Piche v. State of New York

Citation202 Misc. 84
PartiesRoger T. Piche, as Administrator of The Estate of Teddy Piche, Deceased, Claimant,<BR>v.<BR>State of New York, Defendant. (Claim No. 29984.)
Decision Date02 August 1951
CourtNew York Court of Claims

Harry A. Reoux, Elihu R. Geraghty and John J. Bennett for claimant.

Nathaniel L. Goldstein, Attorney-General (Edward R. Murphy of counsel), for defendant.

YOUNG, J.

East Brook, in Warren County, New York, flows northward and empties into the south end of Lake George. East of East Brook the land bordering the lake is owned by Benjamin C. Green. In December, 1946, and by virtue of the authority of section 12 of chapter 300 of the Laws of 1946, the State of New York purchased the land bordering the lake and west of the east boundary of East Brook for a park and beach development. Hence the State's property includes the entire channel of the brook and the land west of it. All of the land lying beneath the waters of Lake George is owned by the State of New York. (Schneider v. Village of Lake George, 254 App. Div. 909, affd. 280 N.Y. 507.)

On both the State's and Green's land there is a beach rimming the south end of the lake and extending out into its waters for some distance in a very gradual decline, except at the outlet of East Brook. There, the swift flow of water from the brook has dug a channel into the lake making a sudden drop-off of some depth from the bed of the lake to the bottom of the channel.

At about 3 o'clock in the afternoon of July 4, 1949, claimant's intestate, Teddy Piche, aged five years and nine months, went to the beach accompanied by his parents. The family ensconced itself on the sand a few feet east of the East Brook outlet, i.e., on Green's land. A short time later, Teddy was missing. His body was found soon after in the drop-off made by the channel of East Brook and about twenty-five feet into the lake from the mouth of the East Brook outlet. It is a reasonable assumption from the evidence that the boy waded into the water of the lake from Green's land and, after having walked out into the shallow water a few feet, stepped into the drop-off and drowned.

Given these facts, and the further one that the State ought to have had knowledge of the condition of the channel, if it did not actually, the State denies any liability for the drowning on the theory that this land was never opened to the public for use as a bathing beach and that bathers on it were at best licensees to whom no duty was owed other than to refrain from any affirmative act of negligence. The State, in its brief, cites many cogent cases in support of this theory which are all very compelling as being definitive of the duty owed licensees but which the court feels are not applicable in this instance, the decedent being, in its judgment, an invitee.

If the beach had been opened to the public, and was in fact, if not in name, a public park, the State is liable. (Roth v. State of New York, 262 App. Div. 370.) The State's argument that it had not been officially opened was completely demolished by the introduction into evidence of a contract between the State and one John Palmer. This contract was let out in 1947 as a result of advertising for bids in the public press by the State and it was renewed in 1948 and 1949. The contract gave to Palmer "the exclusive privilege of selling refreshments such as ice cream, candy, soft drinks, light lunches, etc., and souvenirs on the property commonly known as the Lake George Beach at the southerly end of Lake George". The contract further provided that Palmer could if he desired "provide change rooms and basket storage facilities for the convenience of the bathers at a fee to be approved" by the State.

The fact that the State let out this concession patently designed, not only to provide income for the State, but also to furnish conveniences for the bathers is certainly conclusive that the State considered the beach open to the public as early as 1947. There is no evidence that the public was ever led to believe otherwise.

Apart from this consideration of the concession contract, the court is persuaded to the opinion that the claimant's intestate was an invitee.

People flocked to this beach to bathe, with thousands being there in the summer of 1949 and thousands each year for many years before. This the State was aware of, and from the time of the State's ownership it did nothing to prevent it. The attractions of the beach are so obvious that a mere glance at the property, without the crowd of bathers, would indicate its best use. The property was purchased by the State for a public bathing beach. Bearing these facts in mind, let us now consider a number of the cases cited by the State.

In Walsh v. Fitchburg R. R. Co. (145 N.Y. 301) a child was injured while on railroad premises across which the public was accustomed to travel. In Fox v. Warner-Quinlan Asphalt Co. (204 N.Y. 240) the public was accustomed to crossing the defendant's open field. A child, in crossing, fell into a sand and gravel pit and was injured. In Carbone v. Mackchil Realty Corp. (296 N.Y. 154) some boys were injured while climbing on an abandoned foundation wall from which the defendant owner of the premises had chased other children away on numerous occasions. In both Walker v. Bachman (268 N.Y. 294) and Simmons v. Poughkeepsie Sav. Bank (255 App. Div. 887) children were injured while playing on the premises of another with the landlord's acquiescence. In Morse v. Buffalo Tank Corp. (280 N.Y. 110) a child was burned when he and some other boys stole gas from a drip can on the defendant's property and threw it on a fire in a nearby street.

In none of these cases did the court hold the injured to be an invitee for the reason that the injured's presence on the property of another was at cross purposes with the use to which the land was put or was at least not in the furtherance of the landholder's business. This same holds true with Zaia v. Lalex Realty Corp. (287 N.Y. 689), Vaughan v. Transit Development Co. (222 N.Y. 79), and Sanders v. Rand Realty Corp. (241 App. Div. 408) all cited by the State.

The difference is well illustrated by Hall v. State of New York (173 Misc. 903). There the State built and maintained a dirt road to a Barge Canal lock and next to the road was a sign bidding "Visitors Welcome". The purpose for which visitors were welcomed was to view the lock which was unique. The decedent was killed when he slid off the road in his truck and into the canal. The court held that he was not an invitee because he was on the road for his own purposes and was not there within the limits of the State's invitation to see the lock.

The State has also cited a number of cases concerning death by drowning. In Maurizio v. State of New York (Claim No. 29099) decedent was swimming in the Barge Canal. In Breeze v. City of New York (275 N.Y. 528) decedent drowned in water accumulated in an excavation on the defendant's land. In Panunzio v. State of New York (266 App. Div. 9) decedent fell off a catwalk on the canal system. In Pendino v. State of New York (196 Misc. 184) a boy fell...

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4 cases
  • Herman v. State
    • United States
    • New York Supreme Court — Appellate Division
    • June 13, 1983
    ...of New York, 284 App.Div. 53, 130 N.Y.S.2d 39 Harrington v. State of New York, 33 Misc.2d 598, 227 N.Y.S.2d 467 Piche v. State of New York, 202 Misc. 84, 106 N.Y.S.2d 437 ). However, each of the cited cases involved a hazardous condition which was in a fixed location and which was therefore......
  • McGlyn v. Johnson
    • United States
    • New York Supreme Court
    • February 27, 1959
    ...reasonable care toward the invitee as to a condition of danger of which he is chargeable with constructive knowledge (Piche v. State, 202 Misc. 84, 106 N.Y.S.2d 437). Seaman urges several grounds for dismissal. He compares himself to the lessor of a car operated upon a highway at a place of......
  • Harrington v. State
    • United States
    • New York Court of Claims
    • April 30, 1962
    ...by the State. Roth v. State, 262 App.Div. 370, 29 N.Y.S.2d 442; Lawson v. State, 207 Misc. 542, 139 N.Y.S.2d 525; Piche v. State, 202 Misc. 84, 106 N.Y.S.2d 437; Violante v. State, Claim No. 35943, Court of Claims; Bensen v. Kristeller, 251 App.Div. 734, 297 N.Y.S. 703, affd. 277 N.Y. 561, ......
  • Wasserman v. JOHNROY PROPS.
    • United States
    • New York Supreme Court
    • May 22, 1952

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