Panebianco v State of New York

[*1] Panebianco v State of New York 2012 NY Slip Op 52439(U) Decided on December 18, 2012 Ct Cl McCarthy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2012
Ct Cl

Nicole Panebianco, and JAMES PANEBIANCO, JR. and CATHERINE PANEBIANCO, Claimants,

against

The State of New York, Defendant.



114711



Claimant's attorney:FINKELSTEIN & PARTNERS, LLP

By: Victoria Lieb Lightcap, Esq.

Defendant's attorney:ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

By: Joel L. Marmelstein, Esq., AAG

Christopher J. McCarthy, J.

Claimant, Nicole Panebianco. failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries she sustained on June 20, 2007 in a slip and fall accident at Chittenango Falls State Park, located in Cazenovia, New York ("CFSP,"or the "Park"). A bifurcated trial, addressing liability issues only, was held on October 24-26, 2011 at the Court of Claims in Utica, New York. There were four witnesses: Claimant; James Panebianco, Claimant's father; Indiana J. Nash, one of Claimant's classmates and a witness to the accident; and Stephanie J. Chapin, who was supervisor of CFSP at the time of the accident. In addition, portions of deposition testimony was received from four witnesses: Claimant;[FN1] Catherine Panebianco, Claimant's mother;[FN2] New York State Park Police Officer ("NYSPPO") Robert Rensy;[FN3] and NYSPPO Jack F. Adams.[FN4] Claimant requested and was granted time to order a transcript, which was received by the Court on June 6, 2012. Thereafter, the parties requested and were granted additional time to submit post-trial memoranda.

FACTS

Ms. Panebianco was a 14-year-old student when she visited CFSP on June 20, 2007 as part of her middle school class field trip. The "main feature" of the 194-acre Park is a 167-foot waterfall that "cascades over a series of limestone terraces" as the Chittenango Creek descends through a narrow gorge on its way to Oneida Lake (Ex.1). The Park has five hiking trails (id.). Upon arrival, Claimant, Ms. Nash, and two other classmates went "exploring" in the park (Tr, pp. 324, 335). Claimant was wearing suede shoes with rubber soles (see Exs. V and W).

There is some confusion about the route the four classmates took on their walk. At a deposition conducted on November 18, 2008, when Claimant was asked to explain in detail the trails she traversed, she was not very definitive, saying "all I remember is it was near the playground, and it had wood chips on it" (Tr., p. 417; see Ex. JJ, p. 103). Ms. Nash's trial testimony also lacked any great specificity about the route they followed. Mr. Panebianco testified, however, that when Claimant returned to CFSP with her parents several weeks after the accident, they tried to retrace her progress by following the Park's "Charcoal Chips," or "C" trail (the "Trail") (id., pp. 38-39; see Exs.1 and 6). That is also the path the State employees took when they tried, without any knowledge [*2]of Claimant's actual route, to reconstruct the event later on the day of the accident (id., p. 191; Ex. 58, pp. 23, 44).

Be that as it may, Claimant testified at trial that her group commenced walking on the Trail at the place where a sign is located (Tr., pp. 382-383; see Ex. 6).[FN5] They followed the Trail to a point where it is crossed by the dry creek bed visible in the photograph that is Exhibit 8.[FN6] The group then crossed the dry creek bed and proceeded farther along the Trail (see Ex. 7). Ms. Chapin said that the continuation of the Trail is visible in the center of the photograph that is Exhibit 8 on the far side of the dry creek bed, and that Exhibit 7 also depicts the Trail beyond the dry creek bed.[FN7] After that, one comes to the place alongside the Trail depicted in the photograph that is Exhibit 9. Ms. Chapin estimated that the total distance from the Trail sign in Exhibit 6 to the area depicted in Exhibit 9 at 50-55 feet.[FN8]

Ms. Chapin explained that, with the exception of some rocks in and near the dry creek bed, throughout the area pertinent to this Claim the Trail is roughly four to five feet wide, flat, surfaced with loose, brown wood chips that had been spread on the Trail in late 2006, or spring 2007, with branches and other vegetation trimmed back to permit unobstructed walking (Tr., pp. 267-269, 271-272). The covering of wood chips extends for another 40 feet or so beyond the area shown in Exhibit 9 (id., p. 272).[FN9] As supervisor, Ms. Chapin performed site inspections of the trails several times each year, during which she walked the trails looking for downed limbs or trees that would prevent easy access to the trails. She and her staff aimed to keep the designated trails well-defined by trimming tree limbs and vegetation, mowing, and by maintaining the width of the trails. The trails were inspected and weeded weekly and her staff also was on the lookout for any tripping, slipping, or falling hazards (id., pp. 118-123, 232, 236, 252).

Nevertheless, Claimant perceived that the Trail splits at the place depicted in Exhibit 9 so that "the path from the creek bed continued going on forward," while her group elected to follow a path shown in the exhibit, which veered or forked to the right (Tr., p. 385). She described the [*3]ground on that path as "[w]orn down," "beaten down," "as if it had been walked on or traveled before" (id., pp. 385, 387).[FN10] Her father said his party also turned right when they visited CFSP to retrace with Claimant the route she took, and walked towards the orange sign that is visible in Exhibit 9 which, Mr. Panebianco reckoned, was posted at least 15 feet up on the tree trunk. By contrast, Ms. Chapin said that the sign was 10-12 feet off the ground. Whatever the height, neither Claimant nor Ms. Nash recalled seeing the sign on the day of her accident (id., pp. 330, 385-386). Ms. Chapin testified that the tree/sign are located about 15-20 feet off to the side of the Trail (i.e., the trail that Claimant said continued going forward at the place where she veered off onto the path to the right) (id., pp. 291-292).

Claimant and her companions proceeded farther along that path to the right until they reached some woods, though she said that the new path was not as wide as the original trail they had taken (see Ex. 10 [path leading into woods]). Mr. Panebianco drew an orange line with an arrow on Exhibit 10 to illustrate that, when he and Claimant visited the Park, they also walked straight back into the woods and then headed to the left (Tr., pp. 71-74). He said that the distance from the sign/tree to the woods is about 40 feet (id., pp. 68-69).

Claimant said that she and her classmates continued to walk in the wooded area, with brush on either side of what she still perceived to be a path (see Exs. 11 and 12). Mr. Panebianco said that, when they visited, he and Claimant also went into a hilly, wooded area "with high pine trees" and "a lot of needles, kind of a path but nothing definitive" (Tr., p. 69; see id., pp. 282-283 [Ms. Chapin also described pine trees, scrub brush, and pine needles underfoot in this area]).

Finally, Claimant and Ms. Nash, who were walking ahead of the other two classmates, came to and proceeded to walk along another portion of the dry creek bed until they came to a rock ledge overlooking a gorge (Tr., pp. 344-345, 391). Claimant said there was "a large flat of rocks that looked as if people had been walking over it" (id., p. 389; see Exs. 13 and 14 [depicting dry creek bed/flat rocks]). Mr. Panebianco also said that, beyond the hilly section is lower ground that heads down to a "cliff," "ledge," or "drop-off" (id., p. 75). Ms. Chapin also noted that the ground slopes down towards the dry creek bed and contains loose dirt, rocks and pine needles so that she had to watch her footing (id., p. 282).

Ms. Nash described the drop into the gorge as relatively steep, with lots of trees and leaves (Tr., pp. 346-347). Claimant testified that they "stopped at the ledge and discussed what we were going to do" (id., p. 391). She said that Exhibits 15 and 22 depict the place where she was standing (id., pp. 392-393). Ms. Nash also thought that the place looked like the area shown in Exhibit 15 (id., p. 332). Mr. Panebianco related, however, that Claimant was unable to identify which one of the ledges she fell from when they visited the Park a few weeks after the accident (id., pp. 82, 99).Below the ledge where she stood, Claimant saw a series of other ledges. Claimant and Ms. Nash each thought the ledges looked like stairs and Ms. Panebianco thought that she could walk down those steps (id., pp. 331, 392-394). Although they could not see the bottom from the ledge upon which they stood, Claimant and Ms. Nash decided to attempt to descend, by means of those ledges, because they wanted to get to the bottom of the gorge (id., p. 392). According to Claimant, the girls were "[e]xploring, just trying to go get to the bottom and find a different way to the falls" [*4](id., p.395). At her deposition, Ms. Panebianco, likewise, stated that they were "going to see if we could find an alternate route to the [new] falls" (Ex. JJ, p. 104). At trial, Claimant said that "[w]e were trying to continue from the path we were on to the next trail and get to the falls" (Tr., p. 418). Mr. Panebianco also testified that his daughter told him that they were "looking for a shortcut" to get to the bottom of the falls (id., pp. 35, 37).

Claimant and Ms. Nash were the only two eyewitnesses to the accident. They agreed that Ms. Nash was to the left of Claimant as Ms. Panebianco began her descent (Tr., pp. 332, 395). Claimant said that she sat down on the ledge depicted in the photograph that is Exhibit 22 ("X" with her initials next to it) and used her hands to lower herself and step down to a second ledge that is farther down (id., pp. 396-397, 409, 430). She thought that the second ledge is situated perhaps two to three feet below the first ledge, although she also stated that she is a poor judge of distances and previously had indicated that the height differential was10 or 15 feet (id., pp. 396, 421).

Ms. Panebianco paused briefly on the second ledge. Ms. Nash thought that Claimant "was considering how to go about her next move" (Tr., p. 351). By contrast, Ms. Nash could not find a path down from where she was standing (id., pp. 332-333; 395). The two girls then talked, with Ms. Nash above, "just kind of [at] ground level, basically" (id., p. 335) and Claimant below her. Ms. Nash said that Claimant's face was "a little bit more pale Whiter than normal" (id., p. 362) and that she "looked a little unsure or nervous, so I [said], are you okay I can help you back up, what do you want to do? But, [Ms. Panebianco] just said, you, know, I'm okay, I'm just going to try to go down to the next [ledge]' " (id., p. 336). Claimant agreed that she declined Ms. Nash's offer of help and decided to "to continue stepping down to get to the bottom" (id., p. 398) even though she was "a little nervous" (id., p. 401). Ms. Panebianco also said that "it looked easy [to continue down] and not as scary as it would be to go up" (id., p. 403). Asked, on direct examination, if she perceived her position on the second ledge to be dangerous, Claimant replied, "I was scared, yes" (id., p. 407).

Claimant then told Ms. Nash that she intended to jump down to the next ledge (Tr., p. 353-354). Ms. Panebianco tried to "step down" to a third ledge that was lower and a little to the left, but she could not reach it (id., p. 399, 420). The two classmates each believed that the ledge Claimant was attempting to descend to was about four feet wide (id., pp. 355, 404). Claimant did not sit down this time in attempting to lower herself (id., p. 410). Rather, while still standing, she attempted to "hop or jump" (id., pp. 404, 410) to the third ledge, but Claimant said that she "slipped and fell down" (id., p. 401). The two young women each thought that Claimant's foot or leg might have touched the ledge she was intending to jump down to, but Ms. Panebianco did not gain any purchase there and slipped off and continued to fall, coming to rest on a ledge that was perhaps eight to ten feet farther below the third ledge onto which she was attempting to step (id., pp. 402, 357-358). Ms. Nash related that Claimant "jumped too far out" (id., p. 355) as she hopped down and twisted in the air as she fell, landing face down with her leg in a strange position (id., pp.357, 360). Ms. Panebianco believed that she lost consciousness (id., p. 402).

Ms. Nash saw Claimant fall and raised the alarm for assistance (Tr., pp. 336, 338, 361). The Patron Accident Report recites that Claimant "climbed into Dry Falls' gorge area, jumped to lower level, lost balance and tumbled onto lower ledge, then fell over to mid-tier. Total fall approx[imately] 36 [feet]" (Ex. B).

Ms. Chapin traced in blue the approximate route she believed her group of State employees followed, later on the day of the accident, from the Trail sign shown in Exhibit 6 to the gorge and [*5]ledges (see Ex. 1 and Ex. II). She said that blood visible on the cliff face of the gorge and gauze packages scattered on one of the ledges guided the group to the ledge where Claimant came to rest (see Ex. 16 [ledge with gauze packages]). Ms. Chapin, also testified that, during her tenure as supervisor at CFSP from 2001 to 2010, no other patron had to be extricated from the place from which Claimant was removed (Tr., pp. 103, 285).

A great deal of testimony also was elicited concerning signage at CFSP. Ms. Chapin agreed that many paths throughout CFSP lead off of designated trails. She said that they are created by deer, or sometimes even Park patrons. She also agreed that it was foreseeable that, if patrons walked on the undesignated path visible in Exhibit 9, they could come to a dangerous drop-off. On four or five occasions, Ms. Chapin directed that brush be piled up to create a natural barricade to keep animals and people away from the path depicted in Exhibit 9 and to keep them headed in the right direction on the Trail. Those efforts proved unsuccessful as a long-term solution, however, because the animals and/or humans either walked around the brush piles, or pushed them out of the way. That is when the sign was installed, though Ms. Chapin agreed that the sign, likewise, failed to prevent people from walking towards the drop-off.

Ms. Chapin testified that, some time prior to the date of Claimant's accident, she personally affixed the orange sign (visible in Exhibit 9) 10-12 feet high on the tree in order to keep patrons out of that area "[b]ecause it wasn't the designated trail" (Tr., p. 153) and because of the dangerous drop-offs farther off the Trail (id., pp. 152, 275). She agreed that Exhibit N is a close-up photograph of the same sign and that Exhibit HH is an example of exactly the same type of sign (id., pp. 156, 276, 311). Exhibit HH reads as follows:

POSTED

NO TRESPASSING

FOR ANY PURPOSE

WHATSOEVER

UNDEVELOPED LANDS

NOT OPEN TO THE PUBLICShe agreed that, in 2007, the orange sign discussed above was the only posted sign beside the Trail in that area. She also agreed that there were no orange posted signs located closer to the dry creek bed by the gorge and ledges. She further agreed that another type of sign used in the Park would provide better warning to the public about dangerous drops that could result in serious injury or death than the orange sign that was posted (see Ex. 19).

LAW

To establish a prima facie case of negligence in a premises liability claim asserting that injury resulted from a dangerous condition, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, [3d Dept 2011]; De Luke v City of Albany, 27 AD3d 925, 926 [3d Dept 2006]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness [*6]credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).

"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 [1984]; see Arsenault v State of New York, 96 AD3d 97, 101 [3d Dept 2012]; Cohen v State of New York, 50 AD3d 1234, 1235 [3d Dept 2008], lv denied 10 NY3d 713 [2008]). Accordingly, while the State is not an insurer of the safety of visitors to its parks (see McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law duty "to take reasonable precautions to prevent accidents which might foreseeably occur as the result of dangerous terrain on its property, " including the duty to warn park patrons against hazards by, for example, posting signs (Walter v State of New York, 185 AD2d 536, 538 [3d Dept 1992]; see Preston v State of New York, 59 NY2d 997, 998 [1983]; Arsenault, supra; Cohen, supra).

"The duty to take reasonable precautions does not extend[, however,] to open and obvious conditions that are natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses' " (Cohen, supra, quoting Tarricone v State of New York, 175 AD2d 308, 309 [3d Dept 1991], lv denied 78 NY2d 862 [1991]; see Arsenault, supra). "In such situations, [D]efendant is not liable for injuries caused thereby" (Cohen, supra).

To be open and obvious the condition " must be one that could not be overlooked by any observer reasonably using his or her ordinary senses' " (Arsenault, supra at 102, quoting Garrido v City of New York, 9 AD3d 267, 268 [1st Dept 2004] [emphasis supplied by Court in Arsenault]). By contrast, there still may be a duty to warn with respect to "a latent hazard" or condition (Tagle v Jakob, 97 NY2d 165, 169 [2001]). Moreover, whether or not there is a duty to warn does not relieve Defendant's duty to maintain the Park in a reasonably safe condition (Arsenault, supra at 103; MacDonald v City of Schenectady, 308 AD2d 125 [3d Dept 2003]).

The existence of a dangerous condition, and, if so, whether it is open and obvious or latent in nature, is generally a question of fact that may hinge upon the facts and circumstances peculiar to each case (Tagle, supra; Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]). Finally, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]); Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds 86 NY2d 744 [1995]; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43 [Ct Cl 2002], affd 307 AD2d 605 [3d Dept 2003]).

DISCUSSION

Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant failed to meet her burden, and did not establish by a preponderance of the credible evidence that Defendant was negligent in connection with her accident. The witnesses provided generally sincere testimony, although that of Claimant, Ms. Nash, and Mr. Panebianco each was marked, at times, by vagueness and imprecision, particularly with respect to the route by which Claimant came to the gorge and ledges. Claimant, moreover, admitted that she is a poor judge of distances. By contrast, the Court found Ms. Chapin's testimony with respect to the configuration and dimensions of the Trail and [*7]distances between different points to be both persuasive and credit-worthy.

The Court concludes that the ledges in the dry falls gorge at CFSP constitute "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 [4th Dept 1996] [no duty to warn that steep, rocky path into gorge was dangerous]; see Cometti v Hunter Mtn. Festivals, 241 AD2d 896, 898 [3d Dept 1997] [no duty where plaintiff chose to walk down steep ski trail in summer]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538 [2d Dept 1989] [no liability where infant plaintiff injured while climbing down face of cliff]). The Court further concludes that the condition could not have been overlooked and was readily observable by any Park patron through the ordinary operation of his or her senses. In fact, Claimant did see what was there to be seen. She was not caught unaware by a latent danger, as was the claimant in Walter v State of New York, supra [who had difficulty seeing the edge of a cliff obscured by trees and underbrush and slid off]; cf. Tarricone, supra [no liability where another claimant fell off cliff ledge because of carelessness]).

Rather, in this instance, Claimant and Ms. Nash walked along the large, flat rocks on the dry creek bed. They could see the relatively steep gorge. They stopped at the edge of the precipice to deliberate about how they wished to proceed. The photographic exhibits evidence the open, obvious, and dangerous condition of the gorge and the ledges. Claimant then made a conscious decision to attempt a descent to the bottom of the gorge. She paused again to consider her situation when she reached the second ledge. Claimant then declined Ms. Nash's offer to help her back up. Ms. Panebianco, instead, made a second election to proceed and tried, unsuccessfully, to jump or hop to a third ledge, the maneuver that resulted in her fall. The Court further determines that Claimant underestimated the vertical distances she was required to descend. A New York Park Police document suggests that the distance between the ledges is on the order of six to twelve feet (see Ex. 27), which is consistent with Claimant's inability to step down to the third ledge and her need to hop or jump.

Thus, the Court concludes that Defendant was under no duty to take precautions or warn patrons about the open and obvious danger of the gorge and ledges. Indeed, to erect barriers or to clutter the area with superfluous warning signs about the manifest danger present, would serve only to mar the dramatic natural grandeur of the gorge that is one of the chief attractions that draws patrons to the Park.

Moreover, the Court concludes that Defendant maintained the Park in a reasonably safe condition. The Trail itself appears to have been well groomed and maintained. The Court cannot credit testimony by Claimant and others that they were under a misapprehension that the path that veered to the right was a trail. To the contrary, the photographic exhibits clearly evidence a qualitative difference between the well-groomed Trail (see Exs. 7 and 8) and the ragged, overgrown, "deer path," to use Ms. Nash's description (Tr., p. 326), that Claimant and her friends chose to follow (see Exs. 9 and 10).

If the rough, unkempt nature of the path was insufficient to apprise Claimant that she had left the designated Trail, the large, bright orange sign that Ms. Chapin installed 10-12 feet up on a tree directly adjacent to the deer path clearly posts that anyone walking in that direction was trespassing onto undeveloped lands that are not open to the public for any purpose whatsoever (see Exs. 9 and HH). Considerable attention at trial was devoted to an examination of other signs utilized at CFSP that could have provided more explicit warning as to the dangerous condition at the edge of the [*8]gorge and the ledges (see Ex. 19). The question, however, is not whether the warnings provided could have been better. Rather, it is whether they were sufficientand reasonable under the circumstances, which includes the fact that the gorge and ledges are natural geographical phenomena (see Arsenault, supra at 104). In this case, the Court concludes that the posted sign was more than adequate to apprise Claimant that she was leaving the designated Trail. Moreover, and in any event, a more explicit message on the sign would not have deterred Claimant because she did not see the sign, even though it was brightly colored and in close proximity to the area where she was walking.Claimant and her companions continued to walk for another 40 feet past the sign, until they entered the hilly, wooded area. Claimant said that she still perceived a path in that area, although her father conceded it was "nothing definitive." The Court cannot agree. It is unable to discern even the hint of a path in an area where the ground is covered by scrub and pine needles (see Exs. 11 and 12). Rather, it resembles the undeveloped land whose existence was advertised by the orange sign. "The invitation to use a public park is not an absolute one. It is rather an invitation to use the facilities of the park in the manner in which and for the purposes for which they were designated and intended The State is not required to maintain its parks in such condition that its patrons may wander at will over each and every portion thereof" (Pope v State of New York, 198 Misc 31, 36 [Ct Cl 1950], affd 277 AD 1157 [4th Dept 1950]).

Finally, it bears noting that Claimant traversed the deer path and wooded area, as well as the flat rocks and dry creek bed at the edge of the gorge safely, without injury or incident. The area of the gorge where Claimant began to descend the ledges was more than 60 feet from where she left the Trail (20 feet from the Trail to the sign, another 40 feet from the sign to the woods, plus some additional distance from the woods to the edge of the gorge). While that is not as far as the 300 yards from the main highway to the whirlpool in Cohen, it is more than twice the 30 foot distance from the fence to the edge of the cliff in Walter. Moreover, while Ms. Chapin was aware that people had walked on the path that Claimant followed into the woods and towards the gorge, she could not recall, during her nine years at CFSP, another Park patron that had to be extricated from the place from which Claimant was removed. By contrast, no liability was found by the Third Department in Arsenault even though the trial court noted that the park police reported that patrons habitually walked off the trails in the creek bed, some around the falls' gorge where claimant was fatally injured in an avalanche, and the park manager would not have been surprised if more than 15 people were near the rock walls by the falls' area on the day of the incident (see Arsenault v State of New York, UID No. 2011-018-220 [Ct Cl, Fitzpatrick, J., June 3, 2011] [the Third Department did note that patrons were asked to leave prohibited areas, and ticketed if they refused to do so]). Likewise, the Third Department found no liability in Cohen even though the trial court determined that the State knew of a prior similar occurrence in that area within the previous five years (Cohen v State of New York, 15 Misc 3d 1144[A], * 9 [Ct Cl, 2007]).

Finally, at the point when Claimant decided to descend the ledges, she said that she was "exploring," "looking for a shortcut," a "different," or an "alternate route" to the bottom of the gorge and the falls. Thus, the Court concludes that she knew, or should have known, that she was no longer on the Trail.

For all the foregoing reasons, the Court concludes that Claimant failed to establish by a preponderance of the credible evidence, that the State failed to maintain CFSP or the Trail in a reasonably safe condition. [*9]

As discussed above, as for the gorge itself and the ledges, they constitute a natural geographical phenomenon whose danger is open, obvious, and manifest. Thus, the lack of warning signs or barriers at or near the edge of the gorge does not constitute a breach of any duty by the State to this Claimant.

CONCLUSION

Claimant is a bright, engaging young woman who, fortunately, and despite the serious accident that is the subject of this Claim, has recovered sufficiently from her injuries to be able to pursue her college studies. Her accident was a regrettable and harrowing event to be sure, but not one for which Defendant is liable. Based on all the foregoing, the Court finds that Claimants failed to establish their case by a preponderance of the credible evidence and the Claim is dismissed.

All motions upon which the Court reserved decision at trial are hereby denied.

All objections upon which the Court reserved determination at trial are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

Appendices: Footnotes

Footnote 1:Portions of transcripts of Claimant's depositions, taken on October 17, 2007 and November 18, 2008, were admitted into evidence (see Ex. JJ).

Footnote 2:Portions of the transcript of Catherine Panebianco's deposition, taken on November 18, 2008, were admitted into evidence (see Ex. JJ).

Footnote 3:Portions of the transcript of NYSPPO Robert Rensy's deposition, taken on June 1, 2009, were admitted into evidence (see Ex. 57).

Footnote 4:Portions of the transcript of NYSPPO Jack F. Adams' deposition, taken on June 1, 2009, were admitted into evidence (see Ex. 58).

Footnote 5:Ms. Chapin noted the location within the Park of the sign depicted in Exhibit 6 by drawing a red number 1 on a map (see Exs. 1 [Park map] and II [enlarged copy of Exhibit 1]).

Footnote 6:Ms. Chapin traced the course of the dry creek bed by drawing a red line and, further, noted the location depicted in Exhibit 8 where the dry creek bed crosses the Trail by drawing a red number 3 on the Park map (see Exs. 1 and II).

Footnote 7:Mr. Panebianco also thought that one encounters the area depicted in Exhibit 7 only after having crossed the dry creek bed.

Footnote 8:Ms. Chapin noted, by drawing on the Park map, the locations of the area alongside the Trail depicted in Exhibit 9 (red number 4) and the sign and tree visible in Exhibit 9 (red number 8) and also drew a red arrow to indicate the direction of the view shown in Exhibit 9 (see Exs. 1 and II).

Footnote 9:Mr. Panebianco agreed that wood chips covered the trail at least as far as the "X" drawn on Exhibit 7, which he believed was after the dry creek bed and a distance, he estimated, of some 50-75 feet from the sign in Exhibit 6 (Tr., pp. 63-64).

Footnote 10:Mr. Panebianco said that it "didn't have any bark, or wood chips on it, it was just a path" (Tr., p. 100).