Briggs v State of New York

[*1] Briggs v State of New York 2005 NY Slip Op 51793(U) [9 Misc 3d 1126(A)] Decided on July 15, 2005 Court Of Claims Collins, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 15, 2005
Court of Claims

Janice Briggs, As Administratrix of the Estate of DOUGLAS J. BESWICK, (Deceased), Claimant,

against

State of New York, NEW YORK STATE THRUWAY AUTHORITY and NEW YORK STATE CANAL CORPORATION, Defendants.



107694



For Claimant:

Conway & Kirby, LLP

Andrew W. Kirby, Esquire

For Defendants:

Honorable Eliot Spitzer, Attorney General

By: Belinda A. Wagner, Esquire

Assistant Attorney General

Francis T. Collins, J.

The liability portion of this bifurcated action was tried in Albany on February 2 and 3, 2005. Claimant, the mother and duly appointed administratrix of the estate of Douglas J. Beswick, commenced this action seeking damages for the wrongful death and conscious pain and suffering of her son, Douglas J. Bestwick[FN1], who was 23 years old and unmarried at the time of his death. The claim named the State of New York, the New York State Thruway Authority and the New York State Canal Corporation as defendants.

The accident which took Douglas Beswick's life occurred at the Mohawk Hudson Bikeway and Park near Lock 8 in the Town of Rotterdam, County of Schenectady. The claim alleges that "on or about the 3rd day of February, 2002, at approximately 3:15 p.m., the deceased claimant, Douglas Beswick, was walking on the aforesaid premises and was [caused] to slip and fall down the embankment and fall into the river and sustained serious personal injuries, including hypothermia, asphyxia, drowning and death." Together the claim and claimant's bill of particulars allege that the defendants were negligent in the following respects: failed to warn of the dangerous condition of the Mohawk Hudson Bikeway, shore, canal and/or waterway; failed to inspect for dangerous conditions; failed to erect barricades, fencing, ropes, barriers or other devices to protect the public [*2]from dangerous conditions; allowed a slippery condition to exist on the bikeway; failed to restrict access; failed to have a means of rescue and failed to have a means of egress for an individual who fell into the canal and/or waterway.

Defendants' answer alleged that the decedent was comparatively negligent and assumed the risk of walking on an ice-covered bikeway; that parties other than the named defendants were responsible for the accident and the defendants were immune from suit by operation of General Obligations Law § 9-103.

The following witnesses were called and, in relevant part, testified as follows:

Claimant's first witness was State Police Investigator Kelly Strack who reported to the scene of the decedent's accident on February 3, 2002. She arrived at approximately 8:30 p.m. and took photographs of the scene which were undevelopable due to a camera malfunction. She recalled little detail about the scene except that the bank leading down to the river was covered with snow and ice and that there was no obvious path marking the decedent's descent. The witness left the scene around 9:15 p.m. and returned the following morning at 10:30 a.m. Her recollection of the scene that morning was minimal and photographs taken at that time utilizing the same camera used the previous evening were likewise not able to be developed. Cross-examination of this witness was unremarkable.

Claimant's second witness was State Police Investigator George Bird who stated that on February 3, 2002 at approximately 5:00 p.m. he responded to a call involving a drowning at Lock 8. When he arrived he observed numerous police personnel including members of the State Police and Town of Rotterdam Police Department. He also observed emergency and rescue personnel on both sides of the river. He then conversed with Trooper Maxian and Station Commander Gregg from the Fultonville State Police Barracks regarding police investigatory activity at the site. Trooper Maxian reported that he had interviewed an eyewitness and notified the decedent's mother of the incident.

Investigator Bird stated that photographs of the scene were taken that afternoon. He identified and marked one of those photographs (Exhibit 11) to show what he believed to be the starting point of the decedent's descent. The witness related that he observed an obvious indentation in the ice at the base of a small clump of trees and concluded that someone had fallen there. He also observed nearby footprints leading to the indentation. He testified that Exhibit 1 fairly and accurately depicted the conditions observed on the day of the accident including the fact that the bank had a hard covering of ice from the bike trail to the river. He was unaware of how long the icy conditions evident in the photo existed at the scene but stated his belief that there had been freezing rain in the area the night before the incident. Trooper Maxian did not provide the witness information concerning where he believed the decedent went over the eastern approach wall and entered the water.

Investigator Bird indicated that the bike path contained crushed snow and ice which he was able to walk upon without difficulty. He reported having been to the Lock 8 area in winter prior to February 3, 2002 because the area was known as one frequented by persons smoking marijuana and "involved in other things" (T 24)[FN2]. He remained at the scene for approximately 1½ to 2 hours. [*3]Although he did not make any sketches of the area while there he prepared a sketch later that night at the home of Joseph Mangano, the eyewitness to the incident previously interviewed by Trooper Maxian. He described Mr. Mangano's responses to his questions that evening as guarded but would not categorize them as untruthful or dishonest.

As a result of his investigation Investigator Bird concluded that the decedent had intentionally left the bike path, descended to the slope fronting the river and fell at the base of the clump of trees shown in the photographs. That conclusion was purportedly based on the witness's observations as well as information provided by Mr. Mangano to Trooper Maxian. The witness testified that Mangano had indicated in a deposition taken by Trooper Maxian that he and the decedent were playing on the icy, slippery bank and that decedent fell near the clump of trees. In a deposition taken by the witness later that evening Mr. Mangano related that he had intentionally slid down the slope on the ice but stopped himself before reaching the water. Investigator Bird did not return to the accident scene the following day to further his investigation because a snowfall the night of February 3, 2002 changed the character of the area. He acknowledged that he did not know exactly where the decedent entered the river.

On cross-examination Investigator Bird testified that he has been a member of the State Police continuously since September 22, 1986 and has been an investigator since December 31, 1992. He identified Exhibit H as including an investigative report which he completed along with various statements, a drawing, receipts and a report of the medical examiner. The Exhibit contains two separate statements obtained from Joseph Mangano, one completed by Trooper Maxian at 4:45 p.m. on February 3, 2002 and another obtained by the witness, consisting of two pages and a map, completed at 10:00 p.m. the same day. The report also contains a statement from Larry J. Andrews[FN3] dated March 25, 2002. Exhibit H was received in evidence over the objection of claimant's counsel with noted exceptions as set forth in the record.

The witness marked Exhibit 21 to identify the location where he believes the claimant fell. He testified that upon his arrival at the scene he was directed to a secured area where he observed "a number of footprints that were intentionally dug into the hard ice" (T 41) and an indentation which he concluded was "the indentation of a hip or another body part" (T 42). The witness disagreed that the decedent fell just off the bike path as alleged by the eyewitness. Rather, he concluded that decedent's fall actually occurred closer to the trees depicted in Exhibits 19-20 and that decedent's slide down the slope would have been interrupted by the trees if the decedent had fallen off the bike path as alleged by the eyewitness. Investigator Bird reasoned that the decedent fell after making his way to the clump of trees and then proceeded in an unobstructed fashion down the slope and into the river.

The witness next marked on Exhibit 2 the area where he observed finger marks in the icy surface of the slope purportedly made by Mr. Mangano when stopping his own intentional descent toward the river on the date of the accident. Referring to Exhibit 3 the witness described the area depicted in the photograph as an accurate representation showing a slight downward grade from the bike path to a level area and then a steeper slope which leveled off prior to the river edge. Mangano's finger marks were observed approximately four to five feet above the base of the second slope. [*4]

The witness described his action in preparing the map attached to his investigation report and indicated which aspects of the map he provided and which were supplied by Joseph Mangano. Mangano made no changes in either the written deposition or the map prior to signing the statement and initialing the map.

On redirect examination the witness admitted that he had no training as a cartographer and that the map was not drawn to scale. He further admitted that he took no measurements at the scene and that it was possible that the indentations he observed in the icy surface could have been made by a person or persons unrelated to this case. Investigator Bird acknowledged that Mr. Mangano never advised him that the footprints observed near the clump of trees were made by the decedent.

Trooper Joseph Pastulo who was employed at the Thruway Communication Center, 200 Southern Blvd. in Albany on February 3, 2002 was the next witness. He professed no recollection of the incident or any action taken by him on that day as a senior radio dispatcher. He was not cross-examined and his testimony requires no further comment.

The Court received in evidence without objection Exhibits 4-10, 12-14, 17, 18 and 22-24 which had been previously marked for identification.

The next witness was Joseph C. Mangano who testified that he had known the decedent for approximately seven to eight months prior to February 3, 2002. On that day he arrived at the decedent's house after arranging to meet by telephone. The two men stayed at decedent's home for 30-45 minutes during which they watched the X-Games on television. The witness denied that he drank any alcohol or smoked marijuana during that period of time. The two men then proceeded to Lock 8 which Mr. Mangano related was approximately eight to nine minutes away from decedent's home. Mr. Mangano denied having gone to Lock 8 with the decedent prior to the day in question.

He recalled that prior to February 3, 2002 the weather had been stormy with a snowstorm followed by ice and freezing rain. He described the weather on February 3, however, as nice. The witness denied that either he or the decedent smoked marijuana or drank alcohol as they drove to the lock in the witness's truck. The witness offered the following description of their actions after exiting the truck in the Lock 8 parking area (T 74):

A. Well, we walked on the bike trail and we were walking, you know, towards the right and realized how slippery it was on the bike trail, and then I recall myself, you know, kind of playing around the ice, kind of sliding back and forth, and there was if you can see the hills, it was kind of a drop then it would level out again, and then it would drop again, and what I did is I actually sat on my butt and I kind of nudged my way down off the bike trail and I slid down to that first level, and thank God, you know, I had nails so I could get my a grip and stop myself, and then I proceeded to move to the left and grabbed a chain and was able to pull myself back up to the top of the bike trail.

The witness stated that Exhibit 13 shows the slope down which he slid and Exhibit 7 depicts his starting point (indicated by green pen mark).

Upon further questioning the witness in relevant part offered the following testimony:

Q. Now, when you got up from the hill, did you say anything to Doug? [*5]

A. Well, I told him you know, I told him how slippery it was. Obviously, he knew how slippery it was too because he was right next to me, and he seen me, you know, go actually go down the first slope.

Q. What and explain what did you do after that, the both of you.

A. Well, after I got back on top of the hill onto the bike trail, as I was walking over to him, he was playing, you know, off the bike trail a little bit, sliding back and forth and lost his footing.

Q. Now, when you say he was sliding back and forth, was he sliding back and forth on the bike path itself?

A. No, not directly on the bike path, no.

Q. Does Exhibit 7 show the area in which he was sliding back and forth as you described?

A. Yes. Do you want me to mark it?

Q. If you can, with the green pencil.

(Witness marks document.)

Q. Now, you've made a mark that's above the green mark that you previously made where you were.

THE COURT: Can I see it, please?

(Photograph proffered to the Court.)

Q. You indicated where you had started to slide down, correct?

A. Correct.

THE COURT: We need another can I have a red do you have a red marking pencil? Circle your second mark, sir, the one which indicates the area of where the decedent was sliding back and forth with a circle it with that red pen, please.

(Witness marks document.)

Q. I'm going to show you Exhibit 5, J.C.

THE COURT: Before you do, just for the purpose of my notes, you indicated that the decedent was sliding back and forth in the area slightly off the bike trail [*6]

THE WITNESS: Correct.

THE COURT: which you indicated on the photo, correct?

THE WITNESS: Correct.

THE COURT: What happened then?

THE WITNESS: After he lost his footing

THE COURT: Just tell me what happened. He was sliding back and forth. What happened next?

THE WITNESS: He lost his footing and slid down the hill.

THE COURT: Okay, thank you.

BY MR. KIRBY:

Q. I'm going to show you, J.C., another photograph looking up on the slope.

(Photograph proffered.)

Q. And can you, using that photograph, indicate where it was Doug was when he lost his footing, as you've just described.

A. Yes. X it?

Q. M-m h-m-m.

(Witness marks document.)

Q. In Exhibit 5, J.C., there's a you've marked it to the right of several trees, is that correct?

A. Correct.

Q. Okay.

A. Well, it's actually it's to the left.

Q. As you're looking down at the river, it would be to the left of the trees?

A. Yes. [*7]

Q. Okay. And about how far away from those trees was Doug when he slipped?

A. I'd say about ten to twelve feet.

Q. Doug or J.C., I'm sorry for making that mistake. Exhibit 15, does that show the bike path in the area of where Doug was when he slipped and started falling or sliding down the hill?

A. Yes.

Q. And can you indicate on that exhibit with an X where you saw Doug lose his footing and start going down.

(Witness marks document.)

Q. And as you're and what direction, by the way, were you two walking?

A. We were walking to the right down the bike path.

Q. Down the bike path.

THE COURT: Sir

Q. West to east.

THE COURT: you were walking to the right as

THE WITNESS: Right.

THE COURT: you were standing looking at the river?

THE WITNESS: Correct.

THE COURT: M-M h-m-m.

Q. And the river would have been on on your left, correct?

A. Correct.

Q. Okay. Now, when when Doug was sliding back and forth, was he going perpendicular to the river?

A. He was going parallel with the bike path. [*8]

Q. Bike path. Okay. So he was sliding forward more or less?

A. Correct.

Q. Okay. What were you doing at that time?

A. I was walking back towards him.

Q. Now, how were you planning on getting down to where strike that. Where you heading towards? What were you trying to get to?

A. We really didn't have no plans of going anywhere. We just came to the lock.

Q. Okay. Now, after you saw Doug fall, where did he end up going?

A. Into the river.

After the decedent's fall and slide down the slope the witness went to the area of the bike path where decedent started his descent and watched his friend go into the river. He then proceeded east on the bike trail and saw the decedent in the river. He proceeded down through the woods to the river where he observed the decedent approximately 20-25 feet from shore and shouted to him to keep swimming. The decedent reportedly said that it was cold and his clothes were dragging him down. The decedent then went under the water and disappeared. Mangano returned to his truck and drove to the Rotterdam Police Department. He saw no lifelines or life preservers at the scene and did not call out for help. On Defendants' Exhibit A the witness marked with a green pen the approximate location of decedent's slide.

Mangano attempted to report the accident at the Rotterdam Police station which was closed. He did, however, report it to an unidentified individual he met in the parking lot of the police station and that person used a two-way radio to report the incident. Mr. Mangano recalled that he then returned to Lock 8 and gave a statement regarding the accident to police. He also remembered talking to a Rotterdam police officer and someone who might have been a State Trooper at his house that night. At that time he made some marks on a map which the police provided (Exhibit H) but at trial he stated that the decedent's slide began to the left of the trees as one faces the river rather than in the area indicated on the map which is to the right of the trees. He recalled the decedent's slide down the slope to the water as being more or less in a straight line.

With regard to the decedent's actions preceding his fall the witness stated that he observed the decedent slide back and forth seven or eight times prior to his fall. He did not recall whether the decedent was facing the river or down the bike path as he slid.

On cross-examination Mangano testified that he was 19 years old on the date of this incident and was a student at a local community college. On that day the witness arrived at the decedent's home "around noonish" (T 101) and proceeded to watch the X-Games which feature extreme winter sports including snowboarding, snow biking and extreme skiing. He testified that he and the decedent left the house "around one" (T 102) and went to the lock to smoke marijuana which the [*9]decedent had rolled into a joint and placed in his pocket. The witness denied that either of them smoked the marijuana prior to arriving at the lock.

Due to a winter storm ice was visible in the witness's yard, on the trees and on the slope near the lock. At the lock the witness wanted to see how slippery the slope was so he slid down the slope "on his butt" (T 103). As he slid down the slope 10 to 15 feet he became scared and dug his fingers into the icy surface to arrest his descent. He could see that the river was open and free flowing. Mr. Mangano denied that the decedent laughed at him after he climbed back up the slope and arrived at the bike trail despite being shown the second of the two sworn statements he gave to police in which he stated that Doug (the decedent) was laughing at him when he got back to the bike trail. When asked whether he told the decedent the slope was icy and slippery he stated "Yes I did. He knew that." (T 106). Mangano testified that the decedent was sliding about five feet off the riverside edge of the bike trail. He stated that the decedent was facing the river and sliding parallel to the bike trail first in one direction then in the opposite direction. The decedent lost his footing and fell on his backside.

The witness alleged that decedent's fall occurred approximately 10 minutes after their arrival at the lock. In the first of the two sworn statements given to police Mr. Mangano said: "We had just started walking the trail when Doug stepped off the trail onto the icy bank that goes down from the trail to the canal. He was just playing around on the icy slippery bank". He acknowledged that the statement did not include any reference to the decedent's action of sliding back and forth on the bank.

With reference to the second sworn statement the witness admitted that he stated "when we got near a set of trees and Doug put his feet in the ice and beyond the clump of trees is when he slipped and slid down the hill". He attempted to explain that he meant to say Doug put his feet "on" the ice not "in" the ice. He acknowledged that he did not tell the police at the taking of the second statement that the decedent was sliding back and forth parallel to the river prior to his fall. The witness sought to explain the discrepancy regarding the location of the decedent's fall relative to the clump of trees shown in various photographic exhibits by stating that on the afternoon and evening of this tragic accident he was upset and now that he "can think about it . . . [he] believes he was before those trees" (T 117).

Mangano denied having attempted any maneuvers he and the decedent had seen that afternoon on the X-Games. Finally, in contradiction of his direct testimony, Mangano acknowledged that he and the decedent had been to Lock 8 about one month prior to February 3, 2002 to smoke marijuana but had not ventured onto the slope on that occasion.

On redirect examination the witness related that he saw 5-10 rescue and law enforcement personnel walking in the area off the bike path near the clump of trees.

A brief re-cross-examination centered on the information given to State Police personnel regarding the point at which he saw the decedent enter the river and the general area near the clump of trees where the decedent's descent began.

The Court conducted a short examination of the witness regarding a conversation Mangano had with the decedent after his aborted slide down the slope. The witness testified that he told the decedent the slope was "really slippery" (T 126).

Seth Hendrick, an assistant traffic supervisor with the New York State Thruway Authority was called as claimant's next witness. He stated that on February 3, 2002 he was notified by a senior dispatcher (Joseph Pastula) of a possible drowning at the Rotterdam lock. He reported that he had [*10]never investigated anyone falling into the water at a lock but had investigated reports of people swimming, fishing and trespassing at locks other than Lock 8.

The witness had no knowledge regarding the division of jurisdiction over the subject area between the Canal Corporation and the Thruway Authority. Upon arriving at the scene he took photographs with his camera but did not take any measurements. He observed an ongoing search and rescue operation involving divers, helicopters and other personnel. He did not make any determination regarding the decedent's point of entry into the water or his starting point on the slope. While at the scene the witness remained in the company of retired State Police Sergeant Randy Greg who showed him various areas including one containing "footprints in the snow between two bushes" (T 132) where the decedent might have begun his slide. He photographed that area.

Mr. Hendrick identified Exhibits 1-24 as the photographs he took at the scene on February 3, 2002 and testified that they fairly and accurately depict the conditions as he observed them that day. He testified to the presence of approximately 50 people at the scene during the 1-1½ hours he was present. He observed that those who were walking on the slope near the woods depicted in some of the photographs had difficulty keeping their footing and believed that sand was brought to the scene although he was unsure by whom. The witness was also unsure whether anyone else photographed the scene that day.

On cross-examination the witness indicated that he observed people at the scene experiencing difficulty walking on the slope and other snow and ice covered areas.

The next witness was Garret O'Connor, an employee of the New York State Canal Corporation, whose duties include the administration of permits and leases on canal land. He testified that the bike path at Lock 8 exists pursuant to a permit issued by the Canal Corporation to Schenectady County. The witness believed that the State Department of Transportation (DOT) assisted in the creation of the bike path in the 1970s but was unsure of the extent of the State's actual involvement. He acknowledged that the land where the lock is located, including the slope and the area where picnic tables are situated, is owned by the State of New York. He was unsure, however, how far up the slope the State's ownership rights extended. According to the witness no recent survey has been conducted and generally the State has relied upon historic maps from the turn of the century.

The witness did not know what work had been performed on the approach wall at or near Lock 8 since it was initially installed but was certain that some work had been done there. He did not know when the picnic tables were placed near the lock or when the slope near the tables was last changed or modified.

The witness could not identify the photographer who took the photos identified at trial as defendants' Exhibits A-C nor could he explain why or when the photos were taken. Exhibits B and C were received in evidence. Exhibit A had been received previously. The witness recognized the area depicted in the photographs and noted the labels in the border surrounding each photograph. He acknowledged that the approach wall shown in Exhibits A and B falls under the Canal Corporation's jurisdiction and is maintained by it. He did not know whether the picnic tables are owned or maintained by the Canal Corporation although he stated the land on which they are situated is owned by the Corporation.

The witness admitted being aware of a Canal Revitalization Program which occurred in the mid 1990s but did not know if Lock 8 was one of the areas designated for revitalization. The plan [*11]was set forth in a spiral-bound book format and indicates which areas of the canal system the drafters of the plan wished to see enhanced.

The witness was unable to state the approximate height of the approach wall or the depth of the river at or near the section of the wall in the vicinity of the picnic tables. He would not state that the Canal Corporation encouraged the use of the picnic area at Lock 8 except to admit that tables were placed there. The witness was not aware of any Canal Corporation restrictions regarding use of the area by the public.

Mr. O'Connor was aware that the public used the bike path near Lock 8 during the winter months but did not know what specific activities the public engaged in on the path. He also knew that the bollards depicted in defendants' Exhibits A-C were commonly used by boats waiting to go through Lock 8 and that there were ladders built into the approach wall to assist boaters in exiting their crafts.

According to the witness railings such as those visible in Exhibit 23 were placed around the lock area to protect lock workers as well as members of the public who might venture into that area. He never saw any maps, drawings or plans recommending placement of railings along the approach wall and was not privy to any discussions regarding placement of a fence in that area. He was unfamiliar with any study or discussion regarding the placement of lifelines or life rings in the area depicted in defendants' Exhibits A-C prior to February 2002. He did not know where life rings and lifelines were kept at Lock 8 or how many such devices were available. The witness had seen photographs of another lock, Lock C-4 on the Champlain Canal, where there are railings near the picnic area. Mr. O'Connor opined that fencing the area of the approach wall was impractical since it was a recreational area used for fishing and provided a place for boaters to alight from their vessels.

The witness did not know if there was a standing rule or order regarding the number of life lines or life rings required to be placed at a lock. While acknowledging that locks are subject to inspection he did not know the matters covered by the inspections.

On cross-examination the witness stated that his formal title is that of Permit Coordinator and as such he administers land use permits and leases for canal lands and oversees the use of canal lands by municipalities, private individuals and corporations. The witness related that in February, 2002 there was in effect a permit authorizing the County of Schenectady to use a portion of the land at Lock 8 for a bike trail and transferring all maintenance responsibility over the permitted area to the county.

Claimant's next witness was James Carangelo, a member of the Rotterdam Junction Volunteer Fire Department who responded to Lock 8 on February 3, 2002 pursuant to a call received from the Rotterdam Police Department at 2:35 p.m. The Schonowe Fire Department apparatus was already at the scene when Carangelo arrived. He and his department members were directed to walk east on the bike path to look for anyone or anything "clinging to the trees or whatever" (T 174). He noticed an area which had been marked as the probable area of the decedent's fall. Referring to Exhibit 15 the witness recalled the area of the purported fall to be within two or three feet of the green "X" marked on Exhibit 15.

Mr. Carangelo remembered the weather on the day prior to the incident as cold and raining and that the snow had crusted over. He described the bike path as packed down due to traffic of cross-country skiers and snowmobilers. He did not venture onto the slope but stayed on the path as [*12]he performed his assigned duties.

The witness related that he regularly used the bike path to bicycle in summer and to cross-country ski in winter. He had never responded to a falling incident at Lock 8 prior to the date in question.

On cross-examination the witness stated that he returned to the firehouse at 6:15 p.m. He testified that accident calls received prior to the subject accident by the Rotterdam Junction Fire Department regarding the bike path at Lock 8 involved bicycle accidents.

Joseph Coppola was claimant's next witness. He was also a member of the Rotterdam Junction Fire Department who, like James Carangelo, responded to a mutual aid call from the Schonowe Fire Department. He too was directed to walk the bike path and look for decedent or his body. The witness testified that he understood the decedent fell at the location marked by a green "X" on Exhibit 15 which he identified as the same area where a marker had been placed on February 3, 2002. The path and the adjacent slope were described as "snowy and ice" (T 182). He did not recall weather conditions on the day prior to the accident.

On cross-examination the witness indicated that he was President of the Rotterdam Junction Fire Department in February 2002 and had no direct knowledge or recollection regarding the place where the decedent began his descent into the river. There was no redirect examination of this witness.

David Nelson, the brother of claimant Janice Briggs, next testified for the claimant. He alleged that upon learning of the accident at approximately 4:00 p.m. he and his nephew Dominic Criello went to the scene. After arriving he stood and watched the activities of rescue personnel. He recalled that there had been an ice storm the night before the accident. He alleged that the river was flowing fast near the dam but it appeared frozen below that point.

On cross-examination the witness was shown Exhibits 23, 22, 19 and 11 and acknowledged that as depicted in those photos the river was free flowing in all directions and not frozen as he testified on direct examination.

Richard Maxian, a New York State Trooper, was claimant's next witness. On February 3, 2002 Trooper Maxian was dispatched to Lock 8 to investigate a reported drowning. He recalled the day as cloudy and stated that an ice storm had occurred in the recent past although he was unable to specify a precise date. There were police and civilians at the scene when he arrived. He talked to several people including a young man in a Rotterdam Police car from whom he took a written statement. He recalled the area leading to the edge of the canal as icy. He saw no markings on the ground to indicate the decedent's path. The witness left the scene with a Rotterdam policeman to notify the family of the missing person. He performed no investigatory functions at the scene other than taking the statement of Joseph Mangano.

On cross-examination Trooper Maxian stated that he advised Joseph Mangano to tell the truth prior to the taking of the statement and afforded Mr. Mangano an opportunity to read and correct his statement prior to signing. The witness averred that Mangano had not indicated why he and the decedent were at Lock 8 except to say that they "were walking there" (T 200). Upon the completion of his statement the witness advised Mangano that he was free to go.

The witness's redirect examination was unremarkable.

Joseph Ryan, the Director of Public Works for the County of Schenectady in February 2002 was claimant's next witness. The witness testified that the Lock 8 bike path is not plowed in the [*13]winter when it is used primarily by cross-country skiers and snowshoers. The witness related, somewhat anecdotally, that the bike path had been a towpath for the barge canal which was constructed by the State and turned over to various localities. This portion of the bike path was sponsored by the County of Schenectady. Exhibit 41, consisting of a memo from the Schenectady County Attorney, a map and a real estate permit for use and occupancy of Canal Corporation property signed in 1977, was received in evidence without objection.

Mr. Ryan testified that the County spread sand at the scene so that search and rescue personnel could approach the lock area. With regard to maintenance of the bike path, the witness indicated that Schenectady County is responsible for the eight-foot-wide path itself as well as for a couple of feet on either side. The County inspects the path monthly for downed trees, broken signs or other items or things needing repair. The County is responsible to maintain the bike path right-of-way only and has no maintenance responsibilities for the slope or picnic area at Lock 8.

The State's cross-examination of the witness included questions regarding the State permit issued in the 1970s. The witness testified that the County of Schenectady "maintained an area of the bike path from beginning at the Community College and the terminus would be at Strafford Road in Rotterdam Junction" (T 214) including the portion of the path at Lock 8 on a year-round basis. Exhibit 41 specifies the permitted area is 15 feet wide on the westerly side of Lock Number 8, Erie Canal, along the towpath. The witness stated that the asphalt portion of the bike path is generally 8 feet wide with some variations of width particularly where vehicle crossings are located.

The witness served as Deputy Director of Public Works for approximately two years prior to being appointed Director. In either title he could recall having received only one complaint regarding the bike path in the area of Lock 8 and that related to parking bumpers in the parking lot which had been pushed onto the path. Other complaints not specific to the Lock 8 area were routine complaints related to the trail surface which were received prior to a repaving project in 2000. The witness could recall no complaints related to safety at or near Lock 8 and knew of no incidents similar to the one involving the decedent. It was his understanding that the Town of Rotterdam owned a majority portion of the bike trail near Lock 8. He was unsure of the ownership of the parking area but knew that it was not maintained by the County of Schenectady except that the County had planted shrubbery adjacent to the parking lot and installed some railroad ties. The witness was unable to testify as to whether the planned improvements set forth on defendants' Exhibit J were fully implemented or were revised. There was no redirect examination of this witness.

The next witness was Nicholas Bottisti who is employed by the Canal Corporation as a Canal Structure Operator. In February 2002 the witness worked a 40-hour week, Monday through Friday 7:00 a.m. to 3:30 p.m. The witness did not recall having previously seen a document entitled On-The-Job Canal Structure Operator Training - 1993 which was shown to him at trial. He denied any knowledge of the extent of the Canal Corporation's ownership of land on either side of Lock 8 but expressed familiarity with the approach wall and picnic area which were present in 1998 when he began working at Lock 8. Mr. Bottisti testified that Canal Corporation employees mowed the grass and picked up litter at the Lock 8 picnic area. He identified the grass and gravel road depicted in defendants' Exhibit C as an access road used by the Canal Corporation to maintain the area but did not know who owned the road. The Canal Corporation did not plow, sand or salt this access road in winter. The area around the lock is open from 7:00 a.m. to 11:00 p.m. year-round according to [*14]the witness. No railing was placed east of the lock along the approach wall during this witness's tenure and during the winter visitors in the picnic area were rare. He had observed people using the bike path during the winter.

The witness knew of no lifelines or life rings installed in the areas depicted in defendants' Exhibits A and C between April 1998 and February 2002. It was not part of the witness's duties to place lifelines or life rings in the area. Prior to February 2002 the witness never saw anyone swimming or jumping off the approach wall and he never had occasion to use a lifeline or life ring at Lock 8 except to practice throwing them approximately once per year. In February 2002 life rings were located in the middle of the abutments holding the structure over the lock. They were located outside the structure but within an enclosure. He marked Exhibit 14 to show the location of the life rings.

The witness had no discussions with anyone at the Canal Corporation regarding the use or installation of railings along the approach wall at anytime prior to the February 2002 accident.

On cross-examination the witness testified that in the summertime he sees people fishing by the eastern or lower approach wall and others watching boats go back and forth. Some boaters tie their vessels to the wall while waiting to go through the lock. No fees are charged those who fish or picnic in the area of the approach wall or those who hike across the property to enjoy the scenery. He admitted that he has seen employees of an entity other than the Canal Corporation mow the area of the bike trail. The witness testified that he generally does not pay attention to people using the picnic area near the approach wall. No plowing is done in winter, no abrasives are applied to provide access to the river for fishermen and no effort is made to clear the area around the tables of snow and ice. The witness was not subjected to a redirect examination.

Robert Wiss was claimant's next witness. He related that he has been employed by the Canal Corporation or Thruway Authority on a full-time basis since the Spring of 1992. He was initially hired by the Canal Corporation as a seasonal employee (May-November) at Lock 3 in Waterford and again as a seasonal employee at Lock 5 which is located one-half mile west of Lock 3. His next assignment was at Lock 6 which is located an eighth of a mile west of Lock 5. Lock 5 and Lock 6 have picnic areas located next to the lock chambers (T 260-262) and each had a railing between the picnic area and the lock chamber.

Claimant's Exhibit 39 entitled On-The-Job Canal Structure Operator Training - 1993 was identified by the witness and received in evidence over defense counsel's objections. That document provides that life preservers with handlines were to be provided and placed one on each side in the center of the lock, with a surrounding enclosure. Additionally it stated handlines of adequate size and length should be placed in the control cabin at each end of the lock. The witness recalled that the size or circumference of life rings was increased at some point during his tenure.

Mr. Wiss was appointed Chief Lock Operator at Lock 8 in 1998. He did not recall receiving periodic instructions in either lock operation or the use of lifelines or life rings. While the witness recognized the area depicted in defendants' Exhibit A he did not know who took the photo and denied being part of any study or analysis of the lock in January 2002. He testified that from 1998 to 2002 no picnic tables were added at Lock 8. While the public was permitted to use the tables they were not specifically invited or encouraged to use them.

The witness was not familiar with the canal system revitalization program allegedly initiated in 1995 as it affected Lock 8 and he had never visited the Canal Corporation's web page. Fishing [*15]was the most common use of the area depicted in defendants' Exhibit A. During winter the area is generally used by sightseers. While mowing is done by the Canal Corporation up to the bike path the witness stated that he has no responsibility for the path itself. The access road depicted in defendants' Exhibit C is used by the Canal Corporation but the witness did not know who owns the road. It is never plowed or sanded in winter. Mr. Wiss could not recall any training or instruction regarding the public's use of the picnic area.

The witness knew of no one who had fallen off the approach wall prior to February, 2002 and had never seen anyone swimming in that area. He acknowledged that there were no railings, lifelines or life rings in the area of the approach wall and none were contemplated or discussed prior to the subject accident. The only railings at the site were around the perimeter of the lock chambers. The witness described the bollards located along the eastern approach wall as instruments to which boats could be tied off and the ladders built into the approach wall as designed to allow boaters to access the land.

The witness estimated the distance from the top of the steel approach wall to the water line as approximately 10 feet. In February 2002 the river was not frozen and the current flowed to the east. There were no public telephones in the area of the lock or the adjacent picnic area.

Between 1998 and February 2002 the witness placed two life rings in the center of the lock on each side and placed one ring at the upper and one at the lower end of the chamber. The number of lifelines, however, did not increase during that period. Lifelines were kept inside the control cabins (see Exhibit 14 and 23) which were locked when not occupied. Life ring placement was identified using Exhibit 23. The witness's testimony in this regard mirrored that of Nicholas Bottisti discussed above. The access road at the site was improved with additional stone laid by Canal Corporation employees in 2000.

On cross-examination Mr. Wiss related that the canal navigational season runs from May to November. The witness explained the general operation of Lock 8, including the use of the dam, lock chamber and gates. In winter the equipment is dismantled and serviced by him and his assistants. He, like Mr. Bottisti before him, testified that the public is not charged a fee to fish from the approach wall, to use the picnic tables or grills in the area or to hike on Canal Corporation property.

The witness never saw anyone swim in the area of the lower approach wall and was unaware of anyone falling into the river from that area prior to this incident. No winter maintenance is performed by Canal Corporation employees in the picnic area. He stated that he was not aware of any complaints regarding the lack of a railing or a fence at the lower approach wall.

On redirect examination Mr. Wiss reiterated that the only railings at Lock 8 are those surrounding the lock itself. He described public use of the area during winter as minimal and never considered placing life rings in the picnic area for use by wintertime visitors since "there's nobody down there" (T 311). The witness did not consider it feasible to close off the approach wall area in winter.

On re-cross-examination the witness agreed with defense counsel that access to the railing on the north side of the lock could only be gained by crossing the gates where access is restricted to employees only.

The claimant's final witness was Steven Sweeney, an engineer with the New York State Thruway Authority who became a Canal Corporation employee in March 2000. Prior to that date [*16]he had been employed as an engineer by the New York State Department of Transportation (DOT) beginning in September 1977. Mr. Sweeney became a licensed engineer in New York State in 1984 and from 2000 to the present has overseen maintenance and operation of approximately one-third of the canal system, including Lock 8. He related being familiar with a 1990 plan to improve the southeastern approach area at Lock 8 when he was employed by DOT. The improvement was necessitated by the deterioration of the prior concrete wall's foundation. The witness was unaware whether there were picnic tables in the area before the improvement but upon his review of the 1990 plans noted that the slope of the area behind the wall was "changed somewhat" (T 321) as a result of the project. He did not know, however, whether the slope of the area from the bike path to the river was increased or decreased.

Exhibits 43, 44 and 45 were received in evidence without objection. The witness agreed with counsel's observation that Exhibit 44, which he described as depicting the "layout of Lock 8 southeast approach wall . . . back in 1990 before the work was done" (T 326), contains a reference to a fence although he was unfamiliar with the fence's appearance or composition. He further agreed that the fence was likely removed as part of the renovation but did not know why the fence would have been installed in the first instance. Exhibit 45, drawing number 7, shows the new slope but not the old slope. It appears from the drawing that part of the renovation included the creation of an anchor wall located beneath the slope which was connected to the new approach wall to prevent it from being moved by the river's current as the old wall had been.

Life ring and lifeline placement at the various locks was under the witness's jurisdiction but he played no role in their actual placement at the site. According to general standards developed by the Thruway Authority Safety Office life rings should be located "within approximately 100 feet of access" (T 331). The witness took no part in nor was he privy to any discussion from 1990 through February 2002 regarding the erection of a barricade or fencing along the eastern approach wall at Lock 8.

Mr. Sweeney admitted being familiar with the Canal Recreation Water Plan which encourages use of lock areas by the public. This was accomplished by the placement of picnic tables and other amenities adjacent to locks.

The witness could not identify the person who took the photograph received as defendants' Exhibit A. He acknowledged that minor structures at Lock 8 are inspected in-house every few years. He did not know if Exhibit A was taken as part of an inspection of Lock 8 but indicated that photos are often taken to document conditions encountered during the inspection process. He was unaware of any problems detected during a January 2002 inspection of Lock 8 . The witness agreed with counsel's suggestion that the soil in the area housing the picnic tables shown in the photograph (Exhibit A) would have been removed and replaced during the 1990 renovation. On the day following the accident the witness visited the site and noted that the water level was 1½ feet above normal.

On cross-examination the witness stated that he did not know the purpose of the fence depicted in the 1990 drawing. He averred that a fence was not required in the area shown in the drawing and he was not aware of any complaints received regarding its removal. He also testified that he visited Lock 8 the Monday following the decedent's accident. He noted at that time that the water level was 9½ feet below the top of the approach wall. Mr. Sweeney then testified that the ladders attached to the approach wall are more than 9½ feet in length. [*17]

While the witness receives complaints regarding the locks he oversees as part of his normal duties no complaints were made regarding either the lack of fencing at the Lock 8 approach wall or the steepness of the slope from the bike path to the river at this lock prior to February 3, 2002 .

On redirect examination the witness stated that the area near the southeastern approach wall which includes the picnic tables was generally level with perhaps a slight downward slope toward the river. He was unaware of any studies regarding placement of fencing or barricades on the approach walls of canal locks.

Upon the conclusion of this witness's testimony claimant rested. Defense counsel moved to dismiss the claim and then called Janice Briggs to the stand.

Janice Briggs testified that her son visited the Lock 8 area "a couple of times a month" (T 353). He enjoyed the scenery but was not a very good swimmer. There was no cross-examination of this witness. The defendant rested and the trial was concluded at that point.

General Obligations Law § 9-103 (1) (a) and (b) provide as follows:

1. Except as provided in subdivision two,

a. an owner, lessee or occupant of premises, whether or not posted as provided in section 11-2111 of the environmental conservation law, owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning as defined in section seventy-one-y of the agriculture and markets law, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes;

b. an owner, lessee or occupant of premises who gives permission to another to pursue any such activities upon such premises does not thereby (1) extend any assurance that the premises are safe for such purpose, or (2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or (3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.

"General Obligations Law § 9-103 extends broad immunity from liability to private as well as governmental landowners against claims for ordinary negligence brought by members of the public who come on their property to engage in certain enumerated activities where the land is suitable for those activities" (Perrott v City of Troy, 261 AD2d 29, 30-31; Sega v State of New York, 60 NY2d 183; Clark v State of New York, 178 AD2d 908). The statute's purpose is to encourage landowners to open their land to public use by persons engaged in covered activities (Sena v Town of Greenfield, 91 NY2d 611; Ferres v City of New Rochelle, 68 NY2d 446). Its protections do not affect the liability of a "government landowner who negligently operates or maintains a supervised recreational facility since such landowner needs no incentive to open such land to the public use" (Keppler v Town of Schroon, 267 AD2d 745, 746). Nor does immunity apply in instances where those participating in an enumerated activity on public lands have been charged a fee for the privilege (General Obligations Law § 9-103 [2] [b]; Wilkins v State of New York, 165 [*18]AD2d 514). In cases involving governmental landowners the determination whether the immunizing effect of the statute applies is centered on "the role of the landowner in relation to the public's use of the property" (Blair v Newstead Snowseekers, 2 AD3d 1286, 1288, citing Stento v State of New York, 245 AD2d 771). Where General Obligations Law § 9-103 applies a claimant may recover only where it is shown that the defendants' actions constituted "willful or malicious" conduct (General Obligations Law § 9-103 [2] [a]). "To qualify as willful or malicious, the proponent must show 'an intentional act of unreasonable character performed in disregard of a known or obvious risk so great as to make it highly probably that harm would result' " (Reid v Kawasaki Motors Corp., U.S.A., 189 AD2d 954, 956, quoting Gardner v Owasco Riv. Ry., 142 AD2d 61).

In the instant matter, it is clear that the decedent was not charged a fee to use the bike path at Lock 8 and that the path or trail was both conducive and suitable for use by the public for hiking, snowshoeing and cross-country skiing. Since the Court determines that the area of Lock 8 where this accident occurred was not "supervised" and that claimant was engaged in "hiking" on or near the trail at the time he slipped and slid down the slope and into the water the claimant was required to establish willful or malicious conduct on the part of the defendant. As claimant has failed to sustain the "high-threshold demonstration" (Farnham v Kittinger, 83 NY2d 520, 529) required to prove such conduct the claim must be dismissed.

The proof established that the defendant permitted the construction of a bike trail on its land and made several picnic tables available for the public. Maintenance responsibilities with regard to the bike trail were specifically conferred on the County of Schenectady and the State employees at Lock 8 testified that they had no responsibilities relative to maintaining the trail and only limited responsibility with regard to the picnic area, primarily mowing grass and picking up litter. In no way can it be said that "the State was the owner and operator of a regularly supervised public recreational facility" (see Wilkins v State of New York, 165 AD2d 514, 517) at Lock 8 under the facts of this case. The Canal Corporation employees at Lock 8 were responsible for the operation of the lock during the navigation season and maintenance and repair of the lock machinery and equipment at other times of the year. Mr. Wiss and Mr. Bottisti did not oversee or supervise in any respect persons upon the property for the purpose of picnicking or using the bike trail.

In his first statement to police Joseph Mangano related that he and the decedent "came to Lock 8 to walk the bike trail." Mr. Mangano further testified that both men were walking on or near the bike trail immediately prior to the decedent's accident. In Cometti v Hunter Mtn. Festivals (241 AD2d 896, 897) the Appellate Division, Third Department held that an individual injured while walking down a ski trail in order to secure a place to watch a mountain bike race was "hiking" for purposes of General Obligations Law § 9-103. The Court stated: "[a]lthough not specifically defined under [General Obligations Law § 9-103] 'hiking' is defined in the Department of Environmental Conservation rules and regulations as traversing land 'by foot or snowshoe for the purpose of pleasure or exercise' (6 NYCRR 197.2 [a]). We find such definition to be instructive and in accord with the Court of Appeals' assertion that uses enumerated under the statute are 'self-explanatory' (Farnham v Kittinger, 83 NY2d 520, 526). . . . We further note that an individual engaged in any of the enumerated activities under the statute, with one exception not relevant here (see, Farnham v Kittinger, supra), is presumed to be doing so for recreational purposes and his or her subjective purpose is irrelevant (see, Bragg v Genesee County Agric. Socy., 84 NY2d 544, 552, n 3)." [*19]

Relative to the instant matter, the Court finds that the decedent was "hiking" for purposes of General Obligations Law § 9-103 at the time of his accident. According to Mr. Mangano he and the decedent went to Lock 8 to walk on the bike trail and were actually engaged in walking on the trail at the time of the decedent's slip and subsequent slide into the river. Similar to the conclusion reached by the Third Department in Cometti, the Court here finds that "[t]hese facts and circumstances support no other conclusion but that [claimant] was traversing defendants' premises for pleasure and exercise such that [decedent's] activity falls squarely within the enumerated activity of hiking under General Obligations Law § 9-103 (1) (a)"[FN4]. Even though the decedent may have gone to Lock 8 that afternoon for a reason other than hiking, it is clear that he was hiking or engaged in a sufficiently related activity when injured (see Sega v State of New York, supra at 193; Cometti v Hunter Mnt. Festivals, supra; see also Reid v Kawasaki Motors Corp., U.S.A., 189 AD2d 954, supra, at 955).

Since at the time of his accident the decedent was engaged in a specifically enumerated activity on land which was conductive and appropriate for such activity and since the activity was not supervised and no consideration was charged the defendants are immune from liability (see McCarthy v New York State Canal Corp., 244 AD2d 57, 60; Myers v State of New York, 11 AD3d 1020). As Justice Carpinello noted in Cometti at 898 "[a] contrary conclusion would plainly defeat the statutory purpose of encouraging owners to make their lands available for recreational activities (see, e.g., Bragg v Genesee County Agric. Socy., supra, at 548-550; Farnham v Kittinger, supra, at 525 - 526)." Similarly Justice Spain in Perrott v City of Troy, 261 AD2d 29, supra, at 33, said: "Failing to confer immunity here might well induce defendant and other municipalities to actively discourage or prohibit the general public from engaging in unsupervised, statutorily enumerated recreational activities . . . in direct contravention of the legislative purpose underlying General Obligations Law § 9-103 (see, Ferres v City of New Rochelle, 68 NY2d 446, supra; see also Sena v Town of Greenfield, 91 NY2d 611, 615, supra)." The Appellate Division, Third Department reached similar holdings regarding cross-country skiing in Stento v State of New York (245 AD2d 771), and fishing on Canal Corporation property in McCarthy v New York State Canal Corp., supra.

While unnecessary to the disposition of this claim the Court notes that in Cometti, supra at 898, the Appellate Division, Third Department recognized that notwithstanding the applicability of General Obligations Law § 9-103 (1) (a) "[t]he mountain trail on which plaintiff voluntarily traversed 'is a natural geographical phenomenon, the danger of which is open and obvious rather than latent' (Coote v Niagara Mohawk Power Corp., 234 AD2d 907, 909)." The Court further observed that plaintiff elected in that case to traverse a trail which she knew to be steep and concluded that "[b]ecause the condition that caused her injuries was neither latent nor concealed, plaintiff's injuries cannot be said to have resulted from any breach of duty by defendant (see, Hofflich v Mendell, 235 AD2d 784; Coote v Niagara Mohawk Power Corp., supra; Walter v State of New York, 185 AD2d 536; Tarricone v State of New York, 175 AD2d 308, lv denied 78 NY2d 862)".

The same may be said of decedent's election on a February afternoon to visit Lock 8 and once there to walk on and repeatedly slide back and forth alongside the ice-covered bike path near the [*20]adjacent slope which descends steeply to an unfenced approach wall and swiftly flowing river. The danger posed by the river and the icy surface of the slope, which were sufficiently apparent that it attracted Mr. Mangano's attention and prompted him to foolishly slide down the hill, were both obvious to the adult decedent. Even if the icy covering of the slope was not obvious, a conclusion belied by Mr. Mangano's testimony and the photographic evidence received at trial, it became open and obvious (a) when the decedent watched Mangano slide down the hill and climb back up with difficulty and (b) when Mangano informed decedent after returning to the bike path that the slope was "very slippery". Since these conditions were neither latent nor concealed defendants owed no duty to warn of the danger. Decedent's conscious and fool-hearty actions were clearly the sole proximate cause of the accident and accordingly no liability attaches to the defendants (see Salas v Town of Lake Luzerne, 296 AD2d 643, 646, lv denied 99 NY2d 502).

Claimant's attempt to predicate liability upon the absence of fencing or barricades at the approach wall, the absence of ladders or other means of egress from the river and the absence of lifelines or life rings at the site is unavailing. With regard to fencing or barricades, it is well settled that "[p]roperty owners need not enclose natural geographical phenomena which present open and obvious, in contrast to latent, dangers (see, Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539; Olsen v State of New York, 30 AD2d 759, affd 25 NY2d 665)" (Casela v City of Troy, 161 AD2d 991). The Court in Casela specifically held at 991 that "riparian landowners who fail to erect fences are not thereby chargeable with creating a dangerous condition (see, Barnaby v Rice, 75 AD2d 179, 182, affd on opn below 53 NY2d 720; Smyke v State of New York, 282 App Div 914, affd 307 NY 737; see also, Lipscomb v City of Ithaca, 115 AD2d 824, 825)".

The State cannot, therefore, be held liable for failing to erect a fence, railing or barricade at the river's edge.

Similarly, there is nothing in this record to suggest that the presence of ladders or other means of egress from the river or the presence of lifelines or life rings would have prevented this tragic death. Joseph Mangano's eyewitness testimony established that the decedent entered the river in the vicinity of the eastern approach wall and reemerged from the water 20-25 feet from shore moving eastward with the current. After a very brief conversation between the two men the decedent went underwater and was not seen alive thereafter. The claimant herself testified that the decedent was not a very good swimmer and the record is devoid of any evidence suggesting that decedent was capable of making the arduous swim to shore through obviously frigid waters to access a ladder or other means of egress. The absence of such a device was of little consequence in this case.

Moreover, Joseph Mangano testified that upon the decedent's entry into the river he waited until the decedent emerged and then proceeded east on the bike trail to the wooded area that bordered the shoreline. Even if lifelines or life rings had been placed in the area near the picnic tables they would have been of no use since the only person capable of using the devices never entered that area opting instead for a safer approach through the woods. Mr. Mangano testified that after the decedent went underwater for the second time and thereafter failed to reappear he went directly to the parking area and then drove to the Rotterdam Police Station. He did not testify that he searched the area for a flotation device or rope and the brief reappearance of the decedent afforded him little if any opportunity to engage in lifesaving activity. Under these circumstances it cannot be said that the failure to maintain lifesaving equipment in the area of the eastern approach wall at Lock 8 contributed in any way to the decedent's tragic and untimely demise. [*21]

The instant claim is dismissed. The Clerk shall enter judgment in accord with this decision. Footnotes

Footnote 1:Hereinafter referred to as the decedent.

Footnote 2:References to T followed by a number refer to pages of the two-volume trial transcript whose pages are consecutively numbered.

Footnote 3:Mr. Andrews was not called to testify at the trial but it appears from his written statement that he discovered the decedent's body in the Mohawk River on March 25, 2002.

Footnote 4:As argued by defense counsel actual ownership of the area of claimant's decedent's fall is at best questionable. This, however, is not critical since the provisions of General Obligation Law § 9-103 apply to private and public landowners alike (see Sega v State of New York, supra).