Opinion
# 2012-039-283 Claim No. 117482
02-17-2012
TREVELYAN v. STATE OF NEW YORK
Synopsis
Following a bifurcated trial on the issue of liability, the Court finds that claimant presented sufficient prima facie proof to establish his cause of action for negligence. The raised water valve cover that claimant tripped over while playing Frisbee in a state park was a dangerous condition about which defendant had actual notice. Defendant's negligence in maintaining its property in a reasonably safe condition was a substantial cause in bringing about claimant's injury. Applying comparative negligence principles, the Court concludes that claimant is 80% liable and defendant is 20% liable for claimant's injuries. Case information
UID: 2012-039-283 Claimant(s): NICHOLAS TREVELYAN Claimant short name: TREVELYAN Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117482 Motion number(s): Cross-motion number(s): Judge: James H. Ferreira Shulman Kessler LLP Claimant's attorney: By: Steven Shulman, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Kimberly A. Kinirons Assistant Attorney General Third-party defendant's attorney: Signature date: February 17, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Nicholas Trevelyan filed this claim with the Clerk of the Court of Claims on October 5, 2009. The claim seeks damages arising from an injury claimant incurred around noon on May 30, 2009, when he tripped over a raised water valve cover while playing Frisbee at Belmont Lake State Park (hereinafter "Park") in Babylon, New York. Claimant alleges that defendant State of New York was negligent by installing the raised water valve cover in an area where Park patrons recreate, therein creating a dangerous condition, and failing to take reasonable care to mitigate the potential danger. Defendant counters that the claimant assumed the risk of injury by playing Frisbee in the middle of a picnic area and that the raised water valve cover was open and obvious and not inherently dangerous. A trial on the issue of liability was held on August 3, 2011.Witnesses testifying on behalf of claimant included claimant and Danielle Acevedo, claimant's sister. Defendant called no witnesses. A series of photographs, Park documents and deposition testimony from claimant and Sal Buonomo, the Park Manager at the time of the accident, were received into evidence.
The Court notes that a copy of the trial transcript was attached as an exhibit to claimant's post-trial memorandum received December 7, 2011. Neither the Court nor the Office of the Court Clerk is in possession of this transcript. The Court has elected to rely exclusively on the audio electronic recording of the trial. The Court notes further that the transcript attached to claimant's post-trial memorandum is not a complete transcription of the trial. However, the Court's review of the audio recording finds that the excerpts from the trial not transcribed on the exhibit transcript are neither material nor dispositive to the Court's holding.
I. Facts
At the time claimant tripped and fell, he was playing Frisbee. Although he testified that he was playing Frisbee in an "open field", he stated that in the area he was playing there were "some trees", "picnic tables", "benches", "trash cans", standing metal barbecue units, an area to dispose hot coals, and a water fountain.No signs prohibiting Frisbee or the like were in the area. Claimant's exhibits 3 and 4, and defendant's exhibit C show the area where the accident occurred.The water valve cover claimant tripped over is a raised, circular, "metal cylinder"-like object, with the words "Water Meter" on it, standing approximately two to four inches in height (see claimant's exhibits 5 and 6). Claimant stated that the area he was playing Frisbee was approximately 15 to 20 feet from the picnic tables.
Unless otherwise indicated, all quotations are from the electronic audio recording of the trial.
Defendant's exhibit C, received into evidence without objection, also shows the area where claimant fell and reflects how the area looked the day of the accident with the exception that the cement-like circle encompassing the water valve was not present on May 30, 2009. The water fountain evident in the picture was in that same location the day of the accident.
During cross-examination, claimant stated that he played ice hockey and roller hockey, worked out, ran and played Frisbee. He stated that an open area with grass, and without trees and picnic tables, was available adjacent to the area where they had played Frisbee. Claimant acknowledged that the water valve cover was not obstructed by grass, weeds or any debris. He stated that immediately prior to his accident, he was running to catch the Frisbee as it went over his head and was looking up at the Frisbee when he tripped and fell. He acknowledged that he was not looking at the ground or in the direction he was running when he tripped.
Danielle Acevedo, claimant's sister, was sitting at a picnic table only a few feet from where claimant fell. She testified that claimant was playing Frisbee "in a picnic area." She stated that claimant was playing Frisbee "very close to" and "only a few feet" or "fifteen feet" from the picnic table where she was sitting. She also stated that the area where the accident occurred included picnic tables, trees and barbecuing units.
The deposition testimony of Sal Buonomo, the Park Manager at the time of claimant's accident, was received into evidence (see claimant's exhibit 11).Buonomo stated in his deposition that the Park comprised 459 acres (see id. at 9). He inspected the Park by vehicle on a daily basis and on some days by walking certain areas (see id. at 11). The water valve has a raised collar and a cover; by removing the cover, one can access the water valve located three to four feet below the ground (see id. at 15-16). He agreed that the area where the accident occurred is an area he would normally inspect (see id. at 18). Park staff would turn on the water valves located in the Park to provide water for bathrooms, concessions, etc. (see id. at 20-21; see also 2007 and 2008 Work Request Logs, claimant's exhibits 8 and 9 [highlighted sections]). To his knowledge, in the 18 years he had worked at the Park, no new water valves had been installed in the area where claimant fell (see id. at 28).
Both parties stipulated to the receipt of this exhibit into evidence with the exception of lines 13-22 on page 22 (see claimant's exhibit 11).
II. Discussion
As a preliminary matter, defendant argues in its post-trial memorandum that the Court lacks jurisdiction over the claim because the claim contains an inadequate description of location of claimant's accident.In relevant part, Court of Claims Act § 11 (b) requires that "[t]he claim shall state the . . . place where such claim arose." The failure to adequately set forth the location where an incident occurred is a nonwaivable defect that deprives the Court of jurisdiction and necessitates dismissal of the claim (see Czynski v State of New York, 53 AD3d 881, 883 [2008], lv denied 11 NY3d 715 [2009]; Cendales v State of New York, 2 AD3d 1165, 1168 [2003]; Wilson v State of New York, __ Misc 3d __, __, 935 NYS2d 454, 456-457 [2011]). " '[A]bsolute exactness' " is not required (see Triani v State of New York, 44 AD3d 1032, 1032 [2007], quoting Grumet v State of New York, 256 AD2d 441, 442 [1998]; see Acee v State of New York, 81 AD3d 1410, 1410 [2011]). Rather, a claim must identify the location of the accident with "sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Triani v State of New York, 44 AD3d at 1032 [internal quotation marks omitted]; see Lepkowski v State of New York, 302 AD2d 765, 766 [2003], affd 1 NY3d 201 [2003]). Because this claim is premised on an alleged defect located in an open setting, "specificity in the description of the location of the incident is of heightened significance" (Wilson v State of New York, 935 NYS2d at 458).
Although it pled compliance with Court of Claims Act § 11 (b) as an affirmative defense in its answer, defendant did not challenge the adequacy of the claim's description of the location of the accident either by a pretrial motion or during the trial, and raises the argument for the first time in its post-trial memorandum. The Court notes that the parties submitted their post-trial memoranda simultaneously and, thus, claimant has not been given the opportunity to respond to this argument.
Here, the claim states that claimant tripped over a "metal cylinder protruding out of the ground" and that "[t]he accident occurred at Belmont Lake State Park - north of the parking lot, near the northeast portion of the lake and in close proximity of the picnic area" (Claim ¶¶ 3,7). Testimony at trial established that the Park covers 459 acres. However, ariel photographs depict a relatively discrete picnic area located north and west of the parking lot and adjacent to the northeastern border of the lake (claimant's exhibits 1 and 2). Moreover, photographs of the water valve cover over which claimant tripped reveal a plainly visible metal cylinder-like object in a picnic area. Upon consideration, the Court finds that the description provided by claimant was sufficiently definite to enable defendant to promptly investigate the claim and ascertain its liability under the circumstances (see Acee v State of New York, 81 AD3d at 1411; compare Schneider v State of New York, 234 AD2d 357, 357 [1996]) and is thus jurisdictionally adequate.
Turning to the merits, it is well settled that, in order to establish a prima facie case of negligence, " 'a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff' " (Comack v VBK Realty Assoc., Ltd., 48 AD3d 611, 612 [2008], quoting Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 [2005]; see also Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]; Pulka v Edelman, 40 NY2d 781, 782 [1976]; Keating v Town of Burke, 86 AD3d 660, 660-661 [2011]; Rodriguez v Budget Rent-A-Car Sys., Inc., 44 AD3d 216, 221 [2007]; Solan v Great Neck Union Free School Dist., 43 AD3d 1035, 1036 [2007]; PJI 2:10). It is equally axiomatic that the State, as a landowner, must 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 [1984], quoting Preston v State of New York, 59 NY2d 997, 998 [1983] [internal quotation marks omitted]; see Green v State of New York, 222 AD2d 553, 554 [1995]). The State, however, "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d 1137, 1137-1138 [2008]), and "[n]egligence cannot be presumed from the mere happening of an accident" (Mochen v State of New York, 57 AD2d 719, 720 [1977]; see also Melendez v State of New York, 283 AD2d 729, 729 [2001], appeal dismissed 97 NY2d 649 [2001]).
"[W]hether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case and is generally a question of fact for the [factfinder]' " (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997], quoting Guerrieri v Summa, 193 AD2d 647, 647 [1993] [internal quotation marks omitted]; accord Grosskopf v 8320 Parkway Towers Corp., 88 AD3d 765, 765 [2011]). "[L]iability will attach when the State has had actual or constructive notice of a dangerous condition and then fails to take reasonable measures to correct the condition" (Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [1979] [citation omitted], affd 51 NY2d 892 [1980]; see also Friedman v State of New York, 67 NY2d 271, 286 [1986]; Rinaldi v State of New York, 49 AD2d 361, 363 [1975]; Carlo v State of New York, 13 Misc 3d 1222 [A] [2006], affd 51 AD3d 618 [2008]). As to causation, claimant must show "that [defendant's] conduct was a substantial causative factor" in the events that led to claimant's injury (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520 [1980]; see also Derdiarian v Felix Constr. Corp., 51 NY2d 308, 308 [1980]; PJI 2:70). The State cannot be held liable "unless its ascribed negligence is a proximate cause of the accident" (Ring v State of New York, 270 AD2d 788, 789 [2000]; see Sinski v State of New York, 2 AD3d 517, 517 [2003]; Andrews v State of New York, 168 AD2d 474, 474-475 [1990]; Lomax v State of New York, 15 Misc 3d 1105 [A] [2007]).
Upon application of these principles to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence and considering the testimony and demeanor of the witnesses, the Court finds that claimant has established, by a preponderance of the credible evidence, his claim of negligence against defendant. However, upon considering the comparative fault of claimant, the Court finds that claimant is overwhelmingly responsible for his injuries.
The Court finds that the raised water valve cover at issue in this claim was a tripping hazard, and thus a dangerous condition. The photographs show a raised metal cylinder-like object not flush with the ground, but standing, depending on where you measure, approximately two to four inches above the ground, located in an area frequented by picnickers. The Court also finds that defendant had actual notice of such condition as evident from Buonomo's deposition testimony and Park records, both of which plainly show that, prior to the accident, Park staff inspected this area and accessed this water meter by removing the water valve cover and turning the water valve on and off. As for causation, it is undisputed that claimant tripped over the water valve cover, and the Court finds that defendant's negligence in failing to maintain its property in a reasonably safe condition was a substantial causative factor in bringing about claimant's injury (see King v State of New York, UID No. 2011-045-502, Claim No. 115510, Lopez-Summa, J. [May 12, 2011]). The fact that claimant was looking at the Frisbee and not at the ground when he tripped, "while pertinent to the issue of contributory negligence, does not equate with a lack of proximate cause" (Bucich v City of New York, 111 AD2d 646, 648 [1985]; see Mazurek v Home Depot U.S.A., 303 AD2d 960, 961 [2003]).
However, while the record shows that defendant breached a duty to claimant, a Park patron, to maintain the property in a reasonably safe condition, and that such breach - the presence and location of the raised water valve cover - caused claimant to fall, claimant "was bound to see what by the proper use of [his] senses [he] might have seen" (Weigand v United Traction Co., 221 NY 39, 42 [1917]). An analysis of comparative negligence is required to determine the extent, if any, that claimant is responsible for his injuries. "Assumption of risk encompasses two distinct doctrines" (Phelan v State of New York, 11 Misc 3d 151, 166 [2005]). "The first is akin to comparative negligence and does not bar recovery, but reduces recovery in the proportion to which a claimant's culpable conduct contributed to his or her injuries" (id., citing CPLR 1411; Murphy v Polytechnic Univ., 18 Misc 3d 623, 624 [2007], affd 58 AD3d 816 [2009]).This is the doctrine applicable to the instant case, and "[a]pplication of the doctrine . . . 'is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks' " (Guzman v Iceland, 18 AD3d 704, 705 [2005], quoting Morgan v State of New York, 90 NY2d 471, 484 [1997]). Claimant's "awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff" (Maddox v City of New York, 66 NY2d 270, 278 [1985]; see also Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 [1989]; Guzman v Iceland, supra at 705; Phelan v State of New York, supra at 161).
The second doctrine, which is "referred to as primary assumption of risk . . . is not a measure of comparative fault, but a measure of the defendant's duty of care [and] generally serves as a complete bar to recovery when a claimant's injury results from the voluntary participation in a recreational activity" (Phelan v State of New York, supra at 166). "Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity" (Cotty v Town of Southampton, 64 AD3d 251, 253 [2009]).
The Court finds that claimant's own culpable conduct was also a substantial factor in his injury. Claimant, who was 24 years of age at the time of the accident, plays sports such as ice hockey and roller hockey, and participates in recreational activities like Frisbee. He concedes that he was not looking where he was running while trying to catch the Frisbee, and acknowledges that the area where he was playing contained picnic tables, garbage cans, trees, barbecue units and a water fountain. The testimony from claimant's sister similarly describes the area where claimant tripped and fell while trying to catch the Frisbee as "very close to" the picnic table.
Further, the record supports a finding that the raised water valve was open and obvious. Claimant testified that there was no debris, grass or weeds obstructing the view of the water valve. Photographs of the area show that the raised water valve cover was not concealed or hidden from plain view. "[P]roof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiff's comparative negligence" (Cupo v Karfunkel, 1 AD3d 48, 52 [2003]). Finally, the Court notes that the picnic area where the raised water valve cover is located is a venue that is not the typical wide-open space or open field a person would ordinarily choose to play a sport that requires running and chasing and catching a flying disc (see defendant's exhibit C; claimant's exhibits 3 and 4). In fact, a grass covered field without any of these obstacles was nearby and available for claimant to use. Under these circumstances, it was reasonably foreseeable that claimant's decision to play Frisbee in this picnic area, encumbered with a number of potential collision points, could result in an accident like the one that befell him.
Thus, upon weighing the evidence and considering the proof, the Court concludes that claimant has established by a preponderance of the credible evidence the cause of action sounding in negligence against defendant. The Court further concludes that based upon claimant's foregoing testimony, as well as the entirety of proof offered at trial, claimant is 80% liable and defendant is 20% liable for the injuries sustained by claimant on May 30, 2009. Any motions made at trial upon which the Court had previously reserved or which remain undecided are denied.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.
Let interlocutory judgment be entered accordingly.
February 17, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims