We respectfully dissent from the majority’s statement since, in our view, claimant should have been awarded a verdict against the State on the issue of liability.
*416Central to our disagreement with the result reached by the majority is our view that section 9-103 of the General Obligations Law is not relevant to this case. We reach this conclusion not on the basis of claimant’s argument that this statute does not apply to public landowners (see Cutway v State of New York, 89 AD2d 406 [decided herewith]; Wight v State of New York, 93 Misc 2d 560), but on the narrower ground that it was never raised by either party at any time during the trial and is advanced by the State in support of its position for the first time in its brief on this appeal. As such, it is our view that the parties have consented by their conduct to have the State’s liability tried on the “reasonable care” standard enunciated by the Court of Appeals in Basso v Miller (40 NY2d 233). “[Parties to a civil litigation, in the absence of a strong countervailing public policy, may consent, formally or by their conduct, to the law to be applied”. (Martin v City of Cohoes, 37 NY2d 162, 165.)
We see no violation of public policy in allowing the State to voluntarily subject itself to a standard of care which, although concededly more favorable to a claimant trying to collect an award for damages sustained, would generally be applicable to the State if the facts involved did not bring the claim within the limited purview of section 9-103 of the General Obligations Law.
While there are distinctions between this case and Martin v City of Cohoes (supra), which involved a woman who sued the City of Cohoes for injuries sustained when her shoe became caught in a public sidewalk, they are without legal significance and the above-quoted principle established in that case controls here. In Martin, the parties erroneously tried the case on the assumption that the city had to have , actual rather than written notice of the alleged defect in order for the plaintiff to prevail. The parties in the instant claim, as evidenced by their pleadings, proof and arguments to the trial court, proceeded on the mistaken legal premise that the State could be liable for damages caused merely by its failure to use reasonable care under all the circumstances, rather than the lesser duty imposed on owners of land kept open for recreational purposes (General Obligations Law, § 9-103). In both cases, how*417ever, the mistake was made on a legal principle involving an essential element of the injured party’s case (i.e., compliance with the applicable prior notice ordinance in Martin and the State’s duty of care to claimant in the instant case). We would, therefore, bind the parties to the legal theory upon which they tried the lawsuit. Absent any countervailing public policy, this result preserves the integrity of the trial and prevents one party from making those proceedings a mockery by injecting a new legal theory into the case for the first time on appeal.*
Having determined the standard to be applied to the State’s conduct, the question remains as to whether the State exercised reasonable care under all of the circumstances. Since the case was tried without a jury, this court may weigh the evidence and grant the judgment which should have been granted by the trial court (Shipman v Words of Power Missionary Enterprises, 54 AD2d 1052). We disagree with the conclusion reached by the Court of Claims that the State was not negligent in the care and maintenance of the pedestrian bridge involved in claimant’s accident. It is uncontradicted that the State was aware that a vehicle had struck the cable barring vehicular traffic on the bridge some 10 months prior to claimant’s accident. Also uncontradicted is the fact that the vehicular incident involving the bridge caused one of the metal uprights at the end of the bridge to bend, and that at least three State employees examined the post at various times prior to claimant’s accident. Each examination consisted solely of shaking the damaged post by hand to see whether it was still sturdy.
Under these circumstances and in view of the fact that it was certainly foreseeable that a person hiking through a *418State campsite would attempt to sit on a railing along a pedestrian bridge, we do not share the trial court’s view that the State, acting through its employees, acted reasonably in failing to repair the damaged upright on the basis of these “shake tests” which revealed that the post was still secure. As evidenced by the ultimate collapse of one of the horizontal rails when sat upon by claimant, the structure was damaged and a more thorough examination was required in order to determine whether the bridge remained safe for all of its reasonably intended purposes. Accordingly, we would reverse the judgment of the Court of Claims dismissing the claim and render judgment on the issue of liability in favor of claimant.
Levine and Weiss, JJ., concur with Casey, J.; Mahoney, P. J., and Kane, J., dissent and vote to reverse in an opinion by Mahoney, P. J.
Judgment affirmed, without costs.
The majority contends that since the standard of care governing land used for recreational purposes is imposed by statute, the trial court was bound to take judicial notice of it. This very argument, however, was the basis for the Appellate Division’s reversal of the trial court in Martin v City of Cohoes (44 AD2d 864), an argument which was impliedly rejected by the Court of Appeals in its ultimate decision reversing the Appellate Division and upholding the actions of the trial court (Martin v City of Cohoes, 37 NY2d 162). Nor can a distinction be made between the local law involved in Martin and the statute involved in the instant case since the judicial notice statute, by its very terms, applies with equal effect to both (CPLR 4511, subd [a]).