Sonnenberg v State of New York

[*1] Sonnenberg v State of New York 2012 NY Slip Op 52307(U) Decided on November 2, 2012 Ct Of Cl Ruderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2012
Ct of Cl

Susan E. Sonnenberg Claimant(s)

against

The State of New York, Defendant(s)



115159



Claimant's attorney:VASTI & VASTI, P.C.

By: Thomas F. Vasti, III, Esq.

Defendant's attorney:HON. ERIC T. SCHNEIDERMAN

Attorney General for the State of New York

By: J. Gardner Ryan, Assistant Attorney General

Terry J. Ruderman, J.

Claimant seeks damages for injuries she sustained on Sunday, March 18, 2007 while descending a snow-covered hill in an inflatable tube at Mills-Norrie State Park in Dutchess County. The facts of the accident and the condition of the snow are not in dispute. Claimant was injured when her tube hit a mound of snow; she was ejected and landed on her back and neck. Claimant contends that the State, as owner and operator of the park, was on notice that the mounds of snow on the hill were hazardous and that defendant had breached its duty to clear these hazards. Defendant maintains that the condition of the snow-covered hill was open and obvious and that the mounds of snow were an inherent danger in the activity pursued by claimant. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant testified that on Sunday, March 18, 2007 at approximately 3:40 p.m., she and her children, 13-year-old Franki and 8-year-old Jeffrey, met claimant's 40-year-old brother Paul and his 5-year-old son Tyler at the park. Claimant was 44 years old. A sign at the top of the hill behind Mills Mansion indicated that sledding on inflatable tubes and plastic sleds was permitted until 4:00 p.m. (Ex. 16). Claimant's group had one round inflatable tube to share. The tube was three feet wide with handles on each side. Entry to the park and parking were free. Access to the park was open and unsupervised.

Claimant observed 50 to 60 people sledding, some of whom were "flying" over various jumps created by mounds of snow.[FN1] Jeffrey and Tyler sat together in the tube as claimant watched them go over a jump and fly five to six feet in the air before landing. Claimant did not warn her son to avoid the jump and viewed the jumps as part of their activity. The youngsters encouraged claimant to go over the jump. Claimant, who described herself as not adventurous, chose a path with the intention of avoiding the jump. She knew that there was no ability to steer the tube and that there were various jumps on the hill. She acknowledged that she had exercised her judgment in determining where to sled knowing that there was a risk that she might not stay on her intended course and encounter a snow jump. While she tried to avoid the jump, the tube nonetheless veered to the right and into the path of the jump. Picking up speed, claimant panicked and held tightly onto the handles. She went up [*2]in the air and the tube slid out from underneath her. She landed on her back and neck in the snow, unable to move.

Claimant described the jump as three to four feet wide, one and one-half-feet high and composed of hard packed, firm snow, almost the consistency of ice. Other jumps on the hill appeared similar, though of different heights. Claimant did not see anyone building jumps and had no knowledge when they had been formed.

After claimant's brother called 911, emergency medical personnel responded to the scene. Claimant was transported to Vassar Brothers Medical Center. She was in pain and on medication to alleviate her symptoms during her stay at the hospital. Claimant has no recollection of speaking to any New York State official at the hospital; however uniformed Park Police Officer Peter Varelas interviewed claimant at the hospital and prepared an accident report (Ex. 19). Varelas' report was received into evidence without objection. The report stated that Varelas observed the area of claimant's fall later that day and

"NOTICED LARGE SNOW JUMPS WHICH WERE BUILT ON THE HILL IN THE TRAILS WHERE NUMEROUS PEOPLE OF ALL AGES WERE SLEDDING. THESE JUMPS WERE BUILT OUT OF SNOW AND WERE DEFINITELY NOTICEABLE FROM THE TOP OF THE HILL. AT THE TIME OF THE ACCIDENT THE SNOW APPEARED TO BE VERY PACKED AND HARD DUE TO ALL THE PATRONS SLEDDING ON THE HILL. [VARELAS] NEXT CONTACTED JOHN FEENEY (PARK MANAGER) TO ADVISE HIM OF THIS AND MAKE SURE HIS STAFF COULD REMOVE ALL THE SNOW JUMPS ON HILL AND HE ADVISED ME THEY DO EVERY DAY BUT THE SLEDDERS KEEP REBUILDING THEM."

(id.).

Claimant's son Jeffrey testified that he and his cousin went flying over the jump of hard packed, solid, icy snow. Jeffrey did not see anyone building the snow jumps and did not know how long they had been present.

Claimant's daughter Franki testified that Jeffrey and Tyler were excited after going over the jump and they encouraged claimant to try it. Franki observed a number of jumps on the hill but she did not see anyone making them. Franki conceded that you would expect to encounter jumps on the hill.

Jason Whitaker, the paramedic who arrived at the scene, had no independent recollection of claimant's accident, but he refreshed his recollection with his report (Ex. 18). He observed that the jump where claimant had fallen was one to two feet high of packed snow. Whitaker could not determine how long that jump had been [*3]present.

Catherine Schaller was subpoenaed by claimant to testify as a disinterested witness. Schaller did not know claimant; however they had a mutual friend. Schaller arrived at the park between 1:30 p.m. to 2:30 p.m. on March 18, 2007 with her 15-year-old daughter and her friends. Schaller knew the park was a popular sledding locale with snow jumps as a feature of the hill.

Schaller frequently took pictures of school sports and accompanied her group to take photographs. She observed more than 100 people, a lot of trampled snow, ramps and several random pathways. She did not observe anyone making a snow jump. She took photographs of many children going over the snow jumps and flying in the air. In the prior ten years, Schaller had observed snow jumps on the hill and had never permitted her children to go over the jumps when they were younger. According to Schaller, if someone wanted to avoid a jump, they could move to the side or not go down the hill.

Analysis

General Obligations Law §9-103[1][a] provides that "an owner . . . of premises . . . owes no duty to keep the premises safe for entry or use by others for . . . sledding . . . , or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes." The statute further provides that such an owner "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" (GOL §9-103[1][b]). The statute's limitation of liability, however, is not absolute. An owner is not absolved of liability for a "willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity [emphasis added]" (GOL §9-103[2][a]) and the statute does not apply where permission to pursue the recreational activity was granted for consideration (GOL§9-103[2][b]). "Thus the Legislature, in drafting the statute, intended a quid pro quo, whereby property owners would be granted statutory immunity in return for permitting recreationists access to their undeveloped land" (Sena v Town of Greenfield, 91 NY2d 611, 615).

In cases involving recreational use of property owned by governmental entities, the determination of whether the statute's limitation of liability is applicable depends upon "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). The statute does not apply to a "supervised" public park or recreational [*4]facility because, in that case, the municipality would have already assumed a duty to act reasonably in maintaining the safety of its supervised park or facility and the statute's intended purpose of encouraging landowners to make their property available for public use would not be served (see Sena v Town of Greenfield, supra at 615-16; Ferres v City of New Rochelle, 68 NY2d 446).

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the State, as owner of the park, did not monitor, supervise or regulate sledding, which was permitted in the park without a fee, nor did the State inspect or maintain the area for sledding. Access to the park was free and a sign posted permitted sledding until 4:00 p.m. in plastic sleds or inflatable tubes. The evidence established that there were no park employees regulating the public's use of sledding equipment nor was the area cleared at 4:00 p.m..

Thus, the Court rejects claimant's argument that, by erecting a sign permitting sledding, defendant assumed a duty to regulate and monitor the activity and that defendant's failure to do so constituted willful and malicious conduct sufficient to remove the statutory immunity afforded to defendant. Rather, the Court finds that defendant is entitled to immunity from liability regarding claimant's sledding accident for ordinary negligence in permitting an enumerated recreational activity under General Obligations Law §9-103 and therefore is not liable for claimant's sledding accident (see Perrott v City of Troy, 261 AD2d 29, 32 ["[s]ignificantly, defendant did not perform special plowing or grading of the sledding area or provide monitors or employees assigned to supervise or regulate any sledding activities;" defendant was immune from liability under GOL §9-103]; cf. Sena v Town of Greenfield, supra at 616-17 [park was found to be "supervised" where town graded property to make it less steep and suitable for sledding and thereafter "routinely inspected" the hill for safety of activity]).

Moreover, the evidence established, by claimant's own testimony, that before she proceeded down the hill in a tube she was aware that she could not steer the tube and that there was a risk of encountering a snow jump. Claimant had indeed acknowledged the specific risk that she might encounter, the very snow jump she was encouraged to try by the youngsters (see Maddox v City of New York, 66 NY2d 270 [assumption of risk applies to any facet inherent in the sporting activity including where the activity is carried out and the exact manner of injury need not have been foreseen]). Claimant's purported attempts to avoid the jump were futile and she suffered injury as a result of proceeding over a jump which was open and obvious (see Coote v Niagara Mohawk Power Corp., 234 AD2d 907, 909 [(t)he dangerous [*5]condition which caused the injury was not latent or concealed]). Accordingly, this Court finds that, in addition to its finding that defendant is not liable pursuant to the immunity afforded under General Obligations Law §9-103, the credible evidence supports a finding that claimant assumed the risk of injury (see Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395; Toro v New York Racing Assn., Inc., 95 AD3d 999).

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 115159. Footnotes

Footnote 1:All quotations are to the trial notes or audio recording unless otherwise indicated.