Fritz v. State

Appellate Division of the Supreme Court of New York

Fritz v. State

42 A.D.2d 649, 345 N.Y.S.2d 221, 1973 N.Y. App. Div. LEXIS 4038

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 27, 1973

DocketClaim No. 50190

StatusPublished

This text of 42 A.D.2d 649 (Fritz v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fritz v. State, 42 A.D.2d 649, 345 N.Y.S.2d 221, 1973 N.Y. App. Div. LEXIS 4038 (N.Y. Ct. App. 1973).

Pincite

Opinion

— Appeal from a judgment of the Court of Claims which dismissed claimants’ claim for personal injuries. On July 11, 1968 Jane Fritz sustained injuries when a board in a dock broke while she was alighting some two feet from her cabin cruiser with a mattress under each arm at a State Campsite on an island in Lake George. After a trial, the Trial Judge concluded that “based on all of the proof and testimony, the Court finds that the State, its agents and employees, had acted in a reasonable and prudent manner insofar as the construction, maintenance and installation of this dock facility prior to the accident, and that this occurrence was not foreseeable, under these circumstances. There is nothing in this record to sustain a finding that the State had any prior notice either constructive or actual as to a defective condition of this board.” We concur on the basis of the instant record. There is absolutely no acceptable proof that the board was, in fact, rotten or decayed as claimants suggest. Nor is there proof that the dock was improperly constructed, the very most that claimants established is that the preservative used in treating the wood should have contained a “ fungicide ” and that “ pressure treated ” western hemlock or fir would have made a “ better ” dock than the rough native white pine utilized by the State. Nor is there any proof that the State’s maintenance or inspection of the dock was improper. It would be an impossible task for the State to probe every inch of every board for rot or decay on the hundreds of State maintained docks on Lake George. Finally, there is absolutely no proof that the State had any notice, actual or constructive, of the condition. As the trial court noted, thousands of people used this facility each year and noticed no observable defect or even questionable condition, nor was there any such incidents ever reported at any other similar facility. Accordingly, the judgment of the trial court must be affirmed (see, e.g., Harrow v. State of New York, 21 A D 2d 571, affd. 17 N Y 2d 619). Judgment affirmed, without costs. Greenblott, J. P., Cooke, Kane, Main and Reynolds, JJ., concur.

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— Appeal from a judgment of the Court of Claims which dismissed claimants’ claim for personal injuries. On July 11, 1968 Jane Fritz sustained injuries when a board in a dock broke while she was alighting some two feet from her cabin cruiser with a mattress under each arm at a State Campsite on an island in Lake George. After a trial, the Trial Judge concluded that “based on all of the proof and testimony, the Court finds that the State, its agents and employees, had acted in a reasonable and prudent manner insofar as the construction, maintenance and installation of this dock facility prior to the accident, and that this occurrence was not foreseeable, under these circumstances. There is nothing in this record to sustain a finding that the State had any prior notice either constructive or actual as to a defective condition of this board.” We concur on the basis of the instant record. There is absolutely no acceptable proof that the board was, in fact, rotten or decayed as claimants suggest. Nor is there proof that the dock was improperly constructed, the very most that claimants established is that the preservative used in treating the wood should have contained a “ fungicide ” and that “ pressure treated ” western hemlock or fir would have made a “ better ” dock than the rough native white pine utilized by the State. Nor is there any proof that the State’s maintenance or inspection of the dock was improper. It would be an impossible task for the State to probe every inch of every board for rot or decay on the hundreds of State maintained docks on Lake George. Finally, there is absolutely no proof that the State had any notice, actual or constructive, of the condition. As the trial court noted, thousands of people used this facility each year and noticed no observable defect or even questionable condition, nor was there any such incidents ever reported at any other similar facility. Accordingly, the judgment of the trial court must be affirmed (see, e.g., Harrow v. State of New York, 21 A D 2d 571, affd. 17 N Y 2d 619). Judgment affirmed, without costs. Greenblott, J. P., Cooke, Kane, Main and Reynolds, JJ., concur.

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Bluebook (online)

42 A.D.2d 649, 345 N.Y.S.2d 221, 1973 N.Y. App. Div. LEXIS 4038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fritz-v-state-nyappdiv-1973.