Powley v State of New York

[*1] Powley v State of New York 2005 NY Slip Op 52057(U) [10 Misc 3d 1060(A)] Decided on September 27, 2005 Ct Cl Midey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2005
Ct Cl

JACQUELINE RAE POWLEY, Claimant(s)

against

THE STATE OF NEW YORK, Defendant(s)



105152



Claimant's attorney: PHILLIPS LYTLE, LLP

BY: Michael R. Law, Esq.,

Of Counsel.

Defendant's attorney: HON. ELIOT SPITZER

Attorney General

BY: Patricia M. Bordonaro, Esq.,

Assistant Attorney General

Of Counsel.

Nicholas V. Midey, J.

Synopsis:

Claimant sought damages for personal injuries resulting from a fall from her bicycle, when she struck a depression in the pavement surrounding a drainage grate on a roadway at Sampson State Park. The Court found that the drainage grate, and the depression surrounding it, constituted a dangerous condition of which the State had actual notice. The Court further found that the doctrine of primary assumption of risk did not apply to relieve defendant of liability, but that claimant's comparative negligence was a significant factor in this accident. Liability was apportioned 70% to claimant and 30% to State. [*2]

Recitation:



Text of the decision:

Claimant seeks damages for personal injuries suffered by her when she fell from her bicycle at approximately 10:30 p.m. on September 3, 2000, at Sampson State Park in Romulus, New York. Claimant alleges that she was thrown from her bicycle when her bicycle tire struck the edge of a depression in pavement surrounding a drainage grate at the campsite. She contends that the State had actual notice of this condition, and failed to properly maintain it in a reasonably safe condition. The trial of this claim was bifurcated, and this decision deals solely with the issue of liability.

Testimony established that claimant and her husband, Scott Powley, arrived at Sampson State Park on Friday, September 1, 2000, for a weekend of camping. On Sunday evening, September 3, 2000, between 9:00 and 10:00 p.m., claimant took her bicycle and rode to a nearby comfort station at the park to use the facilities. Paved roadways existed throughout the park, and claimant rode her bicycle on the roadway both to and from the comfort station. On her return from the restroom to her campsite, claimant testified that her bicycle tire was "sucked into"[FN1] a depression in the pavement, causing her to be thrown from her bicycle. This depression surrounded a drainage grate, which was several inches below the paved roadway.

Scott Powley testified that he heard his wife calling him for assistance after she fell, and he went to her aid. He assisted his wife back to the campsite, where they remained for the rest of the night.

Neither claimant nor her husband reported the incident to park officials either that evening or the next morning prior to leaving the campsite. Claimant did not seek any medical assistance prior to leaving the park.

Both claimant and her husband testified that there were no lights along the roadway, and that the depression and grate were similar in color to the surrounding pavement, and were therefore not visible at nighttime. Mr. Powley also testified that the comfort station was well lit, and that it was approximately 400 yards away from their campsite. He testified that he could see the lights on the comfort station from his campsite.

Claimant did acknowledge that her bicycle was not equipped with a light, and that she did not have a flashlight or other illuminating device with her at the time of her fall. She was also not wearing a bicycle helmet at the time of this accident.

Claimant did testify that prior to this incident, she had observed the depression in the pavement during her stay at the park. In fact, claimant testified that on her trip to and from the comfort station, she was aware of the presence of the drainage grate and depression, and was consciously trying to avoid the area, but was unable to do so because of the total darkness.

Scott Powley testified that he returned to the site approximately one week later and took photographs of the depression and grate (see Exhibits 1 through 6). Based on his observations and [*3]measurements, he estimated that the depression was approximately six to seven inches in depth (from the top of the pavement to the drainage grate).

Barry A. Dean, Highway Superintendent for the Town of Webster, testified as claimant's expert. Mr. Dean has 34 years of service with the Town of Webster Highway Department, including 12 years as superintendent. Mr. Dean, however, did not have any prior work experience with either the State Highway Department or the State Parks Office. Mr. Dean testified that current highway standards required drainage grates to be flush with the surface of the pavement, and that this drainage inlet at the State park was considerably lower than the asphalt pavement. He admitted that the inlet was "open and obvious" during the daytime, but nevertheless concluded that the drop-off between the pavement and the drainage inlet created a "dangerous situation" which should have been repaired by the State.

The deposition testimony of Bruce Fullen, taken on June 24, 2003, was received into evidence at trial (Exhibit 9).[FN2] Mr. Fullen was the Park Manager at Sampson State Park at the time of the incident. In his testimony, Mr. Fullen stated that he was very familiar with the area where claimant fell from her bicycle, and that the condition of the drainage grate had been in existence from the time he started work at the park in 1996. He testified that the drainage grate was located in an area of the roadway which park patrons utilized for both pedestrian and bicycle traffic. He also indicated that the depression in the pavement was noticeable to him even as he drove his car through the park on various occasions, since it would cause his car to dip if he happened to strike it.

Kathie DeSarno, employed by the State Office of Parks, Recreation and Historic Preservation as a Supervisor of Park Operations, testified that she received claimant's telephone call when claimant ultimately reported her fall to the park office on September 14, 2000. Ms. DeSarno took a statement from claimant over the telephone, and typed her report as claimant related the details of the incident to her (see Exhibit B). A copy of this report was mailed to claimant for her signature, and was returned, with one addition having been made to the report (see Exhibit C).

Ms. DeSarno also testified that she reviewed accident reports for the area in question at Sampson State Park and found no record of any other accidents related to the drainage grate.

John C. Clancy, Regional Director of the Fingerlakes Region for the State Office of Parks, Recreation and Historic Preservation, also testified. Mr. Clancy testified that he was familiar with the history of Sampson State Park, and that all of the roadways and paved areas in the park existed prior to the State taking ownership of the property. Mr. Clancy also testified that he was unable to locate any records relating to any paving or repaving projects for the subject area. Mr. Clancy testified that any paving projects in this area had been performed by the federal government prior to the State assuming ownership of the property.

Jeffrey J. McDonald, who was employed by the State Office of Parks, Recreation and Historic Preservation, testified as the State's expert. Mr. McDonald is a licensed landscape architect, and is employed by the State as Regional Capital Facilities Manager for the Fingerlakes Region. Mr. McDonald had previously been employed with the State Department of Transportation as a landscape architect.

Mr. McDonald had taken a pavement sample from the area near where claimant had her accident, and based on his observations of the sample, he concluded that this was the original [*4]pavement, and that no work had been done to the roadway since the early 1940's.

Mr. McDonald also testified that although roads within the State parks are considered State roads for traffic regulation, Department of Transportation standards generally do not apply to these roadways, and the Parks Office is not required to implement standards and guidelines of the Department of Transportation.

Additionally, Mr. McDonald testified that in his professional opinion, the drainage grate was not a concealed condition, but rather was open and obvious, and that he did not consider this depression to be an "unusual hazard". He testified that although the depression in the roadway had existed for a number of years, in his opinion this area did not require maintenance or repair.

From the evidence presented, there is no question that the park roadway in the area where claimant fell from her bicycle was the original pavement, and that it had remained in the same state of condition for several decades. As a result, any testimony from claimant's expert that the State had an affirmative duty to reconstruct the drainage-grate area to comply with current safety design standards is irrelevant. The State is not obligated to undertake roadway reconstruction simply because safety design standards have changed subsequent to the original construction (Holscher v State of New York, 59 AD2d 224, affd 46 NY2d 792). Claimant's reliance upon subsequent design standards as establishing a duty upon the State to maintain the existing drainage grate is misplaced. In order to prevail in her claim, claimant must therefore establish the existence of a foreseeably dangerous condition, that the State had notice (either actual or constructive) of this condition, that the State failed to correct the condition within a reasonable time, and that the failure to correct the condition was a proximate cause of her accident.

It is well settled that the State, as a landowner, has a duty to use reasonable care in maintaining its land in a reasonably safe condition (see Basso v Miller, 40 NY2d 233; Preston v State of New York, 59 NY2d 997). The State, however, does not insure the safety of those who enter upon its lands, and the mere occurrence of an accident does not establish negligence (Mochen v State of New York, 57 AD2d 719).

In this case, testimony established that there was a significant depression in the paved surface leading to the drainage grate, which itself was located several inches below the paved surface of the roadway. According to the testimony of the park manager, the depression was significant enough to be noticed when driving over the area in a motor vehicle. The depression was also relatively large, since testimony established that the drainage grate was two feet wide and three feet in length (see Exhibits 1 through 6).

The State, however, contends that this condition was open and obvious, and even claimant and her husband both acknowledged that they had observed this condition in the roadway prior to her accident. The coloring of the grate and surrounding pavement area, however, was similar to the existing pavement in the roadway, and therefore even though this depression may have been apparent during daylight hours, it cannot be said that such condition was open and obvious at night. There was no artificial lighting in the immediate area, and there were no other markings or signage to adequately warn park patrons of the existence of this depression. Furthermore, park personnel must have been aware that patrons of the park utilized the paved roadway during nighttime hours, particularly for travel to and from the comfort station. There were no markings whatsoever to identify this depression.

As a result, the Court finds that this drainage grate, and the depression surrounding the grate, [*5]constituted a dangerous condition, of which the State had actual notice. Since the State's own witnesses testified that this condition had been in existence for several years, the Court finds that the State certainly had a sufficient opportunity to correct the condition, or at a minimum provide appropriate warning, and that the failure to correct the condition or provide adequate warning of this hazard was a proximate cause of claimant's accident.

The State, however, contends that the doctrine of primary assumption of risk bars any recovery from the claimant in this claim.

Pursuant to CPLR § 1411, the assumption of risk doctrine generally acts not as a bar to recovery by a claimant, but rather diminishes any recovery in proportion to a claimant's culpable conduct. Primary assumption of risk, however, does constitute a complete bar to recovery, since it measures the defendant's duty of care rather than a claimant's comparative fault (Turcotte v Fell, 68 NY2d 432).

Defendant's reliance upon this doctrine, however, is misplaced. The doctrine of primary assumption of risk is most often applied to injury claims arising from a claimant's voluntary participation in competitive athletic activity. By electing to participate in such activity, the claimant or plaintiff is deemed to have consented "to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation." (Turcotte v Fell, supra at 439). In this case, claimant was not voluntarily participating in any athletic contest (such as a bicycle road race) or even using her bike for recreational activity, but was merely riding her bike as a means of transportation to the comfort station in the park. While the decision to ride her bike at night without a lamp may have been misguided, it certainly is not the type of activity that invokes the primary assumption of risk doctrine to bar any recovery. Her decisions and actions therefore must be considered under the comparative fault provisions of CPLR § 1411.

Similarly, defendant's reliance upon Vehicle and Traffic Law § 1236(a) is also misplaced. Section 1236(a) requires that every bicycle used during the period from one-half hour after sunset to one-half hour before sunrise be equipped with a front lamp which emits a white light visible during these hours from a distance of 500 feet to the front. It is evident that the purpose of this section is to make a cyclist visible to others during nighttime, and claimant's failure to comply with this statute cannot act as a bar to any recovery by her in this action.

Accordingly, the Court finds that the drainage grate, and the depression in the pavement surrounding it, constituted a dangerous condition, for which the State had a duty to correct, or at least warn park patrons of its existence, since it was not visible during nighttime hours. Since this condition was a proximate cause of claimant's injuries, the State must respond in damages.

Having made this determination, however, and as indicated above, the comparative negligence of the claimant must also be considered. Although intending no disrespect to the claimant, the Court finds that it was irresponsible for her to ride her bicycle to the comfort station at night, over a darkened roadway, without a light of any kind to assist her. Claimant would have encountered much less risk had she walked to the station (which was approximately four hundred yards away) with a flashlight or lantern to illuminate her way. In particular, claimant admitted that she was aware of the depression and drainage grate in the roadway, since she had observed it during daylight hours. Evidence even established that she was trying to avoid the area of the depression on her return from the comfort station, but unfortunately fell into the depression since she was unable to locate the depression in the darkness. Claimant must therefore bear a significant share of the [*6]liability assessed in this matter.

Based upon the foregoing, therefore, the Court finds that claimant is 70 % responsible for the injuries suffered by her in this accident, and the defendant State of New York is 30 % responsible for the injuries suffered by claimant.

The Clerk of the Court is hereby 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.

Any motions not heretofore ruled upon are hereby denied.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY

Appendices: Footnotes

Footnote 1: Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.

Footnote 2: Mr. Fullen passed away prior to trial.