Ginyard v State of New York

[*1] Ginyard v State of New York 2012 NY Slip Op 50816(U) Decided on March 28, 2012 Ct Cl Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 28, 2012
Ct Cl

Mary Ginyard, Claimant,

against

The State of New York, Defendant.



115062



APPEARANCES:

For Claimant:

Raskin & Kremins L.L.P.

By: David Hoffman, Esq.

For Defendant:

Eric T. Schneiderman, Attorney General

By: Suzette C. Rivera, AAG

Alan C. Marin, J.

This is the decision following the liability trial of the claim of Mary Ginyard, which arises from her fall from a bicycle at Roberto Clemente State Park in Bronx County on May 28, 2007. Ms. Ginyard testified on her own behalf and also called: Kelvin Slaton, who by the time of trial had become her husband; David Lucas, the park's maintenance supervisor; Gary Barreira, a State police officer who responded to the incident and Patrick Robinson, a State park ranger who prepared a Patron Accident Report.

That May 28, Memorial Day, was hot, sunny and the ground was dry. In the morning, claimant and Mr. Slaton, who lived across the street from Roberto Clemente, went over to the park with their bicycles. Both Ginyard and Slaton testified that they were regular bicycle riders in the park, going there three or four times a week, weather permitting; claimant had been doing so for about ten years, and Slaton for more than twenty years.

After having ridden around for a while, claimant and Slaton took a brick path in the southern portion of the park which runs perpendicularly into a roadway, but does not cross it. Ginyard and Slaton turned right onto an asphalt road, passing some dumpsters, and then continued into a City of New York park known as Bridge Park, which according to Slaton, had just opened earlier that year. Roberto Clemente State Park is contiguous to Bridge Park, and there was no prohibition on using the roadway in question to enter Bridge Park; Mr. Lucas, the [*2]maintenance supervisor, testified that the area in question is open to the public.

After the two took a break in Bridge Park, Slaton remained standing by the water, but Ginyard decided to ride some more. Claimant continued back on the road, intending to make a left turn onto the brick pathway to continue into Roberto Clemente State Park. She described what happened next as: "While I was making the left turn, my front wheel hit the pothole and the next thing I was down on my back." Ginyard testified that she saw the pothole, which is at the intersection of the brick path and the road, for the first time when she was on the ground; she had been looking straight ahead and did not see it prior to the incident.

In the area where claimant fell, according to the testimony and photographs in evidence (claimant's exhibits 2 through 4), the asphalt roadway was missing blacktop, and there was exposed dirt, sand and gravel. At that spot, it was difficult to tell where the brick and asphalt met (without looking across the full width of the road and brick path); the photograph that is claimant's exhibit 4 shows fragmented and loose brick pavers. Claimant neither offered, nor elicited testimony on the dimensions of this overall condition. From the photographs, the overall condition looks to be at least several feet on a side (if such term can be used for this irregular shape). Lucas said that the pothole that claimant referenced was between one-and-a-half to two inches deep.[FN1]

Asked what had caused the condition, Lucas said that he did not know, but that trucks driven by park workers traverse the area on a daily basis to get to the dumpsters; sanitation trucks also drive through the area regularly. Officer Barreira testified that to the best of his knowledge, the condition had existed for about four to five years prior to Ms. Ginyard's accident.

***

In this era of comparative negligence, the doctrine of assumption of risk as an absolute defense with no liability attaching to defendant has survived in the realm of sporting or recreational activities - - what has been termed the "primary assumption of risk." In deciding four actions involving bobsledding, tennis, karate and martial arts, the Court of Appeals in Morgan v State of New York, 90 NY2d 471, 484-85 (1997) stated: [B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation [and] a premises owner continues to owe a "duty to exercise care to make the conditions as safe as they appear to be." If the risks of the [*3]activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.Therefore, in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are "unique and created a dangerous condition over and above the usual dangers that are inherent in the sport" [and] for purposes of determining the extent of the threshold duty of care, knowledge plays a role but inherency is the sine qua non . . . (citations omitted).

Bicycling is an activity in which primary assumption of risk may come into play.

Furgang v Club Med, Inc., 299 AD2d 162 (1st Dept 2002), lv denied 99 NY2d 504 (2003). There are some solid examples of a dangerous condition beyond that inherent in bicycling: a concealed gap between a flat surface and an adjacent ramp (Torres v City of New York, 271 AD2d 306 (1st Dept 2000)); a chain across a partially paved trail (Sauray v City of New York, 261 AD2d 601 (2d Dept 1999)); and a garden hose strewn across a paved bicycle path (Eagle v Chelsea Piers, L.P., 46 AD3d 367 (1st Dept 2007)).

Our analysis here is, of course, considerably fact-dependent. The Second Department in Cotty v Town of Southampton, 64 AD3d 251(2d Dept 2009), upheld the denial of summary judgment to the Town of Southampton, which had been sued by a bicyclist who could not negotiate an elevated asphalt lip that was part of unfinished work for a water main conduit. The Court noted that the primary assumption of risk doctrine had been extended to the playing surface condition so that if an "athlete is injured as a result of a defect in, or feature of, the field, court, track or course upon which the sport is being played," there will be primary assumption of risk if such was inherent to the sport. 64 AD3d at 254. The language "field, court, track or course" would not, by its terms, generally refer to a roadway: In sum, it cannot be said, as a matter of law, that merely by choosing to operate a bicycle on a paved public roadway, or by engaging in some other form of leisure activity or exercise such as walking, jogging, or roller skating on a paved public roadway, a plaintiff consents to the negligent maintenance of such roadways by a municipality or contractor

. . . We decline to construe the doctrine of primary assumption of risk so expansively.

64 AD3d at 257.

Ginyard's above-cited testimony about the frequency of her bicycling in Clemente Park suggests that she had done so at least one hundred times a year. The subject condition where the asphalt met the brick walk had been there for over four years. The park is only 27 acres.[FN2] Her testimony that she had never been back in this area prior to May 28, 2007 is not credible. Further, the Court does not find sufficiently credible Ms. Ginyard's testimony that the first time she passed the area on the way to Bridge Park that Memorial Day, she did not notice the condition of the road (and path) because she was riding to the left of it. Among other things, toward the left down the asphalt road was a large railroad car-like container, which claimant [*4]maintains was not there on May 28, even though it appears in the photographs in evidence, which claimant testified were taken a week later (claimant's exhibits 2 and 3).

While this area was part of the park and open to the public, it was an out-of-the way area used by park vehicles and sanitation trucks. In the vicinity were dumpsters and according to photographs offered by claimant, a pile of rubble and the aforementioned container, which the photograph that is claimant's exhibit 3 shows as much larger than any of the dumpsters. Officer Barreira described this part of Clemente Park as a "fairly deserted area"; Supervisor Lucas as an "abandoned area;" and Robinson, the park ranger, stated that, "[w]e don't really go back there." Neither Lucas nor Robinson had ever seen anyone riding their bikes in the area. When asked if he had ever seen anyone riding their bikes there, Barreira answered, "No. Over the years possibly one or two."

Even accepting claimant's testimony that her bike went down when it hit the pothole and not when she came onto the brick path (the path is more easily categorized as something other than pavement) - - the deteriorating asphalt in this fairly remote area of the park is more akin to the visible depression on a "rough macadam roadway" in a public campground (Dobert v State of New York, 8 AD3d 873 (3d Dept 2004)) than to the "paved public roadway," with respect to which the Cotty Court was troubled as to the application of primary assumption of risk. Like the bicyclist in Dobert, claimant "had no reason to expect a perfectly smooth roadway . . ." 8 AD3d at 874.

In view of the foregoing, I find that claimant Mary Ginyard was subject to the primary assumption of risk doctrine in Roberto Clemente State Park on May 28, 2007, and accordingly, claim no. 115062 is dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

New York, New York

March 28, 2012

ALAN C. MARIN

Judge of the Court of Claims

Footnotes

Footnote 1:Defendant essentially attempted to demonstrate that claimant had not actually fallen where she said she had, because neither Park Ranger Robinson's accident report (claimant's exhibit 6) nor Officer Barreira's incident report (claimant's exhibit 1) referred to any kind of hole. Robinson did not recall where he had obtained the information in the accident report he prepared or whether he had spoken to anyone at the scene. In any event, the statement that claimant "lost control of the bike and fell" is not inconsistent with her testimony on how she fell. Similarly, Barreira did not ask claimant about the incident, nor did she provide information, and the statement in the incident report prepared by Barreira that she "lost her balance," is similarly not inconsistent with Ginyard's version of the facts. Officer Barreira testified that a 12- or 13-year old girl who was on the scene when he arrived told him that Ginyard had lost her balance, but the officer did not know if the individual had witnessed the accident.

Footnote 2:See Lucas' §50-h hearing (claimant's exhibit 10, p. 18).