Opinion
Claim No. 128696
09-24-2021
Victor ALFIERI, Claimant, v. STATE of New York, Defendant.
For Claimant: NEIMARK COFFINAS & LAPP LLP, By: George G. Coffinas, Esquire For Defendant: LETITIA JAMES, Attorney General of the State of New York, By: Elizabeth Gavin, Esquire, Assistant Attorney General
For Claimant: NEIMARK COFFINAS & LAPP LLP, By: George G. Coffinas, Esquire
For Defendant: LETITIA JAMES, Attorney General of the State of New York, By: Elizabeth Gavin, Esquire, Assistant Attorney General
Ramon E. Rivera, J.
This is the Decision following the liability trial of the claim of Victor Alfieri. The claim alleges that on August 15, 2016, Claimant was injured at Rockland Lake State Park ("Park") after the wheel of his bicycle got caught on broken asphalt on the bike path, and he fell to the ground as a result of Defendant's negligent maintenance of the bike path. A virtual trial on the issue of liability was held on May 4, 2021.
The trial was heard before the Honorable Stephen J. Mignano, who has since retired from the Court of Claims. The claim was transferred to this Court and the parties have stipulated to the issue of liability being determined based upon review of the trial record, the trial recordings, the transcript, trial exhibits and submitted post-trial briefs.
The parties stipulated to admission of Claimant's Exhibits 1-13 and Defendant's Exhibits B-E into evidence. Claimant testified on his own behalf. Park Manager Christian Nielsen testified for both parties. Defendant called Investigator Adrienne DeGaetano as a witness.
Claimant, testified that on August 15, 2016, at approximately 7:30 p.m., he had a bicycle accident on the bike path at the Park. At the time of the accident, the weather was clear, and according to Claimant it was still light out. The wheel of Claimant's bicycle got caught in some broken-up asphalt at the extreme left side of an asphalt patch approximately 15 feet long and 2 ½ to 3 inches high (Exhibits 1-10). The patch, which he described as an asphalt berm, spanned the width of the bike path, it had cracks in it and the ends of the patch were broken up. Claimant testified that there are a lot of "these" patches around Rockland Lake.
All quotes are from the trial transcript unless otherwise noted.
Claimant further testified that he was familiar with the bike path as he walked or biked the path at least three times a week for the last 15 years. He was aware of the asphalt patch and its broken condition for the past year, but he did not report it to Park staff. On the day of the accident, as he approached the asphalt patch, he saw two people walking in the middle of the path toward him. He could have stopped his bicycle, but he steered to the left to avoid them, which is what he claims cyclists usually do. At the time of his fall, he was focused on the people and not on the ground.
After falling, Claimant testified that he lay on the ground for at least 45 minutes before help arrived. His cycling partner arrived first, then the Park Police and an ambulance. He does not know whether the people he was avoiding on the path called 911. He was having trouble making a call on his cellphone because his hands were numb and tingling. He denied calling 911, then conceded that he had made the call after hearing his voice on the 911 recording (Exhibit F). That call was made at 8:28 p.m. An earlier call to 911 was made at 8:12 p.m.
Christian Nielsen, the Park Manager, is in charge of overseeing day-to-day maintenance at the Park. Prior to Claimant's accident, Mr. Nielsen inspected the path two-to-three times a week checking for hazardous conditions. It is customary practice for Park personnel to report any hazardous conditions they see. The Park does not keep a record of hazardous conditions reported by employees, and they do not keep a record of repairs. He explained that the asphalt patch depicted in the photographs (Exhibits 1-10) is a patch on the pavement over a drainage pipe with "minor sections" of erosion. Mr. Nielsen testified that the pavement there is worn- something to keep an eye on- but he did not consider the patch a hazard. There were no reports of accidents at that location or complaints made about the condition of the asphalt. He further testified that at 7:30 p.m. in August there would be about 50 people in the Park, and by 8:00 p.m. that number would drop because it would be getting dark and there is no artificial lighting in the area.
The New York State Incident Report (Exhibit 11) shows that the accident was reported at 8:20 p.m. The report notes that Claimant lacerated his left cheek in a fall off his bicycle. It was noted in the Patron Accident Supplemental Report prepared by Park Police Officer Deliane Lessard that at 8:30 p.m., when he arrived at the scene, the weather was "clear," visibility was "excellent," and the pavement was "dry" (Exhibit 13). In the report under "Lighting" it is noted that it was "night" and "unlighted" (Exhibit 12).
Adrienne DeGaetano testified that she works as an Investigative Specialist 1 with the New York State Attorney General's Office. She reviewed Defendant's Exhibit E, the post-accident photographs of the asphalt patch and surrounding area taken on August 15, 2018, during her investigation conducted two years after the accident. The pictures show orange lines and the word "bump" painted on both sides of the patch. Investigator DeGaetano testified that she understood the markings to be a warning to the public of a hazardous condition. She also testified about her observance of lighting conditions during her investigation. Claimant's attorney objected, and the Court stated it would allow the testimony subject to weight. The investigator described the light at 7:15 p.m. as "getting dark," and at 7:30 p.m. as "even darker." By 8:00 p.m., it was dark and she could not see the bike path. She concluded that the tree cover shown in Claimant's pictures of the scene was the same as the tree cover shown in her photographs taken two years later (Exhibit E). [The Court has not given much weight to this testimony, given the passage of time, and the difficulty of knowing if the tree cover and other conditions were the same since Defendant's own pictures show several tree stumps in the area (Exhibit E).]
Claimant has the burden of proving Defendant's liability by a fair preponderance of the credible evidence. The trial court, in its capacity as trier of fact, must determine the testimony and evidence that is reliable and the weight to be given to each piece of evidence (1A New York Pattern Jury Instructions 1:20 at 47 [2020]).
Claimant argues that the condition of the asphalt patch was a dangerous condition, that Defendant had actual notice of the condition and failed to fix it within a reasonable period of time. Defendant argues that Claimant assumed the risk of falling from his bike by bicycling in the waning light and choosing to ride over broken-up asphalt that he knew was present.
The Court will first address Defendant's affirmative defense of assumption of the risk, because if Claimant was a participant in a qualified activity, aware of the inherent risks, the defense applies and Defendant's duty of care has been met as long as the condition of the bicycle path was as safe as it appeared to be ( Turcotte v Fell, 68 NY2d 432, 439 [1986] ). The question is whether the assumption of the risk defense even applies to Claimant riding his bicycle on the Park's asphalt covered bike path.
"In this era of comparative negligence, the doctrine of assumption of risk as an absolute defense with no liability attaching to defendant has survived in the realm of sporting or recreational activities -- what has been termed the ‘primary assumption of risk’ " ( Ginyard v State of New York , 35 Misc 3d 1222 [A] [Ct Cl, Marin, J., 2012]). The doctrine of primary assumption of risk operates to bar recovery " ‘[i]f the risks of the activity are fully comprehended or perfectly obvious, [claimant] has consented to them and defendant has performed its duty’ " ( Bukowski v Clarkson Univ. , 19 NY3d 353, 356 [2012], quoting Turcotte, 68 NY2d at 439 ). The analysis begins with first determining whether the activity at issue is a "qualified activity" ( Custodi v Town of Amherst , 20 NY3d 83, 88 [2012] ).
In Custodi , the Court of Appeals narrowed the types of activities to which the primary assumption of risk doctrine applies. "As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues" ( Custodi, 20 NY3d at 89 ). Claimant was not engaging in a sporting event or a sponsored activity. The evidence establishes that Claimant was engaging in a pursuit that was both recreational and athletic (compare Sasso v WCA Hosp., 130 AD3d 1546 [4th Dept 2015] [assumption of the risk doctrine did not apply to riding bicycle home from school]). The question turns to whether Claimant was engaged in an athletic or recreational activity at a designated venue.
Claimant was riding his bicycle on a paved "bike path" around Rockland Lake. Claimant and the Park Manager identified the area of the accident as a "bike path" in their testimony, and the summary in the Incident Report (Exhibit 11) states that Claimant fell off his bike "on the bike path". The bike path is not a public road as in Cotty v Town of Southampton, 64 AD3d 251 (2d Dept 2009), where the Second Department found that defendant failed to establish, as a matter of law, that by riding a bicycle on a paved public roadway the rider was consenting to negligent maintenance of the roadway for purposes of applying the primary assumption of risk doctrine ( id. at 255 ). In Scally v J.B., 187 AD3d 959 (2d Dept 2020), the Second Department reversed a finding of summary judgment in favor of defendant, finding operating a hover board in defendant's driveway was not a designated venue for application of the doctrine (see also, Suzanne P. v Joint Bd. of Directors of Erie-Wyoming County Soil Conservation Dist., 175 AD3d 1093 [4th Dept 2019] [plaintiff went into creek off of county hiking trails, went over waterfall created by a dam, court found that he was not wading or swimming at a designated venue, assumption of the risk did not apply]). Rather, the bike path in this case is like the lake in Jin Chung v Lehmann ( 2015 NY Misc LEXIS 3093 [Sup Ct, New York County 2015], affd 144 AD3d 563 [1st Dept 2016], lv denied 29 NY3d 902 [2017] ).In Jin Chung , the First Department affirmed the lower court's conclusion that the lake was a designated venue for wakeboarding and tubing, as well as boating and other water-related activities. Here, although the bike path is also used by pedestrians for walking, it is clearly a venue used specifically for biking. The Court finds that the bike path was a "designated venue" for bicycling.
By voluntarily participating in the activity of bicycling around Rockland Lake on the bike path, Claimant was consenting "to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation" ( O'Brien v Asphalt Green, Inc., 193 AD3d 1061, 1062-1063 [2d Dept 2021] quoting Morgan v State of New York , 90 NY2d 471, 484 [1997] ). " ‘Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation’ " (id ., quoting Mamati v City of NY Parks & Recreation, 123 AD3d 671, 672 [2d Dept 2014] [BMX biker jumped bike from one dirt mound to another on trail fully aware of condition of the mound]). " ‘If the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty’ by making the conditions as safe as they appear to be" (Mamati at 672, quoting Turcotte , 68 NY2d at 439 ). "[T]he assumption doctrine ‘applies to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on’ " ( Maddox v City of New York, 66 NY2d 270 [1985], quoting Diderou v Pinecrest Dunes, 34 AD2d 672, 673 [2d Dept 1970] ).
Claimant's recollection of the events on the evening of the accident was either poor or he was not being entirely candid. He denied calling 911, which was easily disproved by playing the 911 tape during his cross-examination. He testified that two pedestrians were present when he fell at 7:30 p.m., but the first 911 call was not made until 8:12 p.m. Nevertheless, Claimant was forthright in testifying that he was familiar with the asphalt patch on the bike path which had been there for about a year. This was relatively consistent with the testimony of the Park Manager. Claimant was also quite adamant that the usual way in which cyclists avoid pedestrians is to steer around them which he attempted to do in this case. In light of Claimant's testimony that he was familiar with this bike path and its asphalt patches, having ridden his bicycle or walked the path three times per week for the past 15 years, leads to the conclusion that the risks involved in cycling over such open and obvious rough and uneven surfaces, on which a bicycle wheel could catch, or the rider go off balance and fall, were inherent risks in the activity and reasonably foreseeable. " ‘The risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces’ " ( Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 820 [2d Dept 2007], quoting Goldberg v Town of Hempstead, 289 AD2d 198 [2d Dept 2001] ).
The Court finds Defendant has established with prima facie evidence that the doctrine of primary assumption of risk applies to Claimant in this case. Although the State of New York, like any other landowner, generally has the duty to maintain its property in a reasonably safe condition taking into account all the circumstances (see Preston v State of New York , 59 NY2d 997, 998 [1983] ), here Defendant's duty was met. Given Claimant being an avid bicyclist, with more than a decade of experience on this bike path - a path that is also commonly used by pedestrians, along with his knowledge of the crumbling asphalt, and the readily apparent risks associated with bicycling - the bike path was as safe as it appeared to be (see Bukowski at 356). As a result, it is not necessary for the Court to determine whether the condition of the asphalt, of which defendant was admittedly aware, constituted a dangerous condition that Defendant failed to remedy within a reasonable time (see Preston, 59 NY2d 997 ; Basso v Miller , 40 NY2d 233 [1976] ; Crosby v Southport , LLC, 169 AD3d 637, 640 [2d Dept 2019] ; Cupo v Karfunkel , 1 AD3d 48, 52 [2d Dept 2003] ).
Accordingly, Defendant, the State of New York is not liable for negligence and the claim is DISMISSED. The Clerk of the Court shall enter judgment consistent with this Decision.