Opinion
# 2011-015-533 Claim No. 115828
12-30-2011
FAGAN v. THE STATE OF NEW YORK
Synopsis
Following a bifurcated trial on liability, defendant was found 35% at fault and claimant was found 65% for a fall into an unguarded catch basin. Case information
UID: 2011-015-533 Claimant(s): DEBORA Y. FAGAN Claimant short name: FAGAN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115828 Motion number(s): Cross-motion number(s): Judge: FRANCIS T. COLLINS Burke, Scolamiero, Mortati & Hurd, LLP Claimant's attorney: By: Thomas A. Cullen, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Michael C. Rizzo, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: December 30, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The claim alleges the claimant, Debora Y. Fagan, was injured at approximately 10:30 p.m. on September 15, 2006 when she fell into a "ditch" at Hearthstone Point Campgrounds (Hearthstone) in Lake George, New York (Claim, ¶ 4). The trial of the matter was held in Albany, New York on August 3, 2011 and the decision herein addresses solely the issue of liability.
Claimant testified that on September 15, 2006 she drove to the Hearthstone Point Campgrounds at approximately 5:00 p.m. The claimant intended to camp at Hearthstone and attend a jazz festival to be held in the Village of Lake George. In addition to the claimant, two other individuals, Bill Mitchell and Patrick Murray, were registered for the same campsite as the claimant, campsite 65 (Exhibit 18). According to the witness, her two friends were expected to attend the jazz festival and stay at the campsite the following evening.
After registering, the claimant drove to campsite 65 but decided to utilize an adjoining campsite, campsite 66, because it was flatter "and better for tenting" (Transcript p. 12). She then prepared the campsite, setting up a tent, blowing up an air mattress, putting up a tarp and collecting firewood. In addition, the claimant ate pizza and wings and drank "about" two six-ounce glasses of wine (Transcript p. 13). At approximately 7:00 p.m. Ms. Fagan decided to take her dog for a walk and began walking toward the beach area (see Exhibit 17). She walked along a path which led to the beach and then through a parking lot, past a gazebo and onto the beach. She then left the beach area to find a restroom and return to her campsite.
Ms. Fagan also testified that she arrived at the beach at 6:30 p.m. (Transcript p. 19).
After leaving the beach, claimant walked along what she described as a "main road" within the campsite attempting to locate a restroom facility (Transcript p. 17). She described the weather as clear and warm and stated that although she had a flashlight she was not using it at the time she left the beach because "it was still light out" (Transcript p. 19). The witness next identified Exhibits 1 - 15 as a series of photographs taken the following day which depict the main road upon which the claimant was walking. Exhibit 1 depicts a road curving to the left and a short fence along the right side of the photograph which claimant testified was near a "trench" (Transcript p. 19). She then marked a photograph, Exhibit 5, to indicate the location where she observed a bathroom facility (Exhibit 5-A). She then described Exhibit 10 as depicting the roadway from the beach on the left, and to the right side of the photo a "fence and the bridge leading over to the picnic area" (Transcript p. 20). The witness testified that she did not look to see what was behind the fence at the time she was walking up the roadway, although she testified at trial that a trench approximately 8 to 12 inches deep was located behind the fence. Exhibit 11 depicts a narrow trench with a low fence running parallel on both sides of the trench.
The witness testified that once she identified the likely location of the bathroom she began walking "straight ahead toward it" (Transcript p. 22). She walked along the roadway until she arrived at a "lawn area" (Transcript p. 22). She then left the roadway intending to cut diagonally across to the restrooms. As she left the road surface she stepped up onto what she described as a "cornerstone" (Transcript p. 24) (see Exhibits 6A, 13A). She then took another step and fell into the "hole" depicted in Exhibit 15 (Transcript p. 27). Exhibit 15 depicts two low stone walls which meet at a right angle, the exterior portions of one of the walls is bordered by blacktop. Inside the angle formed by the stone walls is an excavated area which the claimant estimated to be four feet deep. The claimant's friend, Bill Mitchell, is shown in Exhibit 15 using a walking stick to determine the depth of the hole. The photograph indicates that the length of the walking stick is the same as the approximate depth of the hole. According to the claimant, who is 5'1", the walking stick came "up to [her] chin" (Transcript p. 28). Although it is apparent from the photograph received as Exhibit 15 that the hole or excavated area is large, exact dimensions other than its depth were not provided at trial.
Claimant is unsure what happened immediately after she fell into the hole. Eventually, she climbed out of the hole with the assistance of her dog pulling on the leash which was still attached to her wrist. Claimant described what transpired next as follows:
"Q. Did you feel that you needed assistance?
A. Yes.
Q. Okay. And to that end where did you go?
A. I started to go up the main hill to the ranger's station.
Q. And where was the ranger's station to your knowledge?
A. At the entrance to the park where I had registered.
Q. Okay. Do you know how much time passed before you got to the ranger station?
A. I don't.
Q. At some point did you eventually get to the ranger's station?
A. Yes.
Q. And was anybody at the ranger's station when you arrived there?
A. No." (Transcript p. 30).
Claimant remained at the ranger's station until campground personnel arrived. Claimant explained that she had fallen and was injured, and an ambulance was called. After receiving medical treatment at an area hospital, the claimant returned to her campsite by taxi. Claimant's friend, Bill Mitchell, arrived the next day, Saturday, September 16, 2006. The claimant remained at the campsite until Sunday, September 17, 2006.
On cross-examination, the claimant testified that she camped approximately three to five times each season, although she had not camped at Hearthstone Point Campground in "many, many years" (Transcript p. 16). She arrived at Hearthstone at 5:08 p.m. on September 15, 2006 and drove to her campsite (see Exhibit 18). She set up camp on campsite 66, ate pizza and chicken wings and drank two glasses of red wine. She left the campsite to walk her dog at approximately 6:15 p.m. She walked to the beach area and then along the beach, leaving the beach area at approximately 6:30 p.m. in search of restroom facilities.
Claimant was then shown Exhibit A, a copy of the notice of intention to file a claim signed by the claimant on October 19, 2006 and received by the Office of the New York State Attorney General on October 24, 2006. Paragraph 4 of the notice of intention indicates that her accident occurred "on or about September 15, 2006 at approximately 10:30 p.m." She acknowledged that she signed the notice of intention before a notary public approximately one month following her accident. She further acknowledged that the claim (Exhibit B) also states the accident occurred at 10:30 p.m.
Ms. Fagan testified that she carried her flashlight with her as she walked her dog. She did not use the flashlight, however, because lighting conditions were such that it was unnecessary. She identified Exhibits 4 and 6 as photographs depicting the roadway upon which she was walking immediately prior to her accident, as well as the cornerstone or stone wall she stepped on immediately prior to falling into the hole. The witness estimated the stone wall as approximately 8 to 12 inches in height. The stone structure is also visible in both Exhibit 1 and Exhibit 2.
Claimant testified that she observed the bathroom facilities through the woods as she walked along the main road approaching the stone wall. At that point she determined to leave the paved portion of the roadway and walk diagonally across the unpaved ground toward the restrooms . When asked whether she saw the cornerstone or stone wall depicted in Exhibit 6 "at any time before the accident" the claimant responded "not before" (Transcript p. 49).
On redirect examination the claimant examined Exhibit 19, a Supervisor's Incident Report of Personal Injury or Property Damage prepared following the incident involving the claimant at the Hearthstone Point Campground on September 15, 2006. In the box provided for recording the hour the incident occurred is the entry "about 10:30". When asked whether the 10:30 p.m. entry indicates the time she reported the accident or the time she actually fell, the claimant responded "I believe it was the time I reported" (Transcript p. 52).
Claimant next called Christopher W. Steele, an assistant caretaker who has worked at Hearthstone on a seasonal basis for nine summers. During the summer of 2006 he was employed as a Park Ranger at the campground, working five days a week with Sundays and Mondays off. He described the primary duties of a Park Ranger as providing security, patrolling each hour and assisting with complaints.
On September 15, 2006 two park rangers were on duty at Hearthstone, the witness and Jim Robinson. Although Mr. Steele recalled that at some point he became aware that an individual was at the ranger's station complaining they had suffered an injury, he could not recall any details. He did, however, recognize Ms. Fagan and could recall interacting with her on September 15, 2006.
The witness estimated a full security patrol covering all roads within the facility could generally be completed in between thirty and forty-five minutes. He identified Exhibit 10 as depicting a portion of a culvert drainage system at Hearthstone and a low wood railing intended to "just keep people or vehicles from going into it" (Transcript p. 61). The witness testified that since he began working at Hearthstone in 2003, he never observed any warning signs at or near the portion of the culvert depicted in Exhibit 6, nor were there any guardrails or fencing. In addition, there were no signs in the campground directing campers to walk only on paved roadways and nothing in the Hearthstone brochure for the year 2006 contained such an admonition (Exhibit 16). He described Exhibits 9, 14 and 15 as photographs showing a portion of the culvert system. He estimated the low stone wall surrounding the exterior portion of the culvert, as depicted in Exhibit 9, to be approximately two feet high. Mr. Steele was unaware whether an investigation of the claimant's accident was ever undertaken by park personnel.
On cross-examination the witness testified that the culvert depicted in Exhibits 9, 14 and 15 is located adjacent to a roadway which runs downhill toward the lake in an east to west direction. The road, the same road on which the claimant was walking prior to her accident, serves as a main route for individuals accessing the beach area, particularly for individuals camping on the west side of Route 9N, which bisects the campground. The witness testified that his duties as a Park Ranger include receiving complaints from campers. He had never received any such complaints regarding the portion of the culvert depicted in photographic exhibits 6, 9, 14 and 15 prior to September 15, 2006 nor was he aware of any accidents involving the culvert prior to that date.
Mr. Steele clarified on redirect examination that security patrols are performed only at night when park rangers are on duty. He estimated at least ten security patrols are performed at the campground each day.
The last witness called at trial was Frederick Parker, who testified that he has been the Facility Supervisor at Hearthstone Point Campground for 38 years. As supervisor, the witness resides in a caretaker's cabin at the campground, which he stated is located approximately two miles north of the Village of Lake George, New York.
Mr. Parker described his duties as Facility Supervisor as including oversight of staff, preparation of payroll, scheduling, reservations and financial reporting. He also occasionally receives complaints from campground patrons and reviews complaints received by other campground employees. His duties also include the preparation and review of accident reports. On the evening of September 15, 2006 Mr. Parker was in Glens Falls Hospital and not present at Hearthstone campground.
The witness estimated a total of 15 individuals are employed at Hearthstone including lifeguards, security, park rangers, cleaners and office staff. Park rangers work shifts which begin at 7:00 or 8:00 p.m. and end at approximately 4:00 a.m. the following morning. He identified the scene depicted in Exhibit 6 as an area downhill from the guest registration booth and "a couple of hundred feet" from the beach area (Transcript p. 78). The structure shown in the photograph is what he described as a catch basin designed to contain runoff coming downhill along the sides of the roadway. Rainwater is caught in the basin and then flows underground through a culvert. He estimated the catch basin has been in the same location for approximately 75 years and that the wall between the asphalt roadway and the catch basin is approximately 18 to 20 inches high and 12 inches wide. He testified that although Hearthstone hosts "over 20,000 customers per season" he had not received any complaints regarding the culvert, nor was he aware of any complaints between the time he began employment at Hearthstone in 1969 through 2006. Nor was he aware of any accidents involving the catch basin. A restroom facility located approximately "200 feet uphill and to the right" of the catch basin can be easily accessed from the paved roadway (Transcript p. 81).
On cross-examination the witness testified that there are no signs in Exhibit 6 warning campers to stay on the road and off the park grounds. He agreed that there are paths and trails through the woods connecting campsites, bathrooms and picnic areas, but stated that in his 43 years working at the campground he has never seen individuals leaving the road and walking through the trees toward the bathroom in the area depicted in Exhibit 6, which he described as "pretty rough ground" (Transcript p. 82). Mr. Parker conceded that there are no signs at Hearthstone warning campers to walk only on the roads and not on unpaved areas.
The witness testified that Exhibit 9 accurately depicts the catch basin/culvert as it existed during the period from 1969 through September 15, 2006. Lastly, he identified Exhibit 15 as depicting the catch basin, which he estimated is between four and five feet deep.
Prior to the close of proof, defense counsel read a portion of the claimant's examination before trial in which she states that she did not at any time prior to her accident observe the stone wall depicted in Exhibit 6. When asked whether her foot came in contact with the wall prior to her accident the claimant responded "I'm not sure" (Transcript p. 87).
The law is well-settled that having waived its sovereign immunity, the State, as a landowner, " 'owes the same duty of care as that of a private individual: the duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition' " (Gonzalez v State of New York, 60 AD3d 1193,1194 [2009], lv denied 13 NY3d 712 [2009], quoting Mesick v State of New York, 118 AD2d 214, 216-217 [1986]; see also Preston v State of New York, 59 NY2d 997 [1983]). As Chief Judge Cardozo stated long ago in Palsgraf v Long Is. R. R. Co. (248 NY 339 [1928]), " [t]he risk reasonably to be perceived defines the duty to be obeyed" (Id. at 344). A landowner's liability for injuries occurring on its premises is therefore determined by reference to "all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 NY2d 233, 241 [1976]). Consequently, "[t]he scope of any such duty of care varies with the foreseeability of the possible harm" (Tagle v Jakob, 97 NY2d 165, 168 [2001]).
Claimant was required to establish both the existence of a dangerous condition and that this danger was a proximate cause of her injuries. To the extent claimant relies on the failure to warn, the law is well-settled that where the injury-producing defect "can readily be observed by those employing the reasonable use of their senses" (Tarricone v State of New York, 175 AD2d 308, 309 [1991], lv denied 78 NY2d 862 [1991]), there is no duty to warn of the danger. This rule is founded on the rationale that "there should be no liability for failing to warn someone of a risk or hazard which he [or she] appreciated to the same extent as a warning would have provided"(MacDonald v City of Schenectady, 308 AD2d 125, 128 [2003] [internal quotation marks and citation omitted]). Nevertheless, while the open and obvious nature of a condition obviates the necessity for a warning, it does not absolve a landowner of its duty to maintain its premises in a reasonably safe condition (Anton v Correctional Med. Servs., Inc., 74 AD3d 1682 [2010]; Cupo v Karfunkel, 1 AD3d 48 [2003]; MacDonald v City of Schenectady, supra). Rather, the fact that a defect is obvious is a factor which "will impact the foreseeability of an accident and the comparative negligence of the injured party" (MacDonald v City of Schenectady, 308 AD2d at 129).
In the Court's view, the large opening into which the claimant stepped was clearly a foreseeably dangerous condition. Despite the failure of either party to provide specific dimensions of the "hole" or catch basin, it is sufficient to state that the open excavated area depicted in Exhibit 15 was a substantial danger given both its overall area and depth. Such an opening, four feet deep, located immediately adjoining a paved roadway, described in the testimony as a main thoroughfare for campers en route to and from the beach area, posed a substantial danger to patrons such as the claimant herein. In this regard, the Court would note the testimony established that it is common for campers to utilize unpaved areas and that there are no restrictions limiting patrons to the use of only paved surfaces.
The low natural stone wall which surrounded the catch basin on two sides did not act as a barrier protecting campground patrons from the danger posed by the four foot deep opening. Again, the Court's determination is made more difficult by the failure of the parties to actually measure the height and width of the wall. Estimates of the height of the wall varied from between 8-12 inches to two feet. In any event, there is no way in which such a structure can be viewed as adequate to prevent persons such as the claimant from encountering the danger posed by the large, open catch basin. In fact, as shown in the photographic exhibits received at trial, the stone wall served only to obscure the dangerous condition. Exhibits 1 - 6 are a series of photographs taken at various points as one approaches the low stone wall from the direction the claimant was walking with her dog preceding her accident. The catch basin located immediately behind the stone wall is not visible in any of the photographs. It is only at a point very close to the wall, perhaps a few feet, that the opening becomes visible (see Exhibit 13). Even at such a close distance, the opening is not clearly apparent given the natural, aged character of the stone used to construct both the stone wall and catch basin. The substantial depth of the opening is unable to be discerned from any of the photographs received in evidence, other than Exhibit 15, which was taken from a position directly behind the stone wall. Accordingly, the Court finds that the four-foot deep catch basin immediately adjacent to a main roadway within the campground constituted a foreseeably dangerous condition. The Court further finds the low stone wall which lined two sides of the catch basin was clearly inadequate to protect patrons from the danger posed by such a large and deep hole in the ground, in a location where campers were authorized to be.
Although no expert evidence was presented to establish that the catch basin was improperly designed or constructed, it is nevertheless well settled that expert testimony is unnecessary where the matter is not beyond the ken of a typical fact finder (see generally Mariano v Schuylerville Cent. School Dist., 309 AD2d 1116 [2003]; Franco v Muro, 224 AD2d 579 [1996]; compare Dougherty v Milliken, 163 NY 527 [1900] with Dufel v Green, 84 NY2d 795 [1995] and Selkowitz v County of Nassau, 45 NY2d 97 [1978]). Given the depth of the hole and its proximity to the roadway, the Court may conclude based upon common knowledge and experience that it was an inherently dangerous condition (see Sousie v Lansingburgh Boys & Girls Club, 291 AD2d 619 [2002]; Rojas v Supermarkets Gen. Corp., 238 AD2d 393 [1997]; Fortunato v Dover Union Free School Dist., 224 AD2d 658 [1996]). In the Court's view, no expert evidence is required to determine that an unguarded catch basin in such close proximity to the road constituted a foreseeable danger. That being said, liability may attach only if defendant either created the defective condition or had actual or constructive knowledge of its existence (Gonzalez v State of New York, 60 AD3d at 1194). Given the fact that the catch basin existed in the same central location for 75 years, the obvious nature of the hazard posed and defendant's awareness of its existence, defendant's notice of the condition was established. The fact that there was no evidence of prior accidents or complaints regarding this condition, while relevant on the issue of whether the condition may be classified as dangerous, is not determinative (see Christoforou v Lown, 120 AD2d 387, 390 [1986]). In the Court's view, the absence of prior accidents at this location is merely fortuitous given the inherently dangerous nature of the condition and its location adjacent to the roadway in a busy campground. The evidence sufficiently establishes, therefore, that defendant knew or should have known of the danger and taken steps to correct it. Defendant's negligence having been established, the Court will turn to the issue of claimant's culpable conduct.
Although, as set forth above, the stone wall obscured the view of the catch basin and the danger it posed until one was only several feet in front of the wall, the Court finds that no warning was required under the facts of this case. Despite contradictory proof regarding the time of the incident at issue, claimant testified at trial that light conditions were such that she had no need to use the flashlight she had in her possession at the time she approached and stepped onto the low stone wall. Under such conditions, it was incumbent upon the claimant to observe the open cavity before her. Just as the sheer size of the catch basin contributes to the finding that a dangerous condition existed, so too the size of the opening compels the conclusion that under normal lighting conditions the claimant should have observed the potential danger before stepping from the top of the stone wall. While the stone wall obscured the view of the catch basin from the direction the claimant was walking, the existence of the catch basin became discernable within a few feet of the wall. Certainly, the large open area was apparent to someone, such as the claimant, standing on top of the wall. For these reasons, the Court finds no breach of a duty to warn. However, there is no basis in the proof to believe claimant consciously encountered the danger posed by the catch basin by, for example, attempting to jump across it. Instead, the proof indicates the claimant failed to observe the catch basin and stepped off the stone wall directly to the ground four feet below. Under these circumstances, the Court concludes that her conduct, while a substantial causative factor in bringing about her injuries, was not so reckless as to constitute the superseding cause thereof (cf. Egan v A.J. Constr. Corp., 94 NY2d 839 [1999]; Boltax v Joy Day Camp, 67 NY2d 617 [1986]). Notably in this regard, the primary hazard associated with defendant's negligence was the foreseeable possibility that someone would traverse the wall without realizing the hazard which existed on the other side (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316-317 [1980]). The Court concludes therefore that claimant's conduct, while largely contributing to the happening of the accident, was not so reckless or unforeseeable as to constitute a superseding cause of her injuries.
Based on the foregoing, the Court concludes that the defendant was 35 % at fault and the claimant was 65 % at fault for the accident.
The Chief Clerk is directed to enter interlocutory judgment on the issue of liability in the proportions set forth above. A trial on the issue of damages will be scheduled as soon as practicable.
All motions not otherwise decided herein are denied.
Let interlocutory judgment be entered.
December 30, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims