Opinion
# 2012-032-003 Claim No. 116750
05-25-2012
LaRock v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2012-032-003 Claimant(s): MARTIN LaROCK Claimant short name: LaRock Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116750 Motion number(s): Cross-motion number(s): Judge: JUDITH A. HARD Claimant's attorney: Robert G. Bombara, Esq. Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Anthony Rotondi, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: May 25, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
FACTS
Claimant, Martin LaRock, seeks damages for personal injuries he sustained on August 16, 2007, when a tree fell on him while camping at Cumberland Bay State Park in Plattsburgh, New York. At the trial of this claim, claimant testified that on August 15, 2007, he went camping with a friend at Cumberland Bay State Park in Plattsburgh, New York. He was assigned campsite 33 where he erected his blue four-person tent (Exhibit 9). The following day, at approximately 1:30 P.M., claimant fell asleep in his tent. He testified that it was a pleasant warm afternoon. At approximately 4:00 P.M., he awoke unable to breathe and in excruciating pain in his lower back, hips and pelvic area. A 40-50 foot tree had fallen on him and his tent (Exhibits 1-3).
Dr. Terry A. Tattartestified as claimant's expert on forestry and arboriculture. He visited campsite 33 at Cumberland Bay State Park in the Spring of 2010. He also reviewed photographs taken after the accident (Exhibits 1-3), of the American Basswood tree that fell on claimant.He found after examining these photographs, that the tree failed from its root system, as it was completely uprooted and had fallen across claimant's blue tent as indicated in Exhibits 1-3. After examining a photograph of the fallen tree and its roots, Dr. Tattar opined that the tree may have fallen due to its abnormally small root system which would have made the tree become unstable (Exhibit 2-bottom photograph; T:45). Upon examination of Exhibit 3, another photograph of the uprooted tree, Dr. Tattar marked on Exhibit 3-A, a flat horizontal area on the roots, which he opined indicated that the tree did not have roots in that area (T:52-53). He believed that a small missing section of root is enough to weaken the tree and cause structural instability. Dr. Tattar marked Exhibit 2-A to show a dirt access road next to the fallen tree. He testified that such unfettered access to a campsite by vehicular traffic is likely to be very stressful to the root system (T:55). He suggested that vehicular traffic onto the campsites near trees may have broken or cut the roots of the tree or compacted the soil around the tree. Compaction of soil squeezes the oxygen out of the roots (T: 55).
Dr. Tattar received his undergraduate degree in Biology and Chemistry from Northeastern University. He received his Ph.D. in Botany and Plant Pathology from the University of New Hampshire. He worked as a plant pathologist for the United States Forest Service for two years. He worked as a professor of Plant Pathology at the University of Massachusetts for 29 years where he was the Director of the Shade Tree Laboratory. He published a book in 1976 entitled "The Diseases of Shade Trees". The Court received him as an expert.
The Court does not admit the portion of Dr. Tattar's testimony which relies on the Examination Before Trial testimony of Christopher Case that the subject area was a wetland (T:116). Claimant failed to establish that Mr. Case was unavailable to testify at the trial in accordance with CPLR § 3117. Further, Dr. Tattar's later explanation that he used the term "wetland" only in the forestry sense was not explained. Therefore, the Court cannot determine the significance of such characterization in contrast to an Environmental Conservation Law designation (T: 69-70). No documentary proof was offered indicating that Cumberland Bay State Park, or any part thereof, was a wetland.
Dr. Tattar noted that this particular tree was an "edge" treein that it was located at the end of Cumberland Bay State Park. He defined an edge tree as a forest tree that used to have trees around it to support it, that then becomes located at the edge of a park with no trees around it. An edge tree tends to grow towards the outer area where there is more light, thereby becoming lopsided and unstable, and more prone to failure due to the wind (T:56-63). Although there were two oak trees next to the American Basswood tree, there were no trees between it and the boundary fence of the park, hence he defined it as an edge tree (T:42, 61, 62, 112). He further testified that the American Basswood could fall within the category of a weak-wooded tree (T:75-76).
Defendant's objection is overruled as such testimony is relevant to the claim as pled.
Dr. Tattar referred to Exhibit 4, a training manual used by the employees of the Department of Parks and Historic Restoration, and testified that tree root problems are outlined on pages 57-59. He believed that root rot, as shown on page 58, was applicable to the subject tree. Root rot takes several years to progressively weaken the tree (T:88). He opined that a proper inspection should have been done by an employee who had been trained in hazard tree detection with an education for understanding arboriculture and forestry. Exhibit 5, a 2005 memorandum from the New York State Department of Parks, Recreation and Historic Development, was offered by claimant for the purpose of showing that the Department recognized that hazardous trees are a problem in its parks and that training in the detection and removal of such trees was needed. Exhibit 6, a 2005 memorandum from Bruce Barnard, a senior forester from the Department of Environmental Conservation, indicates that all the Eastern Cottonwood trees at Cumberland Bay State Park were hazardous and should be removed. According to Dr. Tattar, the American Basswood should have been recognized as a tree prone to failure due to its location as an edge tree near an access road, and species, a possible weak-wooded tree, which is more prone to windthrow.
According to Dr. Tattar, windthrow is the failure of a tree due to a windstorm (T:96). Defendant's objection is overruled as testimony regarding an edge tree is relevant to the claim (T: 65).
Upon cross-examination, Dr. Tattar testified that he did not visit the campsite at the time of the accident and that he visited it three years after the accident. In offering his opinion, he relied on the photographs admitted into evidence and an incident report which indicated that a severe storm blew through the park on August 16, 2007. He did not research the severity of the storm and testified that he believed the American Basswood tree that blew down was 40-50 years old. Dr. Tattar acknowledged that a defective or non-defective tree could fail depending upon the severity of a windstorm. Contrary to his direct testimony, he admitted that the status of being an edge tree does not mean it should be removed.
Gilbert Snide testified as defendant's first witness. Mr. Snide was employed as a Park Worker 3, a maintenance worker with some supervisory role over younger workers, at the New York State Department of Parks, Recreation and Historic Preservation for 22 years. One of his duties was to do tree reports and when trees "were bad" he had them removed (T:120). He estimated that once a year he received training at Alexandria Bay regarding tree safety issues (T:120).
At 2:00 P.M. on August 16, 2007, while he was riding in his truck on the campground, Mr. Snide heard that there was a severe storm heading towards the area. He warned the lifeguards, the people working the tollbooth, and then started to warn the people at the campsites. He never made it to campsite 33 because the storm became so severe he had to seek shelter for himself. He testified that the rainfall was so heavy that he could not see 20-30 feet in front of himself and that the wind was "real high" (T:122). The storm lasted from one-half hour to three-quarters of an hour. Many trees uprooted and limbs broke off from trees. At some point he was notified that a tree fell on a camper at campsite 33. He described the tree as "20 inches or better in diameter" and "35, 40 feet long" (T:123-124). He did not see any signs of disease or rot on the tree. Exhibit C indicates that 88 trees were removed from the effects of the storm on August 16, 2007. The tree that fell on claimant was the only American Basswood to fall.
Mr. Snide conducted a Fall and Spring inspection of the trees. He estimated that there were over 1000 trees in Cumberland Bay State Park. He described the inspections as looking for dead limbs or decay on the trees. If rot spots were noted, the tree was taken down, or if there were any dead limbs, they were cut off. He would look at the crown of the tree to inspect for decay and "if we notice that the crown is starting to decay, we know there is something that's happening to the tree and we eyeball it on the way down through [sic] and we check for a lot of different, you know, things." (T:125-126). The inspection reports for the year prior to the accident do not list any problem trees on campsite 33 (Exhibits A-B).
Upon cross-examination, Mr Snide testified that he has a high school diploma and was not otherwise trained in forestry other than attending conferences at Alexandria Bay. He was not trained how to determine if a root system was defective except by looking at the crown of the tree (T: 138, 145). Mr. Snide had no other experience in examining the root system of trees. To the best of his knowledge, no inspections were made by a forester or arboriculturist.
Defendant's next witness was Bruce Barnard who was a senior forester with the Department of Environmental Conservation for over thirty years. He visited Cumberland Bay State Park twice in his career, the last visit was in 2005. He wrote a letter to a Clint Allen at Cumberland Bay State Park in August 2005 indicating that upon his assessment of the trees in the park, the Eastern Cottonwood trees were hazardous and should be removed (Exhibit 6). He did not see any other hazardous species at that time. Upon review of Exhibit 2, a picture of the tree after it has fallen, he opined that he did not see anything on the trunk or what he could see of the crown of the tree, that would indicate that it was a hazardous tree. There were no splits or cracks in the bark. In examining the crown, he looked at the fullness of the crown, the size and color of the leaves, and the existence of dying branches. The crown is reflective of the health of the roots. However, he testified that the root mass "probably should be a little larger", but he did not see any signs of root rot (T:161-163). He defined the term "blowdown" as a tree being blown down by the wind and is usually root involved. Soil compaction could kill roots but the crown would reflect the damage, with a decrease in its size and leaf color. He was not sure if there was compaction damage upon a review of Exhibit 2. In his opinion, the American Basswood tree was in good condition in 2005, and based upon his observation of the bark in the photographs, it appeared that the root system was still obtaining good nourishment subsequent to 2005 (T: 168). Further, annual inspections are normal for this type of tree. He testified that the American Basswood tree is not a wetland tree, but is usually found in mesic sites which have medium, moist to dry, soil (T: 170).
Upon cross-examination, Mr. Barnard testified that hazardous tree inspections should be conducted by someone well-trained and such training should be conducted by someone with training as to the root system of the trees. The optimal choice would be someone with experience in agriculture and forestry and not a person with only a high school diploma (T:172). He testified that the root system for the American Basswood would extend 20-30 feet from the tree, and a roadway placed over the root system would impact it. In his opinion, based upon a site visit the week before trial, the road was 20 feet away from the tree.
LAW
"It is well settled that regardless of whether or not it is a source of income, the operation of a public park by a municipality is a quasi-private or corporate and not a governmental function." (Caldwell v Village of Is. Park, 304 NY 268 [1952]). When the State acts in a proprietary capacity as 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 [1984]). As a landowner, the State is charged with the duty of maintaining 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 (Basso v Miller, 40 NY2d 233 [1976]; Preston v State of New York, 59 NY2d 997 [1983]). Like any other landowner, the State is not an insurer of the safety of those using the property for recreational purposes so long as it does not present inherently dangerous conditions (see Paul v Kagan, 92 AD2d 988 [3d Dept 1983]). The mere happening of an accident does not render the State liable.
To establish a prima facie case of negligence, claimant must demonstrate by a preponderance of the credible evidence that: (1) defendant owed claimant a duty of care; (2) a breach of that duty; and (3) defendant's breach of that duty proximately caused the injury suffered by claimant (see Solomon v City of New York, 66 NY2d 1026 [1985]; Keating v Town of Burke, 86 AD3d 660 [3d Dept 2011]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505, Claim No. 107632 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066 [3d Dept 2008]).
The claimant must "demonstrate either that the defendants created the dangerous or defective condition which caused the accident, or that they had actual or constructive notice of the condition." (Dima v Breslin Realty, Inc., 240 AD2d 359 [2d Dept 1997], citing Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). In cases involving fallen trees or branches, a landowner will only be held liable if he or she knew or should have known about a defective condition of the tree (see Ivancic v Olmstead, 66 NY2d 349 [1985]; Harris v Village of E. Hills, 41 NY2d 446 [1977]; Asnip v State of New York, 300 AD2d 328 [2d Dept 2002]). Constructive notice will be imputed if "the record establishes that reasonable inspection would have revealed the dangerous condition of the tree" (Harris v Village of E. Hills, 41 NY2d 446, 449 [1977], supra; Sleezer v Zap, 90 AD3d 1121 [3d Dept 2011]).
"What level of inspection is 'reasonable' varies depending on the circumstances, with a higher level of attention being given to trees that are so located that falling branches are likely to come into contact with members of the public, as compared to the attention to be accorded trees that are located some distance away from the traveled are[a]" (Gugliotta v State of New York, 1999 N.Y. Misc. LEXIS 667, *17 [Ct Cl 1999], citing Fowle v State of New York, 187 AD2d 698 [2d Dept 1992]; Edgett v State of New York, 7 AD2d 570 [3d Dept 1959]). A dangerous condition must have been visible and apparent and must have existed for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it (Fowle v State of New York, 187 AD2d 698 [2d Dept 1992], supra). Relevant factors to be considered are whether signs of decay or other problems have been observed by neighbors and other passers-by; whether the tree itself needed branches removed or received other attention in the past; whether there is knowledge or evidence of climatic conditions or changes to the contour of the adjoining land that might impact the health of the tree; whether other similar trees have been found to be diseased and are removed; and the presence or absence of bark and foliage (Gugliotta v State of New York, 1999 N.Y. Misc. LEXIS 667, *18 supra, citing Ivancic v Olmstead, 66 NY2d 349, 351 supra; Edgett v State of New York 7AD2d 570, 572 supra, citations omitted).
Where an inspection is made on-foot and up close, a failure to observe objective signs of disease cannot be excused if the signs are readily discernible (see Harris v Village of E. Hills, 41 NY2d 446 [1977], supra). In Asnip v State of New York, 300 AD2d 328 [2d Dept 2002], supra, claimant's decedent was killed when a tree uprooted and fell on decedent's car. The Court held that the evidence established that the tree was alive and toppled because the root system failed. There were no outward signs of decay, therefore the municipality did not have constructive notice of a defect (see also, Sleezer v Zap, 90 AD3d 1121 [3d Dept 2011]). In Leach v Town of Yorktown, 251 AD2d 630 [2d Dept 1998], the Court held that because there were no outward signs of decay on a limbless hollow tree prior to the accident, the town did not have constructive notice. In Quog v Town of Brookhaven, 273 AD2d 287 [2d Dept 2000], the Court in holding that the municipality was not required to make an inspection stated, "even had such inspection been made, it would not have revealed the defect that was the proximate cause of the tree falling, i.e. the lack of an adequate root system."
The opinion of an expert may be rejected by the Court, even if it is uncontradicted (see Mechanick v Conradi, 139 AD2d 857 [3d Dept 1988]). Expert opinions or conclusions which state that something is "possible" or "could have" occurred may raise an issue as to admissibility (see Matott v Ward, 48 NY2d 455 [1979]). The weight to be attributed to expert testimony is left to the trier of fact (Ciaffone v Ciaffone, 228 AD2d 949 [3d Dept 1996]; citing Ducharme v Ducharme, 149 AD2d 737, 739 [3d Dept 1988]; Wilbur v Wilbur, 116 AD2d 953 [3d Dept 1986]). DISCUSSION
Upon consideration of all of the evidence, including a review of the exhibits and listening to the testimonies of witnesses and observing their demeanor as they did so, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, that defendant was negligent. Although defendant owed a duty of care to maintain the park in a reasonably safe condition, such duty was not breached.
The Court credits Mr. Barnard's testimony that the tree's crown and bark showed no outward evidence that the tree had small roots or root rot. As Mr. Snide testified, the trees in this park were inspected twice a year, which was more than Mr. Barnard indicated was normal and no inspection report issued prior to August 2007 showed that there was anything discernibly wrong with this tree. Although Dr. Tattar and Mr. Barnard agreed that inspections should be carried out by a person with more qualifications than a high school degree, the Court is not convinced that if someone more qualified did the inspections, he or she could have discerned that the tree had small roots. The evidence did not support that this American Basswood tree had the outward traits of a weak tree.
Dr. Tattar opined that the tree failed due to its location, as an edge tree, and species (T: 94). Specifically, he opined that an edge tree lends itself to a greater inclination to fail. However, other than his own opinion, he offered no supporting evidence regarding the same. To the contrary, Dr. Tattar testified on cross-examination that the status of a tree as an edge tree does not mean that it should be removed. Accordingly, the question becomes whether this particular species of tree (i.e. American Basswood) was one that should not have been an edge tree and the Court finds that claimant has failed to prove the same. Dr. Tattar's testimony that the American Basswood tree "could" fall within the category of a weak-wooded tree, seemingly to imply that it should not be an edge tree, is speculative at best.
Dr. Tattar's premise that improper soil compaction due to vehicular and foot traffic caused the blowdown, was also unsubstantiated by facts. Dr. Tattar did not identify any part of the crown or bark that was abnormal. He maintained that a proper inspection would have found that the tree was prone to fail, but did not state what outward physical characteristics were part of this tree that would cause it to fail. Moreover, the photograph upon which he relies of the "broken roots that are possibly cut roots" was taken after the tree had fallen, leaving open the possibility that the act of the tree falling is what caused the roots to break or be cut (Exhibit 3-top photograph/T:51).
Claimant failed to prove that defendant had any actual or constructive notice of the tree's small roots which may have contributed to the blowdown (Dima v Breslin Realty, 240 AD2d 359 [2d Dept 1997], supra [citation omitted]). Claimant failed to prove that any dangerous condition existed regarding this tree. No signs of outward decay were offered into evidence; no branches were removed from it prior to the accident; no evidence was offered to show how the paths and/or roadway may have impacted the tree; no other American Basswood blew down on August 16, 2007; and no evidence of absent foliage or bark was presented (Gugliotta v State of New York, 1999 N.Y. Misc. LEXIS 667, supra; Ivancic v Olmstead, 66 NY2d 349 [1985], supra; Edgett v State of New York,7 AD2d 570 [3d Dept 1959], supra). Clearly, objective signs of disease were not readily discernible (Harris v Village of E. Hills, 41 NY2d 446, 449 [1977], supra).
In view of the foregoing, the Court, upon review of the documentary evidence, oral testimony and the observance of the demeanor of the witnesses, dismisses the claim. All motions not heretofore addressed are denied.
Let judgment be entered accordingly.
May 25, 2012
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims