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TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT). ​

The Fourth Department, modifying (reversing) the Court of Claims, determined the “dangerous condition” cause of action brought on behalf of plaintiff’s decedent should not have been dismissed. The driver passed two signs indicating the bridge ahead was closed, drove through a sign that was in the middle of the road flanked by barricades, and then struck a beam at the entrance to the bridge which spanned the width of the bridge. The driver was killed instantly but the car continued and struck another similar beam spanning the other end of the bridge, injuring plaintiff’s decedent (who died the next day). The plaintiff alleged, under a “second impact” theory, the beams, which were welded at a height which allowed a vehicle to pass under under them, constituted a dangerous condition which was the proximate cause of death. The Fourth Department held the beams constituted a dangerous condition as a matter of law:

… [T]he court erred in dismissing the claim insofar as it alleges that defendants created a dangerous condition that constituted a proximate cause of decedent’s injuries. We therefore modify the judgment accordingly. Although defendant State of New York is not an insurer of its roads and highways … , it “has an obligation to provide and maintain adequate and proper barriers along its highways” … . Here, we conclude that defendants’ decision to weld a steel box beam across the front of the Bridge, at a height that allowed a motor vehicle to proceed under the beam, constituted the creation of a dangerous condition as a matter of law … .

… [C]aimant proceeded under a “second-impact theory whereby she contended, not that [defendants] caused the accident, but that [their] negligence . . . was [a] proximate cause of . . . decedent’s injury”… . The fact that no negligent act of defendants caused the vehicle to collide with the steel box beam is irrelevant. The point to be addressed is whether the steel box beam was a substantial factor in aggravating decedent’s injuries and causing his death … . Reames v State of New York, 2018 NY Slip Op 00713, Fourth Dept 2-2-18

NEGLIGENCE (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/COURT OF CLAIMS (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/TRAFFIC ACCIDENTS  (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/SECOND IMPACT THEORY  (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))/HIGHWAYS AND ROADS (TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT))

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BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT).

The Third Department, modifying Supreme Court, determined an state prison inmate's action in Supreme Court against doctors (Lieb and Angell) alleging medical malpractice should not have been dismissed as duplicating an action against the same doctors in the Court of Claims. It was possible the state would not indemnify the doctors who were not employees of the state and plaintiff would be left without recourse. The Supreme Court action should have been stayed, not dismissed:

The legal theory in the Court of Claims action is nearly identical to the Supreme Court action, and it is not disputed that the two actions arise out of the same set of facts. Moreover, Correction Law § 24-a provides that licensed physicians providing contractual medical care at the request of DOCCS are covered by the defense and indemnity provisions in Public Officers Law § 17, as long as the injury was not the result of intentional wrongdoing. As such, it appears that the dismissal of the Supreme Court action would not prejudice plaintiff's right to receive full recovery from all defendants, as intentional wrongdoing is not part of the Supreme Court action and any damages attendant to Lieb's or Angell's malpractice or negligence would be borne by the state in the Court of Claims action.

However, while these defense and indemnity provisions appear to apply to Lieb and Angell, the record is not fully developed at this time to make such a definite determination. Indeed, despite currently defending Angell, the state has neither conceded nor admitted in any of its submissions or pleadings that it is statutorily bound by Correction Law § 24-a and Public Officers Law § 17 (3) (a) to indemnify Lieb and Angell. Rothschild v Braselmann, 2018 NY Slip Op 00054, Third Dept 1-4-18

CIVIL PROCEDURE (BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT))/COURT OF CLAIMS (BECAUSE IT WAS POSSIBLE THE STATE WOULD REFUSE TO INDEMNIFY DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION BROUGHT BY A STATE PRISON INMATE, THE SIMILAR ACTION IN SUPREME COURT SHOULD NOT HAVE BEEN DISMISSED, BUT RATHER THE SUPREME COURT ACTION SHOULD BE STAYED PENDING THE OUTCOME IN THE COURT OF CLAIMS (THIRD DEPT))

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STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT).

The Second Department determined the state’s motion for summary judgment in this personal injury action was properly granted. Claimant alleged he suffered a head injury when diving into waves at a state park beach. Apparently claimant’s head hit the ocean floor:

Governmental entities owe a duty to ” act as a reasonable [person] in maintaining [their] property in a reasonably safe condition'” … . “The duty goes beyond the mere maintenance of the physical condition of the park” … , as there is also a “recognized duty of general supervision” … . The degree of general supervision must be “adequate” … .

Here, in support of its cross motion for summary judgment dismissing the claim, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure … . Furthermore, the defendant had no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor … . Courtney v State of New York, 2017 NY Slip Op 06250, Second Dept 8-23-17

 

NEGLIGENCE (SWIMMERS, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/COURT OF CLAIMS (STATE BEACHES, SWIMMERS, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/SWIMMERS (STATE BEACHES, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))/STATE PARKS  (STATE BEACHES, STATE HAS NO DUTY TO WARN SWIMMERS OF NATURAL CONDITIONS OF THE OCEAN FLOOR, PLAINTIFF WAS INJURED WHILE DIVING INTO WAVES (SECOND DEPT))

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NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT.

The Second Department, reversing the Court of Claims, determined a notice of intention to file a claim for medical malpractice was valid. A notice of intention to file a claim, unlike a notice of claim, may be filed by any “interested person,” here the wife of decedent (who was not representing the decedent’s estate at the time):

The claimant’s husband (hereinafter the decedent) was treated at Stony Brook University Hospital (hereinafter Stony Brook) from February 13, 2005, through March 3, 2005. The decedent was later treated at Mount Sinai Hospital from March 18, 2006, until his death on October 30, 2006. On April 19, 2006, the claimant, “as Proposed Guardian for” the decedent, filed a notice of intention to file a claim against the defendant State of New York to recover damages for medical malpractice that allegedly occurred while the decedent was treated at Stony Brook (hereinafter the notice of intention). On January 3, 2008, the claimant was granted letters of administration for the decedent’s estate. On January 11, 2008, the claimant filed a claim against the defendant to recover damages for medical malpractice, wrongful death, and loss of services.

The Court of Claims should have denied the defendant’s motion pursuant to Court of Claims Act §§ 10 and 11 to dismiss so much of the claim as sought to recover damages for the decedent’s conscious pain and suffering arising from medical malpractice. Contrary to the defendant’s contention and the court’s conclusion, the notice of intention filed by the claimant on April 19, 2006, was not invalid on the ground that the claimant lacked the authority to file it on behalf of the decedent, as the notice may be given by “any interested person” … . The Court of Appeals’ decision in Lichtenstein v State (93 NY2d 911) does not compel a different result, as that case involved the filing of a claim itself, as opposed to a notice of intention to file a claim. Matter of Dolce v State of New York, 2017 NY Slip Op 05434, 2nd Dept 7-5-17

COURT OF CLAIMS (NOTICE OF INTENTION TO FILE A CLAIM, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)/NOTICE OF INTENTION TO FILE A CLAIM (COURT OF CLAIMS, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)/TRUSTS AND ESTATES (COURT OF CLAIMS, NOTICE OF INTENTION TO FILE A CLAIM CAN BE FILED BY ANY INTERESTED PERSON, THE NOTICE WAS NOT INVALID BECAUSE THE FILER, DECEDENT’S WIFE, WAS NOT REPRESENTING DECEDENT’S ESTATE AT THE TIME 2ND DEPT)

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ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF.

The Third Department, reversing the Court of Claims, determined claimant limited liability company’s (LLC’s) notice of claim could be amended to add an attorney’s signature. The notice of claim was timely filed pro se. The defendant argued that the failure to have the claim filed by an attorney representing the LLC violated CPLR 321 (a) and was a jurisdictional defect. The Third Department disagreed, finding the application of CPLR 321 (a) flexible and the related requirement nonjurisdictional. The court also noted that the claimant’s demand for equitable relief was not incidental to the requested monetary relief and therefore must be dismissed as beyond the jurisdiction of the Court of Claims:

… [D]efendant does not point to any service or filing provision — or any other provision — of the Court of Claims Act that prohibits claimant from pro se representation. Instead, defendant relies on CPLR 321 (a), which provides that, subject to express exceptions, a “corporation or voluntary association shall appear by attorney” to “prosecute or defend a civil action,” and “like a corporation or a voluntary association, [an] LLC may only be represented by an attorney and not by one of its members who is not an attorney admitted to practice in the state of New York” … . Thus, as an initial matter, we conclude that compliance with CPLR 321 (a) does not implicate subject matter jurisdiction, as compliance with that provision is not a prerequisite to the waiver of sovereign immunity pursuant to the Court of Claims Act … . * * *

… [G]iven the flexibility of the prohibition on corporate pro se representation and the Legislature’s express intent that technical irregularities in filing are subject to correction, absent prejudice and upon just terms … we hold that, under these circumstances, the irregularity of claimant’s initial filing was one that the Court of Claims could have disregarded, given counsel’s subsequent appearance on behalf of claimant, by granting so much of claimant’s motion to amend the claim as added counsel’s signature … . Hamilton Livery Leasing, LLC v State of New York, 2017 NY Slip Op 04943, 3rd Dept 6-15-17

COURT OF CLAIMS (LIMITED LIABILITY COMPANY, EQUITABLE RELIEF, ATTORNEYS, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/CORPORATION LAW (LIMITED LIABILITY COMPANIES, COURT OF CLAIMS,  ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT)/ATTORNEYS (LIMITED LIABILITY COMPANIES, COURT OF CLAIMS, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/NOTICE OF CLAIM (COURT OF CLAIMS, LIMITED LIABILITY COMPANIES, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/EQUITABLE RELIEF (COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/CIVIL PROCEDURE (COURT OF CLAIMS, LIMITED LIABILITY COMPANIES, ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT, COURT OF CLAIMS CAN NOT GRANT EQUITABLE RELIEF WHICH IS NOT RELATED TO THE REQUESTED MONETARY RELIEF)/LIMITED LIABILITY COMPANIES (COURT OF CLAIMS,  ABSENCE OF AN ATTORNEY’S SIGNATURE ON A LIMITED LIABILITY COMPANY’S NOTICE OF CLAIM WAS NOT A JURISDICTIONAL DEFECT)

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CLAIMANT STRUCK A DOWNED LIGHT POLE WHICH HAD ROTTED BELOW GROUND, STATE DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION.

The Second Department determined the state did not have actual or constructive notice that a light pole was rotten. Claimant was injured when his vehicle struck a downed pole. The rot was not visible above ground. Evidence that rot was visible on other poles did not provide adequate notice:

Here, the Court of Claims correctly concluded that the claimant failed to establish that the State had either actual or constructive notice of any dangerous condition of the subject light pole. Rather, the evidence established that the rot on the pole was at the bottom of the pole, which was buried between six and seven feet below ground. Thus, a reasonable inspection would not have revealed the dangerous condition. The claimant’s evidence that a witness noticed rot on some of the wooden poles along Ocean Parkway during the prior 15 years is insufficient to provide notice regarding the specific pole involved in the accident. “A general awareness of a recurring problem in insufficient, without more, to establish constructive notice of the particular condition that caused the accident” … . Jeffries v State of New York, 2017 NY Slip Op 02409, 2nd Dept 3-29-17

 

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CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY.

The Second Department determined the claim alleging negligent highway design was properly dismissed after trial:

“[A] municipality owes to the public the absolute duty of keeping its streets in a reasonably safe condition” … . However, “in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision” … . Under the qualified immunity doctrine, liability may arise where there is proof that the State’s traffic design plan “evolved without adequate study or lacked a reasonable basis” … . Moreover, “something more than a mere choice between conflicting opinions of experts is required before the State . . . may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public” … .

Here, the Court of Claims properly dismissed the claim based upon the evidence the State submitted at trial, which showed that the design and placement of the guardrail were the result of a deliberate decision-making process after an adequate study and had a reasonable basis … . Gagliardi v State of New York, 2017 NY Slip Op 01845, 2nd Dept 3-15-17

 

COURT OF CLAIMS (CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/IMMUNITY (HIGHWAY DESIGN, CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/NEGLIGENCE (HIGHWAY DESIGN, CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/HIGWAYS AND ROADS (CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)/GUARDRAILS (CLAIM ALLEGING NEGLIGENT PLACEMENT OF A GUARDRAIL PROPERLY DISMISSED, STATE ENTITLED TO QUALIFIED IMMUNITY)

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ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW WAS PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS.

The Second Department, reversing Supreme Court, determined the town’s action pursuant to the Environmental Conservation Law seeking reimbursement for litigation costs incurred in defense of discrimination suits was properly and timely brought. Supreme Court had ruled the town should have brought an Article 78 action in Supreme Court:

In 1991, the New York State Legislature adopted article 44 of the Environmental Conservation Law (hereinafter the Greenway legislation), which created the Hudson River Valley Greenway (hereinafter the Greenway). The purpose of this article was to “protect and enhance the special places of scenic, cultural and ecological importance” in the Hudson River Valley (ECL 44-0101). Among other things, the Greenway legislation created a regional planning council and gave communities within its range the opportunity to enter into the “Greenway Compact,” a voluntary regional compact among municipalities to facilitate cooperative planning (see ECL 44-0103[2], [4]; 44-0119). To encourage communities to participate in the compact, the State of New York agreed that participating communities (as defined by ECL 44-0103[10]) would be entitled to indemnification in actions arising from their participation in the compact (see ECL 44-0119[7]). In 1992, this provision was amended to limit the indemnification in actions alleging, among other things, unlawful discrimination. The amendment provided that communities would be entitled to reimbursement for all reasonable attorneys’ fees and litigation expenses only if they prevailed in the underlying action. * * *

… ECL 44-0119(7) speaks of reimbursement and indemnification, and expressly states that, “[i]n any claim against a participating community of unlawful discriminatory practice, the attorney general shall not represent” the Town. Instead, pursuant to ECL 44-0119(7), if the Town prevails in litigating against “any claim” of unlawful discriminatory practice, it “shall” be reimbursed by the State for all reasonable attorneys’ fees and litigation expenses incurred in the defense of the action. … [T]he gravamen of the Town’s claim herein was for reimbursement of attorneys’ fees and litigation costs incurred by it in the defense of the two subject actions. The Town’s claim at bar is one for money damages against the State—a claim that was timely brought in the Court of Claims, which has exclusive jurisdiction of such matters … . Town of Rhinebeck v State of New York, 2017 NY Slip Op 00502, 2nd Dept 1-25-17

 

COURT OF CLAIMS (ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)/MUNICIPAL LAW (ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)/ENVIRONMENTAL LAW (ENVIRONMENTAL CONSERVATION LAW, ACTION BY TOWN SEEKING REIMBURSEMENT OF LITIGATION COSTS PURSUANT TO A PROVISION OF THE ENVIRONMENTAL CONSERVATION LAW PROPERLY AND TIMELY BROUGHT IN THE COURT OF CLAIMS)

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STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES.

The Second Department determined the state did have a duty to warn swimmers of rip currents. Claimant’s decedent drowned after a rip current pulled him away from shore:

Turning to the merits, “the State must act as a reasonable [person] in maintaining [its] property,'” such as a park, ” in a reasonably safe condition'” … . “The duty goes beyond the mere maintenance of the physical condition of the park” … , as there is a “recognized duty of general supervision” … . The degree of general supervision must be “adequate” … . Here, in support of its motion for summary judgment, the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence that it furnished a sufficient number of lifeguards, that those lifeguards were experienced and competent, and that they reacted to the situation in accordance with proper procedure … . In opposition, the claimant failed to raise a triable issue of fact … .

Furthermore, the defendant has no duty to warn swimmers of threats arising from the existence of natural, transitory conditions of the ocean floor … , including rip currents … . Seetaram v State of New York, 2017 NY Slip Op 00336, 2nd Dept 1-18-17

 

NEGLIGENCE (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/COURT OF CLAIMS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/SWIMMERS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/RIP CURRENTS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)/STATE PARKS (STATE DOES NOT HAVE A DUTY TO WARN SWIMMERS OF RIP CURRENTS AT STATE BEACHES)

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STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY.

The Third Department affirmed the Court of Claim’s determination that the absence of a guide rail was not the proximate cause of claimant’s injuries, and the state was entitled to qualified immunity because it had reasonably concluded after a study that a guide rail was not necessary. Claimant was injured when the ambulance in which he was riding struck a stone wall near the roadway:

Defendant’s duty to maintain roads in a reasonably safe condition includes the installation of guide rails when necessary … . With respect to highway safety and design, defendant is “accorded a qualified immunity from liability arising out of a highway planning decision” … . “Under this doctrine of qualified immunity, a governmental body may be held liable when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan” … . Schroeder v State of New York, 2016 NY Slip Op 08263, 3rd Dept 12-8-16

COURT OF CLAIMS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/IMMUNITY (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/QUALIFIED IMMUNITY (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/HIGHWAYS AND ROADS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/GUIDE RAILS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)/GUARD RAILS (STATE ENTITLED TO QUALIFIED IMMUNITY WITH RESPECT TO THE ABSENCE OF A GUIDE RAIL ALONG A HIGHWAY)

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