Jeremy Weese, a Minor, by his mother, Kathleen Weese, Claimant,
The State of New York, Defendant.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
For Claimant: MORAN & KUFTA BY: JAMES J. MORAN, ESQ.
For Defendant: HON. ELIOT SPITZER New York State Attorney General BY: RUPP, BAASE, PFALZGRAF & CUNNINGHAM LLC, LISA A. COPPOLA, ESQ.
Reneé Forgensi Minarik, J.
Claimant Kathleen Weese is the mother and natural guardian of Jeremy Weese. On February 21, 1997, when Jeremy Weese was 14 years old, he visited a 17 or 18 year old friend in Stanley, New York. The two boys had intended to walk to another friend's house, but on the way decided to stop and observe a nearby construction site. The boys' intent that day was to go to the construction site where the State had removed a railroad bridge over Route 245 in the Town of Stanley. The bridge had been removed several months earlier. The boys had been to this site before, prior to the bridge being taken down, and wanted to go "check out" the site now that the bridge was gone.
They approached the site from the old entrance to the bridge and encountered a steel guardrail barricade with a red diamond warning sign posted just behind the barricade. They bypassed this barricade and sign, and then came to an orange, plastic construction fence. They went over this. Then, while attempting to climb down from the top of the hill above the site to sit on the top of the bridge abutment over the road, Jeremy lost his balance and fell approximately 15 feet to the road below and sustained serious injuries.
Claimant then commenced this action, alleging that Defendant was negligent in: 1) creating a hazardous condition; 2) failing to erect an adequate fence or barricade at the hazard; and 3) failing to adequately warn of the danger.
In its motion papers, Defendant concedes that the incident occurred, but asserts that the State may not be held liable for Claimant's injuries. Defendant seeks summary judgment based upon the following reasons: 1) Claimant failed to establish a prima facie case of negligence; 2) Defendant is entitled to qualified immunity because its plan for removal of the bridge and the safety measures it involved were developed upon an adequate study and had a reasonable basis; and 3) General Obligations Law 9-103 (the "recreational use" statute) insulates the State from liability.
Claimant has filed a cross-motion for partial summary judgment on the issue of liability, claiming that there is no question of fact relating to the Defendant's liability for ...