Commercial litigators in metropolitan areas face a general and familiar panoply of laws and precedents applicable to business disputes. But, as a recent case illustrates, our suburban and upstate counterparts often encounter an entirely different array of statutes and case law applicable to tort claims against a municipality.

Douglas Soffey sued the Town of Chester to recover damages for personal injuries he sustained in an incident that occurred on June 1, 2016, at approximately 8:00 PM, at the downstream side of a culvert pipe located under Hardscrabble Road in the Town of Chester, Warren County. Soffey had been fishing with friends on Bird Pond, a privately owned water body. He was in a canoe with one of his friends and his dog. When the friend and dog jumped out of the canoe, the canoe tipped. Soffey fell out of the canoe, and his right leg struck the end of the culvert pipe, causing a laceration to his lower right leg. Soffey was familiar with the area of the culvert, having used the area on numerous occasions to access Bird Pond. He had launched his canoe next to the culvert pipe and had returned to the same location to exit the water with the canoe.

Soffey alleged that the culvert was hazardous and dangerous and that the incident occurred due to the negligence of the Town. Specifically, he contended that the Town installed a metal culvert pipe with “razor-sharp” edges. Failed to furnish any warnings concerning the hazards of contact with the culvert or pipe. And maintained such a hazardous condition when the Town knew, or should have known, of the hazard. Soffey claimed that the Town caused and created the dangerous condition by installing the culvert with the defective condition, maintaining the condition, and failing to safeguard or warn against the condition.

The Town moved for summary judgment dismissing Soffey’s complaint.

The Town maintained that it was entitled to summary judgment as it did not receive prior written notice of any allegedly defective, unsafe, or dangerous condition of the culvert, and the affirmative negligence exception to the prior written notice rule did not apply. The Town relied upon Town Law § 65-a, which provides that an action for personal injuries against a town due to an alleged defective, unsafe, or dangerous condition of a culvert may not be maintained unless written notice of such alleged condition was actually given to the town clerk or town superintendent of highways. The Town also argued that, at best, the culvert deteriorated over the 30 years that elapsed between its installation and the incident, and the exception to the prior written notice requirement for a condition created by the municipality did not apply.

In addition, the Town contended that it was entitled to summary judgment pursuant to General Obligations Law § 9-103, which shields a property owner or occupant from liability for ordinary negligence where members of the public are permitted to enter the property to engage in certain recreational activities.

Soffey contended that the facts of the case compelled the Court to apply the exception to the notice rule where the hazard is caused by the affirmative negligence of the municipality. He alleged that the Town was negligent in installing a steel galvanized culvert in an area which was a launching site used by fisherman and hunters to access Bird Pond. And claimed that the unprotected open (downstream) end of the culvert where the incident occurred was a hazard to anyone in the water or on the land immediately adjacent to the culvert at that location and a simple grate or guard could have prevented the accident. He further alleged, based upon the affidavit of a metallurgist, that the culvert pipe was cut, which produced sharp edges and, thus, the culvert was capable of causing injury at the time it was installed and constituted a continuing hazard.

Soffey contended that General Obligations Law § 9-103 was not applicable because no purpose would be served by application of the statute.

The Court first addressed the issue of whether the Town was entitled to immunity pursuant to the G.O.L.

G.O.L § 9-103 grants immunity for ordinary negligence to landowners who permit members of the public to come on their property to engage in several enumerated recreational activities, including fishing and canoeing. Exceptions to the protection provided by the statute exist for facilities supervised by the municipality and “for willful or malicious failure to guard, or to warn against, a dangerous condition, . . .” 

The Town argued that it was entitled to the protection of the statute because Soffey was engaged in two of the enumerated recreational activities, and neither of the exceptions applied. Specifically, the Town asserted it did not operate, supervise or maintain Bird Pond or the purported access which Soffey and his friends used. Further, there was no evidence, nor do Sofffey even allege, that the Town engaged in any willful or malicious failure to warn.

The Town met its burden to demonstrate that it was immune from liability in the action pursuant to G.O.L. § 9-103 and was entitled to judgment as a matter of law. In opposition, Soffey failed to meet his burden to raise a material issue of fact. The Town was entitled to summary judgment dismissing the complaint.

Even assuming, arguendo, it was not afforded immunity under the G.O.L., the Town was entitled to summary judgment on the remaining ground for relief asserted by Soffey, lack of prior written notice.

A municipality with a prior written notice statute cannot be held liable for damages resulting from an injury arising from a defective or dangerous condition on its roadways, bridges, culverts, or sidewalks without prior written notice of the allegedly defective or dangerous condition.

Thus, pursuant to Town Law § 65-a, Soffey could not maintain his action unless written notice of the alleged defective, unsafe or dangerous condition of the culvert was actually given to the Town Clerk or Town Superintendent of Highways.

It was uncontested that the Town never received any notice of an alleged defective, unsafe, and/or dangerous condition of the culvert. The Town submitted the affidavits of Gary Clark, the former Highway Superintendent, who oversaw the installation of the culvert, and Mindy Conway, the Town Clerk for the Town of Chester.

Clark averred that he did not receive written notice regarding the culvert. Conway averred that the office of the Town Clerk maintained written notices which had been received pursuant to Town Law § 65-a for a period in excess of 25 years. And represented that she searched the files maintained by the Town Clerk’s office, and her review did not reveal any written notice of an allegedly defective, dangerous, and/or unsafe condition of the culvert which was received by the office directly or from the Town Superintendent of Highways prior to Soffey’s accident. Through those affidavits, the Town satisfied its burden to demonstrate lack of prior written notice.

Because the Town established that it lacked prior written notice, the burden shifts to Soffey to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality. The affirmative negligence exception was limited to work by the municipality that immediately resulted in the existence of a dangerous condition.

Soffey offered the affidavits of himself and the two friends with whom he had been fishing just prior to the accident. In their affidavits, they described the edge of the culvert as “blade sharp” and “jagged and extremely sharp . . . razor-sharp,” respectively. With respect to their claim that the Town affirmatively created the alleged hazardous condition, Soffey offered an affidavit of T. Rao Tipirneni, a metallurgical engineer, who averred he was told that the culvert was composed of galvanized steel and opined, inter alia, that based upon his examination of (undated) photographs of the culvert, “. . . the culvert appears to be of galvanized steel, showing an end that was probably cut after galvanization” But Tipirneni did not personally inspect the culvert or conduct any testing.

Tipirneni’s opinion was countered by the affidavit in which Clark averved that the culvert pipe was installed approximately 30 years ago; the culvert pipe was specifically ordered for the length required and was delivered by the manufacturer pre-cut, with rounded edges; the Town did not cut the end of the culvert pipe; and the end of the culvert pipe had rounded edges when it was installed.

Tipirneni’s conclusion was speculative and was insufficient to raise a material issue of fact with respect to any alleged affirmative negligence on the part of the Town, particularly in the face of Clark’s affidavits.

The Town demonstrated that it was immune from liability, pursuant to General Obligations Law § 9-103. It was undisputed that, at the time of the accident, Soffey was engaged in recreational activities enumerated in the statute. Assuming, arguendo, the Town was not afforded immunity under General Obligations Law § 9-103, the Town adequately established it did not receive the requisite notice under Town Law § 65-a, and Soffey failed to establish that any exception to the rule applied.

The Town met its initial burden of establishing prima facie entitlement to judgment as a matter of law, shifting the burden to Soffey to demonstrate a triable issue of fact. Even viewing the evidence in a light most favorable to Soffey, the Court found that Soffey failed to meet that burden. The Town was entitled to summary judgment. Soffey’s complaint was dismissed.