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State found liable for hazard in unofficial beach path

Officer paralyzed when ATV hits fence stake

By Natalie White Contributing writer
New York state recently agreed to pay $14.8 million to a police officer who was paralyzed while driving an ATV along an unofficial pathway behind Fire Island beach.
The case turned on the question of who should be held responsible – the owner of the land or the intruder – when a person is injured on a pathway that is not open to the public.
Judge James Lack found the state 100 percent liable for the accident, which prompted the state to settle the suit for $14.8 million.
The plaintiff’s attorney, Daniel Buttafuoco, said he believes it is the largest settlement in state history for a single person in a personal injury case. Seven million of the settlement was paid in September and the rest will come in monthly installments.
The path was in Robert Moses State Park on the western end of Fire Island, off the southern shore of Long Island.
Short cut to agony
After finishing his shift in May 2002, police officer Scott Brumber decided to avoid the Memorial Day crowds by zipping his all-terrain vehicle down the short-cut path, known locally as the “Coast Guard cut.”
The ATV snagged on a metal pipe that was sticking up from the sandy roadway, causing the vehicle to flip in the air and land on Brumber, crushing his spine. The accident left Brumber, who has a wife and three children, confined to a wheelchair.
The state contended that Brumber had no right to be driving on the path and that he was therefore responsible for his own injuries. Brumber’s attorney countered that the state, which owns the area, was responsible for keeping the path clear of dangers even though it was not open to the public.
“Yes, it was not an official path, but the state was negligent in not closing it off,” said Buttafuoco. “They just looked the other way.”
The plaintiff’s team used aerial photographs and live testimony to show that the short cut path had been in use for many years when the accident happened on May 27, 2002. Witnesses testified that several government agencies, particularly the Coast Guard, used the path on a regular basis.
Buttafuoco also called witnesses who testified that the stake was leftover from a snow fence that had been installed by the state several years prior to the accident but not maintained.
“Not only did they neglect the path, but they created the hazard,” he said.
Buttafuoco emphasized that although the state knew the path was used by various agencies, it never bothered to post warning signs or notify the agencies of the potential hazards.
“They never told anyone not to use it. They never put up signs or tried to find a way to close it off,” Buttafuoco said. “Basically they just kind of winked at it. What they should have done is make sure the path was safe and get all the crap out of there. If they had pulled this stake, this accident never would have happened.”
He described the crash as a “freak accident.”
“If you were walking you probably would have seen the stake and if you didn’t you might have tripped on it,” he said. “But on a four-wheel motorcycle you are never going to see the stake.”
Buttafuoco said that he would normally prefer trying this case before a jury, but as the trial progressed he realized that the knowledge of the judge worked in his favor.
“Typically you would want a jury for this kind of case, but in the Court of Claims in New York there are no juries, only bench trials,” Buttafuoco said. “In the end I think there were a lot of subtleties that typically a jury would not appreciate.”
Plaintiffs’ attorneys: Daniel P. Buttafuoco and James S. McCarthy of Daniel P. Buttafuoco & Associates in Flushing, N.Y.; Thomas Spreer of the Law Offices of Thomas Spreer in Babylon, N.Y.
Defense attorney: John Shields of the Office of New York State Attorney General Eliot Spitzer in New York.
The case: Brumber v. State of New York; September 2006; New York Court of Claims; Judge James J. Lack.

Daniel P. Buttafuoco
Daniel P. Buttafuoco & Associates