Freeman v State of New York

[*1] Freeman v State of New York 2005 NY Slip Op 52334(U) [18 Misc 3d 1112(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 This opinion is uncorrected and will not be published in the printed Official Reports.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

Wendy L. Freeman, Individually and as Administratrix of the Estate of Samantha J. Freeman, Deceased, Claimant(s)

against

The State of New York, the New York State Thruway Authority and the New York State Canal Corporation, Defendant(s)



98967



Claimant's attorney: Mitchell, Goris, Stokes & Knych, LLC

BY: Matthew E. Whritenour, Esq.,

Of Counsel.

Defendant's attorney: Hon. Eliot Spitzer

Attorney General

BY: Edward F. McArdle, Esq.,

Assistant Attorney General

Of Counsel.

Nicholas V. Midey, J.

Wendy L. Freeman, the mother of Samantha J. Freeman, deceased, and the duly appointed administratrix of her estate, has commenced this action seeking damages for the wrongful death and conscious pain and suffering of her daughter [FN1], who tragically died on June 4, 1997 from a drowning incident in the Oswego Canal. Samantha fell into the canal while riding her bicycle during the early evening hours of June 3, 1997, and passed away the following day. Samantha, a developmentally challenged girl, was 12 years of age at the time of this unfortunate accident.

The accident which took Samantha's life occurred just south of Lock 1 in the Village of Phoenix, and was witnessed by three young girls, Nicole E. Lee, Marissa A. Lee, and Sarah J. Karkruff, all of whom testified at trial. At the time of the accident these three girls were sitting on an island in the canal, and happened to be facing the location where Samantha fell. Sarah Karkruff testified that she had observed Samantha earlier that evening, riding her bicycle in and out of a parking lot situated at the north end of Henley Park. Henley Park is a small municipal park owned [*2]and operated by the Village of Phoenix, on the east side of the Oswego Canal. All of the girls testified that they saw Samantha skid down a grassy slope towards the canal on her bicycle, with her feet planted on the ground as if she was attempting to bring the bicycle to a stop. Unfortunately, Samantha was unable to regain control of her bicycle, and she and the bicycle continued over the top of the canal wall into the canal. All of these witnesses testified that Samantha was apparently attempting to stop her bicycle, and that her hands were on the bicycle handles, with her feet on the ground. Nicole Lee then immediately ran for assistance, and emergency personnel arrived shortly thereafter and recovered Samantha from the canal. As mentioned above, however, Samantha died the following day from the injuries sustained in this fall.

Wendy Freeman, the claimant and Samantha's mother, testified that at the time of this accident, Samantha was riding her sister's 24-inch bicycle, which is equipped with hand brakes, and that Samantha had used this bicycle previously on numerous occasions. Samantha's own bicycle was a 26-inch bicycle, equipped with coaster brakes. On the evening in question, Mrs. Freeman had given Samantha permission to ride her bicycle. Typically, Samantha would ride up and down State Street, the street on which they resided, and would turn around in the parking area located on the north side of Henley Park.

Arthur Ellsworth testified that he and his mother owned this parking lot, which services a laundromat business also owned by Mr. Ellsworth and his mother. The parking lot is located immediately south of the laundromat. Mr. Ellsworth was unsure as to the exact western boundary of his property, but he believed it to be the western edge of this paved parking lot. He testified that this lot was open to the public, and that he had observed Samantha riding her bicycle on numerous prior occasions in this area.

Between the westerly edge of the parking lot and the east edge of the canal existed a grassy area which sloped down to the canal from the lot.

Scott Whittaker, a licensed land surveyor, took measurements of this grassy area, and testified that this area measured 15.98 feet from the western edge of the parking lot to the east edge of the canal wall. According to his measurements, 4.15 feet of this area, located immediately to the west of the parking lot, was privately owned, and the remainder (11.83 feet, or 11 feet 10 inches) was owned by the State. Additionally, the canal wall was three feet in width.

Heather Gray-Garrison, formerly known as Heather Gray, testified that on June 4, 1997, shortly after Samantha's drowning, she and Donald Brooks, an investigator with the Authority, conducted measurements of the area. Based on their measurements, they recorded a 23% slope for the grassy area, from the parking lot to the edge of the canal (see Exhibit 6). According to testimony from Eugene Camerota, defendant's expert, this 23% slope equated to a 13 degree slope.

Mr. Ellsworth testified that this area was maintained by the State, and the grassy area was mowed by State employees using riding lawnmowers. He also testified that on occasion, he had mowed the area himself, also using a riding lawnmower.

Testimony established that the canal, including the surrounding area, had been refurbished in the mid-1980's. The canal was dredged, and concrete walls were built along the side of the canal to allow boats to be tied to them. After rebuilding the canal walls in this area, the area was graded by the State, leaving the grass-covered slope heading down to the canal.

Based on the eyewitness testimony presented at trial, the Court concludes that Samantha lost control of her bicycle on or near the paved parking lot, and that she was then unable to stop or regain control of her bicycle as she slid down the grassy slope to the canal, and accidentally fell into the [*3]canal as a result.

At the outset, the Court must first address the State's assertion that it is immune from liability in this claim pursuant to General Obligations Law § 9-103. Section 9-103 extends broad immunity from liability to landowners against claims for negligence brought by individuals who have entered their property to engage in certain activities (enumerated in § 9-103), where the land is suitable for such activities. Its purpose is to encourage owners to open their land to public use by persons engaged in the covered activities (Sena v Town of Greenfield, 91 NY2d 611; Ferres v City of New Rochelle, 68 NY2d 446). Bicycling is one of the enumerated activities specified in § 9-103.

In this claim, however, there was no testimony to even remotely suggest that the grassy area adjacent to the canal was either maintained or intended for use as a bicycle path. Furthermore, there was no testimony that Samantha had entered onto the State property with the intention to ride her bicycle. To the contrary, Samantha was not utilizing this area for the recreational purpose of bicycling, but had only entered onto State property when she lost control of her bicycle and as she attempted to regain control. Accordingly, the Court concludes that any State reliance upon General Obligations Law § 9-103 in this particular situation is misplaced (cf. Briggs v State of New York, Ct Cl, July 15, 2005, Collins, J., Claim No. 107694, [UID #2005-015-517])[FN2].

It is well settled that the State, as a landowner, has a duty to maintain its property in a reasonably safe condition (see Basso v Miller, 40 NY2d 233; Preston v State of New York, 59 NY2d 997). This duty includes the duty to remedy hazards which were created by the State on State-owned property (Preston v State of New York, supra). However, it is equally well settled that riparian landowners have no duty to erect fences or barriers to prevent access to a waterway (Casela v City of Troy, 161 AD2d 991; Barnaby v Rice, 75 AD2d 179, affd on opn below 53 NY2d 720; Smyke v State of New York, 282 App Div 914, affd 307 NY 737).

Therefore, in order to find State liability, claimant must establish that the grassy slope on which Samantha slid down into the canal constituted a hazardous condition, that the State had notice of this condition, and that it failed to take appropriate corrective measures to ameliorate the condition.

Documentary evidence was received into evidence regarding a prior drowning incident in the canal (see Exhibit 45), which occurred in 1986. Claimant contends that this prior incident not only reinforces her argument that a hazardous condition existed, but also provided the State with prior notice that children on bicycles often played in the area.

A review of the particulars surrounding this prior drowning incident, however, reveal several important distinguishing facts from Samantha's accident. The earlier drowning accident occurred in July, 1986, when a fourteen-year-old child by the name of James Dixon went into the canal, on his bicycle, in an area at the south end of Henley Park. Furthermore, it was determined at that time that Mr. Dixon intentionally rode his bicycle into the canal.

Based on the foregoing, the Court finds that this incident was so remote in time (11 years prior to Samantha's drowning) and location (the Dixon drowning occurred south of Henley Park, while Samantha's accident occurred in a location just north of Henley Park) that it was insufficient to place the State on notice of a hazardous condition in the area where Samantha fell into the canal. [*4]Most significantly, the evidence that Mr. Dixon intentionally rode his bicycle into the canal is so dissimilar to the circumstances of the instant claim that it constitutes no evidence whatsoever of a hazardous condition, since the degree of slope is simply not relevant in such an act.

At trial, claimant elicited testimony from her expert, James Napoleon, a professional engineer, to support her argument that the grade of the slope was excessive, and as such constituted a hazardous condition. Mr. Napoleon testified that the area in question, since it was adjacent to Henley Park, should have been maintained in a reasonably safe condition for the intended use of a park area. He testified that the slope of this area exceeded the maximum recommended slope for pedestrian walkways, and that the slope was too steep for bicycle travel. He concluded that the grassy slope where Samantha entered the canal was excessively steep, and that the degree of slope constituted a hazardous condition.

Although Mr. Napoleon testified that the location of Samantha's accident was an area which was frequented by children and should be considered a park area, the credible evidence presented at trial established that this area was not part of Henley Park, and it was not maintained by the State, or intended for use, either as a bicycle path, walkway, or park. Mr. Napoleon was unable to refer to any existing standards, specific to the area in question, that were violated by the State in maintaining this area. Significantly, in arriving at his conclusion that the grassy slope was excessively steep, Mr. Napoleon did not rely on any actual measurements that he had personally taken of the area.

Based on the foregoing, the Court concludes that Mr. Napoleon's testimony had little probative value, and his conclusions and opinions have been afforded little weight in this Court's decision.

On the other hand, the Court has also found that the testimony provided by the State's expert, Eugene R. Camerota, a mechanical engineer, has no probative value. In reaching his conclusion that no hazardous condition existed at the point where Samantha fell into the canal, Mr. Camerota relied upon measurements and calculations that he had taken of the area in question. However, these measurements were made by Mr. Camerota after substantial improvements had been made to the location, rendering any conclusions made by Mr. Camerota, in reliance on these measurements, irrelevant.

Without credible expert testimony from either side, the Court has therefore relied upon the lay testimony of those witnesses familiar with the terrain, as well as photographs of the area which were admitted into evidence. After careful consideration of this testimony and evidence, the Court finds insufficient evidence to conclude that a hazardous condition existed in the area where Samantha fell into the canal. Although evidence certainly established that the embankment sloped to the canal, there was no credible testimony that the degree of slope violated any pertinent engineering standards. Since there is no absolute duty thrust upon the State to construct a fence or other barrier along the canal, there was no credible evidence introduced at trial that would have placed the State on notice that such a fence or barrier should have been erected in this instance prior to Samantha's accident.

Therefore, while the Court is deeply sympathetic to the tragic loss suffered by claimant and her family through the accident which took Samantha's life, there is no basis on which to hold the State liable for this accident. As a result, this claim must be dismissed.

Let Judgment Be Entered Accordingly. Footnotes

Footnote 1: Hereinafter referred to as Samantha.

Footnote 2: Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.