Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

O'Neill v. United States

February 19, 2009

ESTHER COLENE O'NEILL, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
STATE OF NEW YORK, THIRD-PARTY DEFENDANT.



SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. BACKGROUND

Plaintiff asserts a negligence claim under the Federal Tort Claims Act, alleging that the step-down on the pier where she fell constituted a "hazardous, defective and out of repair condition . . . affirmatively created by the [D]efendant . . . and had existed for such an extended period of time that the [D]efendant knew or with reasonable inspection should have known of it." See Complaint at ¶ 7.*fn1 Specifically, Plaintiff alleges that, on June 15, 2003, due to Defendant's negligence, she fell and sustained injuries to her left leg and left ankle at one of the step-downs on the east pier, which was approximately four or five inches in height and not demarcated by a change in the pier's color or composition.

Defendant owns a breakwater and two piers along the shoreline of state-owned Fair Haven Beach Park in Little Sodus Bay Harbor, New York. Defendant constructed the east pier and its walking surface, where Plaintiff fell, so that it had height variations which required walkers to step up and down.

The Court held a bench trial to resolve this matter on December 4, 2007. At that trial, the following people testified: (1) Victor Kotwicki, United States Army Corps of Engineers, Chief of the Real Estate Division for the Detroit, Buffalo and Chicago Districts; (2) William Townsend, Retired Supervisory Civil Engineer for the United States Army Corps of Engineers; (3) Joseph Keeler, Park Manager at Fairhaven Beach State Park; (4) Erin Hill, Plaintiff's daughter; and (5) Plaintiff.

The following constitute the Court's findings of facts and conclusions of law as Rule 52(a) of the Federal Rules of Civil Procedure requires.

II. DISCUSSION

A. Findings of Fact

1. The Secretary of the United States Army and the State of New York Office of Parks, Recreation, and Historic Preservation entered into a Park and Recreation Lease for the Fairhaven Beach State Park at Little Sodus Bay on May 2, 2002.

2. There is an East Pier, a West Pier, and an East Breakwater attached to the East Pier at Little Sodus Bay. The East Breakwater is 1,600 feet long. The East Pier is 1,810 feet long. The East Pier is approximately twenty-two feet wide.

3. The configuration of the East Pier was the same in 2003 as it was in 1974.

4. There are a number of elevation changes on the East Pier as you go out from the beginning. The elevations are approximately the same height, between 6/10s and 9/10s of a foot, which is the average height of a step.

5. The changes in elevation are not due to deterioration; the steps were designed that way.

6. During the time that Mr. Keeler was the Park Manager at Fairhaven Beach State Park, he was not aware of any falls, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.