After trial on the issue of liability Defendant is 70% liable and Claimant is 30% liable for Claimant's fall. The Defendant had notice of the defect; the Claimant frequented the golf course for over 50 years.
|Claimant(s):||DONALD LEE MILLER|
|Claimant short name:||MILLER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||SUGARMAN LAW FIRM, LLP
By: Sam A. Elbadawi, Esquire
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Edward F. McArdle, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 23, 2018|
|See also (multicaptioned case)|
Claimant has sued the State for negligent maintenance of a fence on Battle Island Golf Course, a State-owned facility. The case was bifurcated, and a liability trial was held in the Syracuse District on June 12 and 13, 2017.
The evidence established that on August 13, 2014, Claimant was golfing in a 9-hole league with his brother, Edward Miller, at Battle Island Golf Course in the City of Oswego. The brothers had golfed at this course for many years, and Claimant since he was 10 years old. They were playing another two-man team, Kelvin Kio and Charles Grovine.(1) League play was every Wednesday evening from April to September. On the day in question, both brothers were playing the back nine holes, 10 through 18, and it was a nice summer evening. It had rained earlier in the day and the ground was still damp. The brothers traveled the course in a golf cart. Claimant wore shoes with cleats and after hitting his ball on the 13th hole, Claimant stepped over to the split rail fence at the back of the tee box where he placed his hand by one of the posts, as he lifted his right foot to clean grass out of his cleats. The rail gave way causing Claimant to fall down the embankment behind the fence. Both rails rolled down the hill as well. Neither Mr. Kio nor Mr. Grovine saw what happened before Claimant fell.
The 13th tee box is elevated and had a split rail fence along the back where the ground sloped downward about eight feet. A bench was nearby because the hole was short and golfers often had to wait for others to finish before they could tee off. Claimant did not recall the bench being at the tee that day, although, other witnesses said there was always a bench nearby but not always in the same location.
Two other golfers, Patrick Comerford and Steven Bullard, were playing the 10th hole; the 10th green was in front of the 13th tee box as they came down the fairway. They saw Claimant fall down the embankment and drove their golf cart over to check on him. They recalled that after a short time Claimant stood up, grimacing. Claimant continued playing his game. Ed Miller said Claimant had shoulder pain.
After they finished the match, Claimant spoke with the head of maintenance for the course, Richard Belowski, who wrote a short memo about the incident and attached it to a Patron Incident Report.(2) Mr. Belowski testified that the memo accurately reflected the information Claimant had given him about the fall. The body of the memo reads:
"The following was reported to me by Donald Miller in my office 8/13/2014 at 7 PM 'Standing on #13 tee I had Right hand on fence rail while cleaning my shoe the post shifted and I fell down the incline tumbling 3 times. Injuring my left leg both shoulders and back of head.' "
Mr. Belowski said one of the posts was askew when he went out to inspect the fence. Mr. Kio and Claimant both saw the post leaning after the fall. The post was easily removed from the hole. It was reinstalled and the rails were screwed together.
Numerous photos(3) of the fence and the 13th hole tee box were admitted into evidence and discussed by many of the witnesses. The parties stipulated that the fence in question had been installed in April 2014. Mr. Belowski oversaw its installation which was performed by the maintenance crew employed at the course. The old fence was removed and the new posts were placed in the existing holes. The rails were 10 feet long and the post holes were estimated to be 9 feet, 9 inches apart. Mr. Belowski said he tested the stability of the fence after its installation and again the next day. The photos show a "Keep Off Fence" sign on one of the rails. This sign was not on the fence on the day of the accident but had been on the old fence. Mr. Belowski visually checked all fences on the course daily and from time-to-time physically tested their stability. He had a crew of maintenance people who helped with the course upkeep. They were tasked with repairing anything they saw broken or reporting it to Mr. Belowski to handle it if they could not fix it. Mr. Belowski said no written records of the repairs or work done were kept unless a written complaint was generated.
Mr. Bullard, one of the golfers on the 10th hole who saw Claimant fall, testified that two weeks before Claimant's accident he, too, had an incident on the 13th tee. Mr. Bullard had leaned against the fence rail and it came loose, causing him to stumble backwards. Mr. Comerford was also there and recalled the rail coming loose, but said Mr. Bullard caught himself and did not fall. Mr. Bullard was not injured but he told Mr. Belowski about it afterward. Mr. Bullard left the rail on the ground to be sure someone would notice. Mr. Belowski had no recollection of this event, and said he never saw a fence rail left on the ground. He also had no recollection of any of his crew advising him of a loose post or fallen rail at anytime before Claimant's fall. According to Mr. Bullard, the rail that gave way when he leaned on the fence was the same top rail that had come loose and caused Claimant's fall. It was his recollection that the rails were only a half inch inside the posts and not wedged in as they should be. Mr. Belowski testified the rails should overlap a couple of inches inside the post.
All of the lay witnesses testified that they had leaned on fences or other things to clean their cleats, and they had seen other golfers do the same. In fact, Mr. Belowski said he, too, had leaned on the fences on the course and he had seen Claimant and others do so also.
Claimant's expert, Daniel Manning, a licensed architect, testified that in his professional opinion, the fence was not in a state of reasonable repair as required by the 2010 New York State Property Maintenance Code(4) (Code). The section he referenced reads:
"302.7 Accessory Structures. All accessory structures, including detached garages, fences and walls, shall be maintained structurally sound and in good repair."
It was Mr. Manning's opinion that after the rail came loose resulting in Mr. Bullard's near-fall, the fence was not repaired in a good, workmanlike manner; the failure to properly repair the fence violated Code section 302.7. That provision does not specify how the fence should be constructed or repaired.
Defendant called Barry Jordan, a licensed architect who specializes in golf course design and renovation. He explained the fence on the 13th hole was meant to be a visual barrier to keep golfers from walking or driving down the embankment. It was not meant to be a physical barrier on which to lean or sit. It was his opinion the fence was appropriately placed to prevent golfers from driving carts down a steep embankment.
Claimant suffers from Parkinson's Disease, which Claimant acknowledged affects his balance, but he denied that his condition contributed to his fall. Claimant testified his medication is effective in alleviating any symptoms and, typically, it is his knee which gives out causing him to fall down on one knee. Defendant argues that Claimant's medical condition caused or contributed to his fall. The Court finds no evidence to support that Claimant's disease contributed to his accident.
As a landowner, the State of New York has a duty to maintain its premises and facilities in a reasonably safe condition under the circumstances (see Preston v State of New York, 59 NY2d 997 ; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). Yet, the State is not an insurer of the safety of those who use its property (Smith v State of New York, 260 AD2d 819 [3d Dept 1999]) and negligence cannot be inferred by the mere happening of an accident (Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]). To establish liability, it is Claimant's burden to prove, by a preponderance of the credible evidence, that the State breached its duty of care when it either created or had actual or constructive notice of a dangerous condition on its property which was a substantial factor in causing Claimant's injury (Gordon v American Museum of Natural History, 67 NY2d 836 ).
The Court, acting as the trier of fact must review the evidence, listen carefully to the witnesses' testimony, observe their demeanor, and assess their credibility in order to determine whether a prima facie case has been presented (see Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Schoonmaker v State of New York, 32 AD2d 1005 ; LaCourt v State of New York, UID No. 2002-029-199 [Ct Cl, Mignano, J., July 25, 2002]).
Although State employees erected the fence, the Court credits Mr. Belowski's testimony that he inspected the fence and checked its stability the day of and the day after it was installed. The proof, therefore, does not support a finding that the State created the dangerous condition when the fence was installed. However, Mr. Bullard's fall two weeks before Claimant's, put the State on notice that the fence was in need of repair. The Court finds Mr. Bullard's testimony that he left the rail on the ground and told Mr. Belowski of the problem in sufficient time for it to be corrected credible, placing the State on notice of the dangerous condition of this fence. Although the fence was thereafter repaired, it was clearly not done adequately to remedy the danger since the same rail that gave way on Mr. Bullard came loose with Claimant. There was no warning of this risk, despite awareness that many golfers leaned on the fence to clean their cleats.
The Claimant is not without fault here. Claimant played in the same league at Battle Island for 50 years and was very familiar with the course. Claimant had other more supportive places to clean his cleats, including a nearby bench or even his golf cart. Either of those options would have been safer places for him to clean his golf shoes. The Court finds the State 70 percent liable and the Claimant 30 percent liable.
A trial on the issue of damages will be scheduled as soon as possible.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
January 23, 2018
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
1. Only Mr. Kio testified at trial.
2. Exhibit 14.
3. Exhibits 4, 6-12, and 15-22.
4. Exhibit 25, Section 302.7.