Opinion
99727.
Decided August 12, 2004.
DANIEL P. BUTTAFUOCO ASSOCIATES (BY: JAMES S. McCARTHY, ESQ. and DANIEL P. BUTTAFUOCO, ESQ.), for claimant.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL (BY: JOHN SHIELDS, ASSISTANT ATT GEN), for defendant.
Lynda Soosar, the Claimant herein, alleges in Claim number 99727 that she suffered personal injury due to Defendant's negligence in allowing a known dangerous condition to exist on the Goose Creek Bridge on the Jones Beach Causeway. Specifically, Claimant alleges that on August 22, 1998 at approximately 11:00 a.m. she slipped and fell while rollerblading on Goose Creek Bridge, when her rollerblade wheels were caught in a gap in a walkway maintained by the State of New York for pedestrian and other recreational travel. Trial on the issue of liability alone was held on May 5 and 6, 2004.
FINDINGS OF FACT
Claimant — a 37-year-old office manager at the time of the accident — testified that she had been an active rollerblader for six years. She had engaged in the sport nearly every Saturday and Sunday from April to October along the same 9-mile round-trip route from Cedar Creek Park to Jones Beach countless times during those years. Indeed, as of the day of the accident she had traveled the route over 100 times, estimating that she did the workout approximately three (3) times per week. She said that she had been skating for approximately 20 minutes that morning, covering the two (2) mile distance from the beginning of the 4½ mile route one-way to the beach, when she came to the start of the walkway portion of Goose Creek Bridge.
Goose Creek Bridge is a drawbridge — or bascule bridge — that opens for marine traffic that travels beneath it. The area where the two pieces of the bridge separate is joined by finger joints or expansion joints. Such joints are used generally to allow expansion and contraction of all types of bridges due to changes in weather, in order to avoid cracking of the bridge. When the weather is hot, the bridge expands and the joints draw closer. When it is cold, the bridge contracts and the joints are further apart. In addition to expansion and contraction, a finger joint on a drawbridge is present to allow the bridge to open and close. The joints are "W-shaped", with the triangular, peak point of the "W" on one side designed to fit in the space of the inverted "W" on the other.
Claimant identified several photographs taken by her father in September 1998 as fairly and accurately depicting the appearance of the walkway across Goose Creek Bridge as she approached the site of her fall, including several signs. [Exhibits 1-5]. The first sign is rectangular in shape and has black letters on a white background indicating: "STOP WALK BIKE OVER BRIDGE" and is located on the left-hand side of the path. [Exhibit 1]. Two more signs, placed on the right-hand side of the path, one on top of the other, give additional instructions. [Exhibits 2-3]. On the top, is a rectangular-shaped sign, with black letters on an orange background indicating: "ALL RUNNERS SKATERS BIKERS PLEASE WALK ACROSS BRIDGE." [ Id.]. Immediately below this sign, is another sign placed diagonally, indicating in black letters on an orange background: "BUMPS." [ Id.]. Additionally, on the asphalt paved portion of the path immediately after the two orange signs, the word "WALK" has been painted in white letters. [Exhibit 2].
The pathway itself is approximately five to six feet wide, allowing one person travel in each direction, and is bordered by a chain link fence on either side. At the bottom of the path where the initial signs are posted, and as the pathway ascends on an incline toward the center of the bridge, the path is paved in what appears to be asphalt. [Exhibits 2 and 4]. The asphalt ends and the pathway continues as a smooth, level surface leading to the part of the bridge that lifts for marine traffic including a finger joint. [Exhibit 5]. The smooth part is painted a bright green. [ Id.]. In sharp contrast to the bright green surface the finger joint is painted a bright, pinkish red. [Exhibits 5 and 6]. Claimant presumed that the smooth part of the pathway was some type of metal.
Claimant testified that when crossing the drawbridge, she would slow to a walk on her rollerblades — as she did on the day of the accident — although walking on rollerblades meant she "inevitably rolled somewhat." She was aware that the size of the gap between the finger joints varied, and stated that when the gap was narrow she slowly rolled over it, and when it was wider she stepped over it. She did not interpret the warning signs at the beginning of the bridge as suggesting that she remove her rollerblades before walking across. As she approached the flat "metal part" of the pathway, she noticed a woman coming toward her on a bicycle, who seemed to be unsteady. Claimant moved to the right somewhat, and the back wheel of her right skate got caught in the gap between the finger joints of the drawbridge. She then spun counterclockwise a full turn, and fell to the ground suffering serious injury. Claimant testified that she had stepped over the finger joint many times before and knew that it was there, but that on August 22, 1998 it was a larger gap than ever before.
All quotations are to trial notes or audiotapes unless otherwise indicated.
Although on direct examination Claimant indicated she did not see the gap until after she fell, drawing her conclusion after the fact that the gap was wider than normal, on cross-examination she conceded that she saw the gap "seconds before falling." She reiterated that Exhibit 6 — a photograph showing a rollerblade skate across the finger joints on the path — is a fair and accurate representation of the joints as they appeared on August 22, 1998. This photograph shows the finger joints almost directly aligned, with a gap of an indeterminate width, since no measurements were discussed with regard to this photograph. The Court notes, however, that the yellow dotted line dividing the lanes of travel on the pathway continues directly across the gap, with no perceivable jagged aspect to it to demonstrate that the fingers of the joint are not aligned to interlock as they should. Additionally, the peaks of the joints clearly fall into the corresponding space on each side, showing the interlocking as well.
Somewhat inconsistently, Claimant also identified on re-direct examination a series of photographs of the path on the drawbridge taken by New York State employees at an unspecified time, and showing a markedly wider gap between the finger joints than those she had identified earlier as fairly and accurately representing the finger joints as they appeared on August 22, 1998. [ See Exhibits 36-41]. Notably, the peaks of the joints in this series of photographs do not fall into the corresponding space as they do in the photographs originally identified by Claimant, rendering her assessment of what constitutes a fair and accurate representation of how the finger joints appeared on the day of the accident suspect.
Nicholas Bellizzi, Claimant's expert, is a licensed professional engineer with experience in traffic engineering and safety, but limited experience with bridges. He indicated he had no experience with bascule bridges. He based his knowledge of the structural elements of a bascule bridge upon his engineering education in the 1970's, and had never designed a bridge, although he had been involved in the surface work of major bridge projects such as the George Washington Bridge and the Manhattan Bridge.
Mr. Bellizzi opined that the gap presented by the finger joints on the pedestrian walkway was "excessive," based upon the photographs admitted in evidence, and constituted a dangerous condition. He noted that in the hot months — July and August — the bridge would expand and the finger joints would draw closer to each other. He compared a photograph of the pedestrian walkway taken some time in 1996 [Exhibit 28] to the close-up photograph of the finger joints taken at some unspecified time by State employees [Exhibit 38], and stated that the 1996 photograph showed the "proper alignment" of the finger joints. He said "the `W's' should come together" or "mesh."
Exhibit 28 — apparently taken from a standing height looking down the walkway — depicts the "W's" aligned across from each other, yet still with some perceivable space in between. In addition to the uncertainty as to what time of year this photograph was taken, there are no measurements to show what the space is between the sides.
Exhibit 38 also depicts separated "W's", that do not appear to align directly across from one another, or appear to align in a more skewed fashion. A "standard pen" — described by Mr. Bellizzi as six-inches long — has been placed across the central, triangular portions of the "W" on each side of the joint. By his calculation, the space from end to end of the inverted portions of the "W's" is eight inches. The Court notes that the distance between the triangular tips of the "W's", however, would appear to be one to three inches based upon the scale described by Mr. Bellizzi.
In addition to his opinion that the gap between the joints was excessive for a pedestrian walkway, Mr. Bellizzi also thought that the warning signs present inadequately advised of any potential hazard. He said that a "bump" sign is not a "gap" sign, and does not adequately warn of the upcoming hazardous condition. Warning signs, he explained, are a two-step process. He said that an advance warning sign, such as "gap ahead" or "expansion joint ahead" should have been placed at the beginning of the bridge, and that an additional sign saying "gap" or other hazard location sign at the actual location of the gap should also have been posted. In his view, the signs that were posted were directed primarily to bicyclists, and the indication that one should walk over the bridge merely tells pedestrians not to run, and that bicyclists should dismount.
In addition to better warning signs, Mr. Bellizzi thought that a simple solution to any gap problems would have been to place some type of rubber mat on one side of the joint, that would rise with the bridge when it lifted, and cover any gap when the drawbridge was in the closed position.
Working outward from the center of the bridge, Mr. Bellizzi explained that the separate portions of a bridge are described as spans. The central portion where the accident occurred is called the bascule span. On either side of that central portion are the flanking spans. The approach spans are those areas beyond the flanking spans where the roadway ends and the bridge begins.
In support of his opinion that there was notice of the dangerous condition to the State, Mr. Bellizzi relied on certain internal memoranda between the New York State Department of Transportation (hereafter DOT) personnel as well as its engineering consultants concerning construction on the approach spans of the bridge. According to the bid proposal by the DOT, work on these spans was slated for completion on May 23, 1998: Memorial Day; and did not involve any portion of the flanking or bascule spans. [Exhibit 15]. Mr. Bellizzi found it significant that in a DOT memorandum after the Memorial Day opening, temporary personnel were to be stationed at the contractor's expense at either end of the bridge approaches to "dismount . . . bicyclists and provid[e] . . . assistance where needed," [Exhibit 17] suggesting, in his view, safety concerns.
He noted that there were "chronic problems with misalignment", pointing to a June 12, 1998 letter from the consulting engineers to the DOT project engineer in which the consulting engineers note that there were differences between the pre-construction operation of the bascule span and the conditions present when they visited the site. [ See Exhibit 18]. On direct examination Mr. Bellizzi found that the discussion implied that the bascule spans were improperly aligned. On cross-examination, however, the witness appeared to concede that the main concern of the consulting engineers in this letter was how the permanent structure of the bridge would operate smoothly, and the effect pile driving would have on the flanking and bascule spans, but that there were no safety problems with reference to the bascule span.
In an internal memorandum Mr. Bellizzi found significant, dated August 21, 1998, the writer describes problems with the "uneven alignment of north and south leaves of the north bound ( sic) lanes. When the pins are driven into position to lock the span, one leaf is pulled downward to complete the locking. A loud noise of "BANG" is the result of leaves been (sic) forced to be aligned. . . ." [Exhibit 19]. On cross-examination Mr. Bellizzi conceded that the issue being described in that memorandum was one of horizontal alignment — where one side of the drawbridge might end up higher than the other — and that the memorandum is stressing the need for the locking pins to work more effectively and with less noise.
The same writer had written a memorandum dated August 3, 1998 noting a contractor's barge had struck the bascule span at some point prior to that day: an event that Mr. Bellizzi found significant for his conclusions regarding chronic misalignment. [ See Exhibit 23]. On cross-examination, however, Mr. Bellizzi conceded that the memorandum mentions only damage to an underwater cable, not the finger joints of the bascule span.
Finally, a letter dated May 8, 2000 from the consulting engineers to the DOT was also relied on by Mr. Bellizzi to support his conclusion that there were chronic misalignment problems before the 1998 accident. [Exhibit 13]. The letter discusses several rehabilitation projects concerning the Goose Creek Bridge, including rehabilitations in 1987 and 1989, and what is described as the "emergency rehabilitation project in 1998." [ Id.]. The writer states "[w]hen the concrete T-beam approach spans were removed during the emergency rehabilitation project in 1998, some opening of the finger joints was observed. This movement was over a fairly short period of time, and was not entirely unexpected. This was likely the immediate `rebound' of the bascule leaves with the longitudinal force from the approaches removed . . . There is concern over a vertical misalignment of the bascule leaves. It is known that during the emergency replacement of the approach spans in 1998 some transverse and vertical movement took place. This put pressure on the rear of the bascule girder, at the rear live load anchor, not allowing hard contact with the forward bearings. The shear lock bar was then required to `drive down' the leaves to provide continuity . . ." [ Id.].
On cross-examination with respect to this letter — written two years after the accident — Mr. Bellizzi conceded that the concern appeared to have been with getting the two decks of the bridge to close thoroughly, and how the lock bar mechanism was being operated to avoid horizontal — or height differential — misalignment, and the resulting stress on the lock bar mechanism. Stress on the lock bars results because once the bridge is down, and the lock bars are engaged, they correct any horizontal and/or transverse alignment problems. There is no mention of any hazard associated with a gap between the finger joints giving the State notice of a dangerous condition.
Meaning side to side, or width.
Moreover, on further cross-examination, Mr. Bellizzi's concessions vitiated many of his conclusions. He had never inspected the bridge, relying only on the documents and photographs supplied by Claimant to draw his conclusions. He conceded that every bridge is designed differently, and that all expansion joints need a gap to allow the expansion of the bridge, and that there can "never be a perfect fit." When a drawbridge is involved, not only is the expansion joint present to allow natural expansion, but also to open and close the decks of the bridge smoothly. Although he thought the rubber mat was a good solution, he also opined that an appropriate warning sign would have done the job. By the same token, he also admitted that warning signs are generally present to warn people who are unfamiliar with the area of the conditions ahead, and that when there are too many signs at a location the message is diluted.
Mr. Bellizzi conceded that he had not seen any records of prior similar accidents at the location although the bridge had been in existence for 70 years. He thought that fixing the gap would have involved a "major structural change" that was not warranted, when an appropriate warning sign would do, although he thought that the signs present were not sufficient. He affirmed that none of the documents he reviewed ever described the gap between the finger joints as "excessive" but only described the bascule span as "misaligned." He agreed that the photographs Claimant's father took in September 1998 would likely show a greater gap than that which would have been present in August 1998 since September is a cooler month than August. [ See Exhibits 5, 6, 7, 8]. He agreed that the pathway had been designed prior to the advent of rollerblading. [ See Exhibit 10]. He agreed that a memorandum shown to him concerning accidents on the bicycle path [ See Exhibit 12] — in which the bright colored painting of the pathway and the painting of a center line is directed — only evidences safety concerns over the two-way traffic, not any safety concerns over gaps between the finger joints.
Other than the deposition testimony of DOT employees read into the record, Ms. Soosar and Mr. Bellizzi were the only witnesses on Claimant's direct case.
Paul Besmertnik, an almost 35-year employee of the DOT and currently employed as the Region 10 Regional Structures Engineer for the DOT, testified on behalf of the Defendant. Mr. Besmertnik is a licensed professional engineer with significant experience in design and structures — particularly bridges, including bascule bridges — but more limited experience with highway and traffic safety. One of his many assignments with the DOT had been pursuant to the statutorily mandated bridge inspection program both as an on-site inspector and as a supervisor. As part of that program, inspectors "flag" problems on bridges. These flags would include safety concerns — such as a hole in a fence — as well as structural concerns — such as a hole in the steel structure itself. Once a problem is flagged, the DOT's job is to resolve the defect as quickly as possible. Approximately 150 flags are managed per year, and are not removed until the DOT is satisfied that the corrective work is accomplished. When a matter should be flagged is a discretionary determination of the inspectors, all of whom are professional engineers.
Mr. Besmertnik reiterated that the finger joint is used on bridges for seasonal expansion, and that they are never entirely enmeshed. A finger joint — as opposed to some other type of joint with straight edges — is favored on a bascule bridge because of the need to open and close the bridge decks smoothly. The respective sides of the finger joint are designed not to have contact with one another. He stated that there are five bascule bridges under DOT jurisdiction, and that all have finger joints containing gaps comparable to those present on the Goose Creek Bridge.
Mr. Besmertnik is familiar with the pathway across Goose Creek Bridge both professionally and personally, having bicycled across it many times. He noted that in the documents he reviewed concerning the bridge, there had never been any concern over an excessive gap between the finger joints, nor was he aware of a concern in his professional experience. Somewhat elliptically, he noted that the fact that the location had never been flagged would indicate it was a normal and acceptable condition. There were no reports of accidents along the pathway involving an excessive gap.
With respect to Mr. Bellizzi's suggestion that a rubber mat should have been placed on one edge, Mr. Besmertnik said that although a mat might occasionally be used on a fixed bridge, it was a poor choice for a bascule bridge because of the additional hazard that would be created should the mat itself become dislodged — as would be likely to happen — in the opening and closing of the finger joints over a period of time. He also opined that any transverse movement — or side to side movement — would not impact on any opening of the finger joint, although it could mean that the curbs at the end of the bridge might be misaligned by one-half inch.
On cross-examination, while viewing the photograph taken by State employees at some unspecified time showing the finger joints with a standard pen across the peak of the "W", Mr. Besmertnik agreed that if a rollerblader placed her blade on the space between the low parts of the "W" it would be a hazard. [ See Exhibit 38]. In his view, however, and using the 6-inch pen as a reference point, the significant measurement is between the opposite peaks of the "W's". Between the peaks, he said, there is an acceptable difference of between 1½ and 2 inches. He again honestly agreed that if a person put his foot directly into the gap there would be a problem, however he said a person who did not step carefully would have the same problem with a gap where a subway platform meets the train. Mr. Besmertnik would not give an opinion on the warning signs at the accident location since he did not consider himself an expert on signs.
DISCUSSION AND CONCLUSION
Although the State has a duty as the owner and operator of a recreational area to protect the public from foreseeable risks of harm, it is not the insurer of the safety of those who use the area for recreational purposes. Its duty is to exercise "reasonable care under the circumstances . . ." [ Basso v. Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. The duty of care is limited by a claimant's reasonable expectations under the circumstances. The State's obligation is to make the pathway — in this case — as safe as it appears to be so that the Claimant can fully comprehend and perceive the risk she is assuming by using the recreational path.
Assuming that the State did not create the dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v. American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v. Metropolitan Transp. Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670 (1984). With respect to constructive notice, any ". . . defect must be visible or apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . ( citation omitted)." Gordon v. American Museum of Natural History, supra, at 837.
There is no duty to warn against conditions that are readily observed by those employing the reasonable use of their senses. Stasiak v. Sears, Roebuck Co., 281 AD2d 533 (2d Dept 2001); Masone v. State of New York, 149 Misc 2d 255 (Ct Cl 1990); see also Martinez v. City of New York, 307 AD2d 989, 991 (2d Dept 2003); cf. Berfas v. Town of Oyster Bay, 286 AD2d 466 (2d Dept 2001). Additionally, ". . . by 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" [ Morgan v. State of New York, 90 NY2d 471, 484 (1997)], including risks due to "open and obvious defects in the construction of the playing field, [for example,] as long as the participant is aware of the risks and appreciates the nature of the risks . . . ( citations omitted)." Greenburg v. Peekskill City School Dist., 255 AD2d 487, 488 (2d Dept 1998); See also Green v. City of New York, 263 AD2d 385 (1st Dept 1999); Cross v. State of New York, Claim No. 95789, UID 2000-013-511(Patti, J., September 12, 2000). "[A]ssumption of risk is not an absolute defense but a measure of the defendant's duty of care . . . (Emphasis in original)." Morgan v. State of New York, supra at 483-484, quoting, Turcotte v. Fell, 68 NY2d 432.
Summary judgment dismissing the complaint granted. Plaintiff slipped and fell on a paint spill in store. Defendant was aware of spill, had placed cones to warn of the danger, and had established, court concluded, as a matter of law, that there was no time within which to remedy the condition, and that there was no duty to warn about the open and obvious condition.
Claimant was injured when he fell on a sand pile while riding his dirt bike on a dirt trail in a public park. Court said the dirt pile was an obvious hazard that the State had no duty to warn about even if it could be anticipated that dirt bike riders might attempt to jump the pile. The ". . . subject pile of sand did not constitute a dangerous condition to be reasonably foreseeable and reasonably careful users of the park . . ." Masone v. State, supra, at 260.
Summary judgment dismissing complaint against city granted. City had no duty to warn bicyclist about tree well in public sidewalk as it was an open and obvious condition.
Summary judgment denied where it could not be said as matter of law that defects on paved town roads were open and obvious. The plaintiff/bicyclist was injured when he hit a rut in the unfamiliar road.
In Auricchio v. State of New York, Claim Number 97133, Motion No. M-61165 (unreported decision filed October 16, 2000 Silverman, J.), the Court of Claims dismissed a case where the claimant was injured while rollerblading on an oval running track at a school. Notably, the claimant there was a less experienced skater than the Claimant here, and had only been to the location on two other occasions. The Court stated:
"Rollerblading is a form of exercise which foresees that an individual may fall due to their own loss of balance, a defect in the skating surface or an outside influence causing them to lose their balance. Claimant was aware of the lay out ( sic) of the track, having been there twice before and rollerbladed one week prior to her accident . . . Claimant makes no allegation that the hole was concealed in any manner, in fact, she alleges that it is an open hole in the track surface. The Court notes that claimant makes no offer as to the depth of the hole in the surface. The condition was an open and obvious condition and was part of the skating surface. Therefore, claimant assumed the risk of skating on the track and it is deemed that she consented to the injury causing event because it was apparent or readily foreseeable." Similarly, in another recent case, the Third Department affirmed the Court of Claims finding that a bicyclist, injured when her tire struck a visible depression in a campground roadway, assumed the risk of a known, apparent or reasonably foreseeable consequence of participation in bicycle riding. Dobert v. State of New York, 8 AD3d 873 (3d Dept 2004), See also Goldberg v. Town of Hempstead, 289 AD2d 198 (2d Dept 2001).
Another case describing the risks assumed in rollerblading is Surace v. Lostrappo, 176 Misc 2d 408 (Nassau Co Sup Ct 1998), where plaintiff, an experienced rollerblader, fell after attempting to break the fall of defendant, a less experienced rollerblader in a restaurant parking lot.
For the more factually detailed trial court decision, see Dobert v. State of New York, Claim No. 105068, Motion Nos. M-66774, CM-66862, UID# 2003-032-105 (October 6, 2003, Hard, J.).
Based upon the evidence presented here, the condition described on the pathway across the Goose Creek Bridge is an open and obvious one, readily observable by the reasonable use of one's senses. As stated in Auricchio v. State of New York, supra, some of the inherent risks of the sport of rollerblading are falling due to imperfect surfaces, loss of balance or another outside influence distracting the skater. Just as the injured bobsledder's familiarity with the bobsled course at the Mr. Van Hoevenberg Bobsled Run could not be ignored in Morgan v. State of New York, supra, the Claimant's familiarity with the path over Goose Creek Bridge and in particular the presence of a gap of varying size at the finger joint cannot be ignored. In light of her familiarity with the gap, the presence or absence of warning signs is irrelevant. Indeed, in viewing the photographs of the warning signs it is clear that a reasonable person would infer that use of wheels on the bridge — of any kind — might pose a potential problem.
In addition to the gap being an open and obvious condition, Claimant was also distracted by the oncoming bicyclist, another inherent risk of the sport of rollerblading.
If there was a dangerous condition created by an excessive gap between the finger joints of the bascule portion of the Goose Creek Bridge, there has been no showing that the State was aware of the condition and failed to cure it. Additionally, if this was a dangerous condition of which the State was aware and failed to correct, there has been no showing that the condition was the proximate cause of the Claimant's accident, given the Claimant's knowledge of the gap, and the distraction of the bicycle rider coming from the opposite direction. It is only those foreseeable dangerous conditions which are not remedied within a reasonable time which may establish liability on the State's part, [ Gordon v. American Museum of Natural History, supra], assuming that proximate cause and actual damages are proven as well.
Accordingly, Claimant has failed to establish by a preponderance of the credible evidence any liability on the part of the State of New York and therefore, Claim number 99727 is hereby dismissed in its entirety.
Let judgment be entered accordingly.