Claim alleging that claimants were each injured upon landing on an object in the Hudson River after swinging from a rope swing attached to a tree located on property owned by the United States is dismissed where claimants were owed no actionable negligence duty of care by the State of New York and, even assuming that such a duty was owed, failed to prove the existence of a dangerous condition, that any such condition caused claimants' injuries and that the State of New York had either actual or constructive notice of any such condition.
|Claimant(s):||CHRISTIAN MANOLEFF and KYLE MANOLEFF|
|Claimant short name:||MANOLEFF|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK, THE NEW YORK STATE THRUWAY AUTHORITY and THE NEW YORK STATE CANAL CORPORATION|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||SCHOPF LAW, PLLC
By: Jonathan G. Schopf, Esq.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
NEW YORK STATE ATTORNEY GENERAL
By: Anthony Rotondi, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 7, 2018|
|See also (multicaptioned case)|
Brothers Christian Manoleff and Kyle Manoleff (claimants), twenty-seven years old and twenty-six years old, respectively, were each injured on July 10, 2015, after each, in turn, had swung from a rope swing attached to a tree that immediately abutted the Hudson River in the Town of Saratoga, New York. Each brother was injured upon striking an unknown object under or on the surface of the river, with one brother using the rope swing immediately after the other. According to the parties' stipulated facts, the claimants each suffered "an impalement injury" upon landing "in the Hudson River in the same approximate location." The property upon which the tree and rope swing were located is owned by the United States and the parties agree that "the State of New York is not the fee owner of the land upon which the tree is located."
The claimants brought suit against New York State, the New York State Thruway Authority and the New York State Canal Corporation(1) , alleging, "[t]hat the Defendants negligently and carelessly failed to maintain the premises, including but not limited to the tree containing the rope swing, the rope swing itself and the landing area thereto, resulting in a dangerous, hazardous and unsafe condition; in permitting a dangerous condition to exist; in failing to warn the Plaintiffs (sic) of the dangerous and hazardous condition; in maintaining and/or allowing the dangerous condition to exist so that it created a nuisance and a trap and a menace to the safety of the Plaintiffs (sic); in failing to guard against a danger which Defendants knew of or should have reasonably anticipated; and in failing to provide safe passage and/or access for the Plaintiffs (sic)."
No trial of the claim was conducted. Rather, the parties submitted to the Court a Stipulated Record on Submission ("Record") - - which, in its eight exhibits, includes the deposition testimony of both claimants - - and a Joint Submission of Stipulated Facts ("Facts") to create a record upon which the Court would render its Decision and Judgment.
The parties, in their submitted Facts, set forth a number of "issues of law" that they suggest "are ripe for adjudication by the Court based upon the submitted testimony and facts." The Court disagrees insofar as it views as unnecessary the resolution of all of the issues of law the parties set forth, in order to decide the claim, and more specifically, as unnecessary to determine whether claimants have proven by a preponderance of the credible evidence that defendants negligently caused claimants' injuries.
The deposition testimony of the claimants makes clear the following:
1. Neither claimant knows what he struck in or on the Hudson River, and neither claimant knows what caused his impalement injury;
2. Several days following the incident, photographs of underwater "debris" in the area of claimants' use of the rope swing were taken (see Exhibit 5 of Record) - - neither claimant could identify with certainty what the underwater debris was, neither claimant could say whether he struck the underwater debris, and neither claimant identified the underwater debris as causing his injuries;
3. Neither claimant knew for how long the underwater debris had been present in the area of the rope swing; and,
4. Despite the rope swing having existed for fifteen years and despite having used the rope swing approximately a dozen times each in the preceding several years, neither claimant had ever been injured in its use, neither claimant had ever heard of any other individuals being hurt in its use, and neither claimant was aware of anyone that had made any complaint about the presence of debris in the water in the area of the rope swing.
Irrespective of the fact that the parties, in their submitted Facts, suggest that the Court resolve certain legal issues related to the ownership of and/or responsibility for an allegedly dangerous condition, the claim, founded in negligence, fails as a matter of proof.
The claimants were owed no actionable negligence duty of care by defendants.
In Jarmolowski v State of New York (23 AD3d 786 [3d Dept 2005], lv denied 6 NY3d 714 ), a privately owned motel "constructed a commercial dock which extends 80 feet into the waters of Lake George, the bed of which is owned by defendant . . . [claimant] dove from the end of the dock, struck the lake bottom and was rendered a quadriplegic."
Claimant argued in Jarmolowski that "common-law principles concerning the duty of landowners to maintain their premises in a reasonably safe condition applied to defendant and it breached this duty by permitting a dangerous and unsafe condition to be maintained on its property" (Jarmolowski, 23 AD3d at 786).
The Jarmolowski court disagreed and affirmed the lower court's dismissal of the claim for lack of proof of a legal duty owed to claimant, stating that:
"Preston v State of New York (59 NY2d 997 ) is dispositive of this argument. There, in an area specifically reserved by defendant for swimming, adjacent to an island that it owned, claimant was injured by a submerged object. Under those circumstances, the Court of Appeals instructs that defendant 'had a duty either to inspect and remove hazards from the water or to give warnings that the waters were used at the swimmer's risk' (id. at 998). However, the Court also stated that '[m]ere ownership does not give rise to the duty, but inviting the public to swim there does' (id.). Here, defendant only owns the bed of the lake. It did not specifically reserve the area for swimming nor did it invite the public to swim there. Invitation, if any existed, was from the owners of O'Sullivan's Motel."
In the present claim, like the claim in Jarmolowski, the defendants neither owned the land from which claimants alighted the rope swing nor did defendants invite the public to swim from the subject property or to swim in that particular portion of the Hudson River. As in Jarmolowski (23 AD3d at 786), the defendant State of New York, in the circumstances of this claim, "only owns the bed" of the river.
Significantly, the Preston court reminded (59 NY2d at 998) that the State of New York is not required to:
"[S]crutinize every square foot of riverbed and lakebottom that it owns. Mere ownership does not give rise to the duty, but inviting the public to swim there does. Obviously, an individual who bathes in a State lake in a primitive area of the Adirondacks cannot expect the State to have "sanitized" the area for safe public use."
This point, regarding actionable negligence duty with respect to injuries emanating from use of lakes or rivers, is further explained in Schiff v State of New York (31 AD3d 526 [2d Dept 2006]), in which:
"[Claimant] was injured while canoeing on the Peconic River in Suffolk County. The accident occurred when the injured claimant disembarked from his canoe a short distance from the shore, and impaled his leg on a rusty metal rod submerged in about three feet of water. The site of the accident was the Edwards Avenue "fishing access location," owned by the State of New York and managed by the New York State Department of Environmental Conservation (hereinafter the Department) as part of the Otis Pike nature preserve" (Schiff, 31 AD3d at 527).
The Schiff court reversed a grant of summary judgment to claimant and held as follows:
"[T]he court erred in finding, as a matter of law, that the State had a duty to inspect the river for submerged hazards, and that it had constructive notice of the embedded metal rod because its existence could have been discovered by such an inspection. Although a duty to inspect for underwater hazards has been recognized where the State invites the public to swim at a posted beach (see Preston v State of New York, 59 NY2d 997 ), the State is not required 'to scrutinize every square foot of riverbed and lakebottom that it owns' (id. at 998), and we decline to impose a duty upon the State to conduct an underwater inspection at a canoe launching site" (Schiff, 31 AD3d at 529).
Under the circumstances set forth in the submitted Record and Facts, claimants were owed no actionable duty of care by defendants and defendants were under no duty to inspect for "debris" in the river.
Next, even assuming defendants were under an actionable negligence duty of care with respect to the rope swing itself, on this record, the rope swing was not proven to be defective or to be a dangerous condition. The claimants rely exclusively upon the unreported decision in Khachdourian v State of New York (50 Misc 3d 1211 [A]), in asserting that a rope swing is an inherently dangerous condition. The Court does not agree that the mere existence of a rope swing, without more, constitutes a dangerous condition. The rope did not break. The tree or branch to which the rope swing was affixed did not break. There is no proof offered that the height of the rope swing caused or contributed to the claimants' injuries. The record instead reveals that the rope swing itself caused claimants no injury. Indeed, claimants could, conceivably, have been injured by the "debris" in the river by jumping, diving or swimming directly from their boat or from shore. The rope swing was simply not a necessary element in causing claimants' injuries.
In addition, and equally fatal to the claim, neither claimant could say what object or circumstance caused his impalement injury, whether a natural condition (e.g. rock or submerged tree limb) or man-made, whether transitory or permanent. Accordingly, the alleged existence of a dangerous condition in or on the water was unproven.
Finally, even were the existence of such a dangerous condition to be assumed, no proof was produced to establish that any of the defendants had either actual or constructive notice of it. On this point, neither claimant was able to say for how long the submerged debris in the area of the rope swing had existed (if indeed the debris even caused claimants' injuries), whether weeks or years. No proof established what the submerged debris was. Further, no direct or indirect proof was presented to establish that any of the defendants had any knowledge, or should reasonably have had knowledge of the submerged debris, especially so given its undetermined origin or composition.
In sum, the claim failed to prove that claimants were owed an actionable legal duty by defendants, and, even assuming that such a duty was owed, failed to prove the existence of a dangerous condition, failed to prove that any such alleged condition caused claimants' injuries and failed to prove that the defendants had either actual or constructive notice of any such alleged condition.
The claimants have failed to prove their claim by a preponderance of the credible evidence. The claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
June 7, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Given the Court's Judgment, the Court chooses to leave unaddressed whether the New York State Canal Corporation, a subsidiary of the New York State Thruway Authority when the claim arose, is a properly named defendant.