Opinion
No. 121855.
04-09-2015
Nicholas KHACHADOURIAN, Claimant, v. STATE of New York, Defendant.
Flint & Granich, PLLC, By Christopher P. Flint, Esq., for Claimant. Hon. Eric T. Schneiderman, Attorney General of the State of New York, By Glenn C. King, Assistant Attorney General, for Defendant.
Flint & Granich, PLLC, By Christopher P. Flint, Esq., for Claimant.
Hon. Eric T. Schneiderman, Attorney General of the State of New York, By Glenn C. King, Assistant Attorney General, for Defendant.
JAMES H. FERREIRA, J.
Claimant Nicholas Khachadourian filed this claim with the Chief Clerk of the Court of Claims on October 12, 2012. In it, claimant seeks damages arising from injuries he suffered on August 5, 2012 when he fell from a rope swing located near the Upper Hudson River Boat Launch on East River Drive in Warren County, New York. Claimant alleges that defendant State of New York owns and maintains the property upon which the rope swing was located and was negligent in allowing the use of the rope swing on its property, failing to prevent the use of the rope swing or warn of its dangers, failing to monitor or supervise the use of the rope swing and failing to ensure the safety of the rope swing.
A trial on the issue of liability was held on October 15 and 17, 2014 at the New York State Court of Claims in Albany, New York. Claimant testified and called seven witnesses: his brother, three State employees and three neighboring landowners. He also offered documentary and photographic evidence. Defendant did not call any witnesses and did not offer any exhibits. The parties submitted post-trial memoranda, which was received by the Court in January 2015.
Defendant objected to the admission of one of claimant's exhibits, a photograph of an airboat, marked as Claimant's Exhibit 24. The Court reserved on the objection at trial; upon due consideration, the objection is sustained and the evidence will not be admitted.
FACTS
The following facts are not in dispute. On August 5, 2012, claimant, who was 21 years old at the time, went to the Upper Hudson River Boat Launch with his brother and three other friends. The boat launch is located on East River Drive about two and a half miles south of Luzerne, New York. The group parked in the boat launch parking lot and used a path through the woods to access a rope swing located in a wooded area near the shoreline. The rope swing area is approximately centered on the shoreline of the wooded area; it is located approximately 131 feet from the end of the boat launch's bulkhead and approximately 124 feet from the fence line of the neighboring property. The path from the boat launch parking lot to the rope swing area is approximately 97 feet long. There is also a path leading from the boat launch ramp bulkhead along the shoreline to the rope swing area. At the time of the accident, there were several wooden platforms affixed to the trees, and a rope swing hung from one of the tree branches. The rope was about one inch in diameter and about 25 feet long. The bottom of the rope hung over the water, about ten feet from the shore, where the water depth was two to three feet. The rope had knots for people swinging on the rope to grab onto.
For the purposes of this claim, defendant does not contest ownership and/or control of the area where the accident occurred.
About 20 minutes after they arrived, claimant took the rope and climbed onto a platform about 16 feet above the ground. He tugged on the rope to make it taut and jumped off, intending to swing out over the water and let go. However, as soon as he jumped, the rope broke and claimant fell to the ground on the shore, injuring himself. The rope broke at a point about six to twelve inches down from where it was tied onto the tree limb. There were no signs in the boat launch area or rope swing area warning against or prohibiting rope swinging.
ANALYSIS
“To establish a prima facie case of negligence, the plaintiff is required to demonstrate that the defendant owed a duty to him or her, that the defendant breached that duty and that such breach was a proximate cause of the injuries sustained” (Evarts v. Pyro Eng'g, Inc., 117 A.D.3d 1148, 1150, 985 N.Y.S.2d 179 [3d Dept 2014] ; see Savage v. Desantis, 56 A.D.3d 1013, 1014, 868 N.Y.S.2d 787 [3d Dept 2008], lv denied 12 N.Y.3d 709 [2009] ). The State, as a landowner, has a duty to maintain its property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk' “ (Miller v. State of New York, 62 N.Y.2d 506, 513 [1984], quoting Preston v. State of New York, 59 N.Y.2d 997, 998 [1983] ; see Covington v. State of New York, 54 A.D.3d 1137, 1137–1138, 863 N.Y.S.2d 852 [3d Dept 2008] ). The State, however, “is not an insurer against every injury that might occur on its property” (Covington v. State of New York, 54 A.D.3d at 1137–1138, 863 N.Y.S.2d 852 ), and “[n]egligence cannot be presumed from the mere happening of an accident” (Mochen v. State of New York, 57 A.D.2d 719, 720, 396 N.Y.S.2d 113 [4th Dept 1977] ; see Melendez v. State of New York, 283 A.D.2d 729, 729, 725 N.Y.S.2d 113 [3d Dept 2001], appeal dismissed 97 N.Y.2d 649 [2001] ). “In order to establish that the State is liable for a claimant's injuries, there must be proof that the State created a dangerous condition or had actual or constructive notice of a dangerous condition, that it failed to properly act to correct the problem or warn of the danger, and that such failure was a proximate cause of the claimant's injuries” (Dispenza v. State of New York, 28 Misc.3d 1205[A] [Ct Cl 2010] ; see Harjes v. State of New York, 71 A.D.3d 1278, 1279, 896 N.Y.S.2d 248 [3d Dept 2010] ).
Initially, to the extent that defendant argues that the doctrine of assumption of the risk operates to bar recovery in this case, the Court rejects that argument. Although assumption of the risk is no longer an absolute defense to a negligence action (see CPLR 1411 ), the doctrine of primary assumption of the risk, if applicable, serves to relieve a defendant of its duty of reasonable care and is a complete bar to recovery (see Morgan v. State of New York, 90 N.Y.2d 471, 485 [1997] ; Turcotte v. Fell, 68 N.Y.2d 432, 437–439 [1986] ). In other words, when the doctrine of primary assumption of the risk applies, “the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence” (Turcotte v. Fell, 68 N.Y.2d at 438, 510 N.Y.S.2d 49, 502 N.E.2d 964 ; see Shay v. Contento, 92 A.D.3d 994, 995, 937 N.Y.S.2d 706 [3d Dept 2012] ). The doctrine “is limited in its application and is intended to foster ... socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from potentially crushing liability' “ (Ferland v. GMO Renewable Resources LLC, 105 A.D.3d 1158, 1162, 963 N.Y.S.2d 428 [3d Dept 2013], quoting Custodi v. Town of Amherst, 20 N.Y.3d 83, 88 [2012] ). The application of the doctrine is therefore limited to “cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues” (Custodi v. Town of Amherst, 20 N.Y.3d at 89, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; see Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 396 [2010] ). Here, claimant was not participating in a sporting event or recreational activity that was sponsored or otherwise promoted by defendant, and the accident did not take place at a designated athletic or
recreational venue. Rather, the injury-producing activity was informal and unsupervised. Thus, the Court finds that the doctrine of primary assumption of the risk does not apply to the facts of this case and that ordinary principles of negligence apply.
There is no dispute that the particular rope swing at issue in this case was a dangerous condition. There is also no evidence before the Court that defendant created the condition or had actual notice of it. Thus, the analysis of this case turns on the issue of whether the State had constructive notice of the dangerous condition. “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 [1986] ; see Feuerherm v. Grodinsky, 124 A.D.3d 1189, 1190 [3d Dept 2015] ). Additionally, “constructive notice may be based on the State's failure to reasonably inspect its property, provided such reasonable inspection would have revealed the dangerous condition” (Roberson v. State of New York, UID No.2011–030–016 [Ct Cl, Scuccimarra, J., July 14, 2011]; see Majer v. Schmidt, 169 A.D.2d 501, 503–504, 564 N.Y.S.2d 722 [1st Dept 1991] [A party “is chargeable with constructive notice of any fact which would have been disclosed by a reasonably diligent inquiry if circumstances are such as to indicate to a person of reasonable prudence and caution the necessity of making inquiry to ascertain the true facts, and he or she avoids such inquiry”] ).
Upon application of these principles to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence, and considering the testimony and demeanor of the witnesses, the Court finds that claimant has established, by a preponderance of the credible evidence, his claim of negligence against defendant.
The credible evidence presented at trial established unequivocally that the rope swing and the platforms had been present at the location for a significant period of time prior to the accident. On this point, claimant testified that he had visited the rope swing area “about a dozen times” between 2009 and August 5, 2012, the date of the accident (Tr. 20). He further testified that, except for the top platform which was added later, the platforms had been there since he started visiting the area in 2009 (Tr. 66). When asked whether he could tell how long the platforms had been there, claimant testified that the pine tree was “growing around” the wooden platform affixed to it (Tr. 68). Claimant's brother also testified that he had been going to the rope swing since 2009 and that there had always been platforms there (Tr. 103–105). Frederick Zilm, the owner of the property on the south side of the boat launch, testified that the rope swing and platforms had been there since at least 1990 (Tr. 215–216, 222). John Daub, the owner of the property on the north side of the boat launch, testified that he became aware of the rope swing in 2007, after he purchased his house (Tr. 237).
References preceded by “Tr.” are to the two-volume consecutively-paginated written transcript of the trial.
The evidence established that the rope swing was visible and apparent, such that a reasonable inspection of the property would have revealed the dangerous condition. The evidence at trial demonstrated that the rope swing area was a popular destination during the summer for swimmers and boaters. Claimant testified that “there was always ... a good amount of people on the weekends” at the rope swing area (Tr. 22). He explained that “it was a pretty big area in the woods. There's a log to sit down on. People were just hanging out, really, enjoying the water” (id. ). Claimant's brother testified that, on several occasions, he saw people pull up on their boats or jet skis and watch people jump off the rope swing (Tr. 106). On one occasion, he saw people get out of their boat and swim to shore to use the rope swing (Tr. 107). All three of the neighboring property owners confirmed that the rope swing and rope swing area was a popular summer recreational spot. Mr. Zilm testified that he had observed kids swinging on the rope and jumping into the river “all summer long” (Tr. 216). He had also observed people accessing the swing from the river and from the land (Tr. 217). Mrs. Lois Zilm similarly testified that it was a common occurrence in the summer to see kids jumping off the rope swing and into the water and that she saw people accessing the rope swing from the water and from the path from the parking lot (Tr. 225–227). Mr. Daub testified that he could hear people using the rope swing from his property and that it was common for boats to anchor near the rope swing area and for people to access the rope swing from the land; they would park in the parking lot and walk down the path to the rope swing (Tr. 237–239).
Additionally, the Court received evidence demonstrating that the rope swing area is visible from the water. Claimant so testified, and Mr. Zilm confirmed that the summertime rope swing activity is visible from the river and that he has seen the platforms in the trees from his boat. Likewise, Mrs. Zilm testified that she first became aware of the rope swing and platforms when she saw it from their boat. She testified that the rope swing and platforms were “[v]ery much”
visible from the water (Tr. 230). Mr. Daub similarly affirmed that the rope swing and platforms were readily visible from the river. Photographs offered by claimant also confirm that the rope swing area can be seen from the water at a relatively close range (see Claimant's Exhibits 6, 8–11).
Moreover, the evidence at trial established that two paths to the rope swing existed: one from the bulkhead at the boat launch and one from the parking area (Tr. 31–32, 175–177, 228–229) and that the path from the parking lot through the woods to the rope swing area had been there for a significant period of time and was visible from the parking lot. Claimant affirmed that the parking lot path was clearly visible from the parking lot on August 5, 2012 and was visible on his prior visits to the rope swing (see Claimant's Exhibit 4). Claimant's brother likewise testified that the path leading from the parking lot to the rope swing area was “kind of worn down” and had been there since the first time he went there in 2009 (Tr. 101). Mr. Zilm testified that the path from the parking lot to the rope swing had also been there since at least 1990 and that he had observed kids in bathing suits walking from their vehicles down the path. Claimant offered into evidence a photograph depicting the starting point of the path leading to the woods as viewed from the parking lot. The photograph confirms that path is visible from the parking lot and appears to have been there for some time, as the dirt on the path has little grass and appears to be packed down (see Claimant's Exhibit 4).
It appears from the testimony of the three State employees that neither the State employee responsible for managing the boat launch, nor either of the State employees responsible for maintenance of the boat launch at the time of the accident, had inspected the wooded area where the rope swing was located because they believed that the wooded area was not within their responsibilities. However, at least one State employee was aware of the path leading from the parking lot. Clarence Monroe, a former deputy sheriff and a seasonal State employee who was responsible for lawn maintenance at the boat launch in 2011 and 2012, testified that he was aware that there was a path leading from the parking lot into the woods, but he never went down that path because he did not have any reason to, as the woods was not part of the area that he was required to maintain (Tr. 124–125). Additionally, there is evidence that the State had received a complaint from Mr. Zilm concerning partying and garbage at the boat launch, but no inspection of the wooded area was done in response to this complaint (Tr. 220–221, 173–174). Importantly, Robert Fiorentino, the State employee who visited the site after the accident and ordered that the platforms and the remains of the rope be removed, estimated that a person would have to go only about ten feet down the path to see the structures in the trees (Tr. 184–185).
Based upon the foregoing, the Court concludes that the State should be charged with constructive notice of the dangerous condition. The Court is cognizant of the limited resources available to the State to inspect the vast amount of property that it owns. However, based solely on the specific circumstances presented herein, where the injury-producing activity was visible and apparent and would have been easily discoverable under any reasonably diligent inquiry or minimal inspection, the Court finds that defendant is liable for the injuries suffered by claimant (see Alestra v. State of New York, UID No.2013–040–031 [Ct Cl, McCarthy, May 23, 2013]; Roberson v. State of New York, UID No.2011–030–016 [Ct Cl, Scuccimarra, J., Jul. 14, 2011]; compare Cohen v. State of New York, 50 A.D.3d 1234, 1235, 854 N.Y.S.2d 253 [3d Dept 2008] ; Mayo v. State of New York, UID No.2011–045–504 [Ct Cl, Lopez–Summa, J., May 9, 2012] ).
Notwithstanding this finding, claimant must also bear some responsibility for the accident. Claimant, who was 21 years old at the time of the accident, is a high school graduate with some community college experience. He was very familiar with the rope swing, having used it before “at least a dozen times” in the four years prior to the accident (Tr. 20). He was well-aware of the risks involved, which included having to clear 10 feet of shoreline and shallow water depths of 2 to 3 feet before letting go of the rope at about 20 feet from the shoreline where the water depth was 10 to 12 feet (Tr. 83–87). Indeed, he acknowledged during his testimony that “there was a clear risk” of getting injured on the rope swing (Tr. 90, 95). He also acknowledged that he did not look at the rope before he started swinging on it that day (Tr. 84). Under these circumstances, it was reasonably foreseeable to claimant that his actions could result in an accident like the one that befell him.
Thus, upon weighing the evidence and considering the proof, the Court concludes that claimant has established by a preponderance of the credible evidence the cause of action sounding in negligence against defendant. The Court further concludes that based upon the entirety of proof offered at trial, the liability should be apportioned 60% against the defendant and 40% against the claimant for the injuries allegedly sustained by claimant on August 5, 2012. Any motions made at trial upon which the Court had previously reserved or which remain undecided are denied.
The Clerk of the Court is 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.