Claimant's Exhibit K, p. 12). After lunch, they went to a gift shop, then walked to the park by an asphalt path and sat on a bench and looked at their photographs while they waited to buy tickets for the Cave of the Winds Tour (Caves). (Claimant's Exhibit K, pp. 13-15, 21-22). Ms. Plahn testified that they got up from the bench and started heading to the Caves entrance. She identified the area where they were seated and where the accident occurred as being shown in deposition Exhibit 2 (See Defendant's Exhibit D, deposition Exhibit 2).(4) According to Ms. Plahn, the accident occurred in the area of the red cone shown in the deposition photographs, although no cone was there on the day of the accident (Claimant's Exhibit K, p. 16; Defendant's Exhibit D, deposition Exhibits 1-3).
Ms. Plahn testified that the area was packed with people, even people laying on the ground, and so they cut across the grass toward the Caves (Claimant's Exhibit K, pp. 25-26). Ms. Plahn identified the area of claimant's fall as being to the right of the red cone shown in the photographs marked as deposition Exhibits 1-3 (see Defendant's Exhibit D). According to Ms. Plahn, the hole which claimant fell into was quite deep, unusually deep (Claimant's Exhibit K, p. 27).(5) She testified that the hole in deposition Exhibit 3 (see Defendant's Exhibit D) depicted the area as it looked on the date of the accident. According to Ms. Plahn, there was grass all over the hole and so they "stupidly didn't see it" as it was camouflaged with grass all over it (Claimant's Exhibit K, p. 28). She identified the hole depicted in deposition Exhibit 12 (see Defendant's Exhibit D) as looking like the hole claimant fell into. (Claimant's Exhibit K, pp. 26, 28). Ms. Plahn testified that she did not take any pictures of the hole (Claimant's Exhibit K, p. 31). She further testified that there were designated walking paths throughout the park, but that she did not see any signs warning of holes or tripping hazards and saw no signs warning to stay off the grass. Ms. Plahn admitted, however, that she was not looking for warning signs. (Claimant's Exhibit K, pp. 32-34).
Deposition Testimony of Parks Manager Robert Meidenbauer
The deposition testimony of Parks Manager Robert Meidenbauer was conducted on December 3, 2019 (Defendant's Exhibit H). Mr. Meidenbauer testified that he is employed by the Niagara Falls State Park (the Park) as the maintenance manager. He has held that position since 2015. (Defendant's Exhibit H, p. 9). From 1997 to 2007, Mr. Meidenbauer was the safety manager for all parks within the Niagara region (Defendant's Exhibit H, p. 10). As Parks Manager, he supervised up to seventy individuals in the summer and up to forty individuals in the off season. The off season was considered to be the period from November to April (Defendant's Exhibit H, pp. 11-12). The maintenance department, which included grounds, horticulture, housekeeping and trades, reported to Mr. Meidenbauer. He stated that there are approximately 10 year-round employees responsible for maintenance (Defendant's Exhibit H, p. 15, 18-19).
Part of Mr. Meidenbauer's job in June of 2018 was to look for and inspect the park for tripping hazards. His crew would maintain the asphalt pathways, the pavers, and the stairs and look for cracks, potholes, imperfections on the paths, and heaving or cracked pavers. If an employee saw a tripping hazard, he was to report it to his immediate supervisor or to Mr. Meidenbauer. He stated that a tripping hazard would be addressed immediately or the area would be blocked off if the hazard could not be fixed immediately. It was Mr. Meidenbauer's department that was responsible to repair defects in the park deemed in need of repair (Defendant's Exhibit H, pp. 28-30, 34).
According to Mr. Meidenbauer, they do not typically fix holes in the ground in the Park. He stated that the ground is "Mother Nature" and that they cannot level the entire park and "people don't want us messing with the natural terrain." He stated that they maintain the paths in the Park, keeping them as safe as possible. Mr. Meidenbauer stated that Park employees are not looking for holes in the ground but if Park employees created a hole, they would fix that hole. He testified that the Park has natural terrain which contains imperfections and that the slope of the land would not be changed. (Defendant's Exhibit H, pp. 35-37).
Mr. Meidenbauer identified the area shown in deposition Exhibits 1-3 (Defendant's Exhibit D) as being Prospect Park, which is part of the Park. He did not know who placed the orange cone that is seen in the photographs. He stated that whoever responded would have likely placed the cone, but he had no direct knowledge as he was not on-site and was not told about the incident at the time of the occurrence. Mr. Meidenbauer did not believe that one of his employees placed the cone because if they had, it would have been brought to his attention (Defendant's Exhibit H, pp. 37-40). Mr. Meidenbauer testified that the natural terrain is not an area that is typically inspected for tripping hazards as there are rocks and trees that do not get inspected. If a Park employee saw a sink hole, he stated that this would be fixed, but they do not alter the natural terrain of the Park (Defendant's Exhibit H, p. 41).
Mr. Meidenbauer testified that the grassy area shown in deposition Exhibit 3 (see Defendant's Exhibit D), is an area where his employees would mow, weed whip around trees and benches and look for trash. Employees would pick up trash in the area on a daily basis and in June, would probably mow the area once a week. (Defendant's Exhibit H, pp. 42-44). To Mr. Meidenbauer's knowledge, there are no utilities in the area of the cone in deposition exhibit 3 and maintenance was not called to address anything relating to this incident (Defendant's Exhibit H, pp. 47-49).
According to Mr. Meidenbauer, if a trip and fall incident occurs in the Park, it is reported to Park police, who would let maintenance know if there was something they should look at like a sink hole or if someone dug a hole. He stated that the Park police would probably not report a slope or depression that formed naturally as that was not something that would need to be repaired (Defendant's Exhibit H, pp. 50-52).
Mr. Meidenbauer testified that it was common for visitors to walk on the grassy areas depicted in deposition Exhibit 1 (see Defendant's Exhibit D). Maintenance would not do a formal inspection of the area but would make observations and would address any issues or problems with the grounds (Defendant's Exhibit H, p. 54).
Mr. Meidenbauer testified that he physically went through all areas of the Park once a week. He did not recall seeing the cones depicted in deposition Exhibits 1-3 (Defendant's Exhibit D) or anyone telling him that a cone had been placed. (Defendant's Exhibit H, pp. 55-58). With reference to the photo marked as deposition Exhibit 4 (Defendant's Exhibit D), Mr. Meidenbauer testified that he could see an imperfection in the ground. He had no idea what caused it or how long it had been there (Defendant's Exhibit H, pp. 60-61). With reference to the photo marked as deposition Exhibit 6, Mr. Meidenbauer testified that there are places like that depicted in the photo throughout any park, describing it as Mother Nature. According to Mr. Meidenbauer, there are natural imperfections in the ground and if they tried to fix every imperfection, they would do little else. He stated that it is a park and is not maintained like a golf course. (Defendant's Exhibit H, pp. 51-52, 65-68).(6) According to Mr. Meidenbauer, he was not aware of any complaints made to any employee of the Park regarding the condition shown in the photos or complaints about any condition similar to the one shown in the photos (Defendant's Exhibit H, pp. 68-69).Deposition Testimony of Park Worker 2 Thomas Brandon
The deposition testimony of Thomas Brandon was conducted on January 16, 2020. Mr. Brandon testified that he has been employed by New York State Parks since 2004. At the time of his deposition, he was employed as a Park Worker 2. He held this same position in 2018. At that time, he reported to Derek McClain (Defendant's Exhibit I, pp. 6-7). In June of 2018, Mr. Brandon and those under him were responsible for picking up garbage and papers, cutting the grass and weed whacking, and for ensuring that the pathways were clear of branches. According to Mr. Brandon, the park contains 35 acres (Defendant's Exhibit I, pp. 9, 11-12).
Mr. Brandon testified that people should not walk off the paths because it causes the grass to become matted down. He further testified that grass in the area depicted in deposition Exhibit 1 (Defendant's Exhibit D) did not get mowed often as it got matted down (Defendant's Exhibit I, p. 19). Mr. Brandon was not aware of an incident involving claimant tripping in a hole at the park. With reference to deposition Exhibit 4 (Defendant's Exhibit D), Mr. Brandon had no idea how the hole was created, how long the hole existed or if it served any purpose. He was not aware of any complaints regarding holes in the general area and was not aware of any other visitors tripping in holes in the area. He did not know who at maintenance would have been contacted about the incident (Claimant's Exhibit F).(7)Deposition Testimony of Trades Generalist Derek McClain(8)
The deposition of Derek McClain was conducted on January 16, 2020. As of June 15, 2018, Mr. McClain was employed through the Office of Parks, Recreation and Historic Preservation as a Trades Generalist. His duties included handing out day-to-day jobs for the maintenance and housekeeping staff. He reported to Mr. Meidenbauer. Of the ten people who reported to him in 2018, two had the responsibility to maintain the grounds: Thomas Brandon and John Dorsogna (Defendant's Exhibit J, pp. 7-9, 13). According to Mr. McClain, people stay on the pathway, but as it is a park, people do walk on the grassy areas (Defendant's Exhibit J p.20). With reference to deposition Exhibit 4 (Defendant's Exhibit D), Mr. McClain testified that he did not see a hole depicted in the picture, but a "contour of the grass." Mr. McClain had never before seen the condition shown in deposition Exhibit 4, did not know what created the condition and had no idea how long the condition had existed. According to Mr. McClain, the condition seen in deposition Exhibits 1-4 (Defendant's Exhibit D), is the contour of most of the park. It is not a condition that Mr. McClain or the people who worked for him would look for. Mr. McClain could not recall receiving any complaints about the condition depicted in deposition exhibits 1-4 (Defendant's Exhibit J, p. 28-30; see also Exhibit D).
Deposition Testimony of Public Safety Ranger Christopher Coleman
The deposition of Ranger Christopher Coleman was conducted on June 26, 2020. Ranger Coleman testified that he has been employed as a Public Safety Ranger for the State Park Police since 2017. It is a seasonal position. He usually works from May to November (Defendant's Exhibit K, pp. 7-8). Ranger Coleman testified that he was responsible for patrolling the Park and for notifying Park maintenance if he saw a hole in the sidewalk or in a road or if a tree had fallen into the road. During his patrol, he stayed on the pathways. He stated that he was not responsible for patrolling off the pathways (Defendant's Exhibit K, pp. 10-11).
If an incident occurred, Ranger Coleman testified that he would document the information based on the complainant's account. He had no responsibility to investigate the incident. Ranger Coleman did not know who placed the cone shown in deposition Exhibit 1(Defendant's Exhibit D) or when it had been placed. He became aware of the subject incident when the claimant flagged him down and told him that he had fallen into a hole and twisted an ankle. Ranger Coleman asked the claimant if he needed medical attention. Other than accepting an ice pack, Claimant declined medical attention. Ranger Coleman stated that he filled out the accident report (Defendant's Exhibit L). After taking down claimant's information, Ranger Coleman looked for the hole. He estimated that the hole was three to four inches deep (Defendant's Exhibit K, pp. 13-15, 18-20, 24).
Ranger Coleman testified that deposition Exhibit 4 (Defendant's Exhibit D), fairly and accurately depicts the way the hole looked after the incident, which was the first time Ranger Coleman had observed this hole. Ranger Coleman did not know what caused the hole to form or for how long the hole had existed or if the hole was subsequently repaired. Ranger Coleman testified that he was not aware of any visitors complaining about any holes in the ground in the park (Defendant's Exhibit K, pp. 25-29).Analysis
Summary judgment is a drastic remedy which will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 ). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 ; Zuckerman v City of New York, 49 NY2d 557 ). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562.). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 ).
As a landowner, the State has a duty to maintain its 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" (Miller v State of New York, 62 NY2d 506, 513 ). At the same time, the State is not an insurer against every injury that may occur upon its property (Clairmont v State of New York, 277 AD2d 767, 768 [3d Dept 2000]). In order to establish that the State was negligent, the claimant must prove that it either created the risk or had actual or constructive notice of its existence (Mercer v City of New York, 88 NY2d 955, 956 ). Moreover, the State is not required to provide terrain that is perfectly level (Scaduto v State of New York , 86 AD2d 682 [3d Dept 1982], affd 56 NY2d 762 ).
As a landowner, the State "has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it" (Preston v Castle Pointe, LLC, 173 AD3d 1709, 1710 [4th Dept 2019] quoting Groom v Village of Sea Cliff, 50 AD3d 1094 [2d Dept 2008]). Here, the deposition testimony and the photographs of the hole encountered by the claimant indicate that it was off the paved pathways in an area of grass, dirt and trees. It was also evident from the testimony that the hole was an imperfection in the natural terrain of the land which was inherent to the nature of the property as a state park, and that its condition could and should have been reasonably anticipated by the claimant (see Miano v Rite Aid Hdqtrs. Corp, 160 AD3d 713 [2d Dept 2018]; Torres v State, 18 AD3d 739 [2d Dept 2005]). As such, the Court finds that the defendant has met its burden of proof to establish its entitlement to summary judgement.
In opposition, claimant attempts to distinguish defendant's arguments by alleging that the hole was partially obscured by grass. Claimant admitted, however, that he was not observing where he was walking but was looking forward and ahead towards people in the park. Claimant further argues that the defendant failed to prove that it did not create the hole and failed to prove that it did not have actual or constructive knowledge of the existence of the hole.
It has been held that where a hazardous or dangerous condition is alleged to exist, the State may be liable where it created the dangerous condition or when it had actual or constructive notice of the hazardous condition and failed to take reasonable measures to correct the danger (see Friedman v State of New York, 67 NY2d 271, 286 ). Whether a dangerous or defective condition exists on property so as to create liability depends on the particular facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976 ). In the present action, the photographs of the hole and its surrounding area do not evidence a dangerous condition, but rather depict a natural hole or depression inherent to a park and part of its natural terrain. Moreover, claimant produced no evidence indicating that the State created the hole or even had prior knowledge of the existence of the hole or knew how or when the hole was created. As such, the State had no actual or constructive notice of the existence of this hole. Accordingly, as the hole does not constitute a dangerous condition and the State has no prior notice of its existence, there was no duty to warn claimant of the existence of the hole. As the claimant failed to produce evidentiary proof sufficient to raise a material issue of fact to avoid summary judgment, the defendant's motion is granted (Primax Props., LLC v Monument Agency, Inc., 158 AD3d 1336 [4th Dept 2018]).
Based on the foregoing, defendant's motion for summary judgment (M-96098) is granted and claim no. 132518 is dismissed.
March 30, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affidavit of Assistant Attorney General Wendy E. Morcio sworn to October 20, 2020, with annexed Exhibits A-L;
2. Opposing affirmation of Jason M. Telaak, Esq. dated November 30, 2020, with annexed Exhibits A-K; and
3. Reply affidavit of Assistant Attorney General Wendy E. Morcio sworn to December 2, 2020.
1. Both the defendant as the moving party and claimant as the opposing party attached to their respective motion papers a copy of claimant's deposition transcript as Exhibit C. The Court simply refers to Exhibit C as the page numbers should be the same whether utilizing defendant's or claimant's Exhibit C.
2. During claimant's deposition, his counsel identified photographs 1-12 (part of Defendant's exhibit D) as photos counsel had taken on July 19, 2018, about a month after the incident (Defendant's Exhibit C, p. 23). Claimant identified photographs which are a part of Defendant's Exhibit E as photos claimant had taken of his leg and foot (Defendant's Exhibit C, pp. 20-22). In Defendant's motion papers, the photographs in Defendant's Exhibit E are described as being a duplicate copy of the photos in Defendant's Exhibit D, although in a different order, plus the photographs claimant took of his leg and foot.
3. As claimant elected to submit the entire transcript from Ms. Plahn's deposition, the Court will refer to claimant's Exhibit K, rather than Defendant's Exhibit G which only contains selected pages from Ms. Plahn's deposition.
4. Both parties attached to their motion papers, copies of photographs. The Court will refer to the photographs attached to defendant's motion as Exhibit D as they are of better quality than the copies of photographs attached to claimant's motion papers as Exhibit D.
5. During Ms. Plahn's deposition, claimant's counsel stated that deposition photographs 1-3 were taken by someone from his office on June 18, 2018, three days after the accident. (see Claimant's Exhibit K. p. 27).
6. During Mr. Meidenbauer's deposition (Defendant's Exhibit H, p. 63), claimant's counsel identified the photographs marked as deposition exhibits 5-12 as photos he had taken after the subject incident.
7. The Court generally refers to Defendant's Exhibits as it is defendant's motion and as they are of better quality than claimant's exhibits. Here, however, defendant did not include a copy of pages 21-26 from Mr. Brandon's deposition transcript. As a result, the Court refers to claimant's exhibit even though the pages attached as claimant's exhibit F are of poor quality and difficult to read.
8. Defendant's counsel incorrectly refers to Mr. McClain in her motion papers as Derek McClean.