Brown v. U.S.

• Decision Date: 01 October 2009
• Docket Number: No. 04 CV 3938(CLP).,04 CV 3938(CLP).
• Citation: 661 F.Supp.2d 341
• Parties: Robert BROWN, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

661 F.Supp.2d 341

Robert BROWN, Plaintiff, v. UNITED STATES of America, Defendant.

No. 04 CV 3938(CLP).

United States District Court, E.D. New York.

October 1, 2009.

COPYRIGHT MATERIAL OMITTED

Mark J. Rayo, Rayo & Fontanelli, P.C., Brooklyn, NY, for Plaintiff.

Kevan Cleary, United States Attorney's Office, Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

CHERYL L. POLLAK, United States Magistrate Judge.

On September 13, 2004, plaintiff Robert Brown filed this action against the United States of America (the "government"), pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671-80 ("FTCA"), alleging that the government's negligence in operating, controlling, and managing the beach at Jacob Riis Park ("Riis Park") caused plaintiff to suffer serious injuries during a diving accident on July 26, 2003. On September 19, 2006, the parties consented to the undersigned for all purposes including entry of judgment. On December 12, 2006, the government moved for summary judgment, seeking to dismiss plaintiff's claims in their entirety, arguing that: (1) under New York law, the government had no duty to warn of the presence of sandbars on the ocean floor; and (2) even assuming the existence of such a duty, the government's failure to warn was not the sole, proximate cause of plaintiff's injuries. (See Def.'s Mem. at 2, 11-13). The Court denied the government's motion.

Following denial of the motion, the parties proceeded to trial before the undersigned, commencing on July 14, 2008. The parties thereafter submitted post-trial briefs addressing various legal and factual disputes. Having heard the testimony of the witnesses and reviewed the parties' respective submissions, the Court finds in favor of defendant.

FACTUAL FINDINGS

It is undisputed that Riis Park, located in the Jamaica Bay Unit of Gateway National Recreation Area in Queens, New York, is owned and operated by the United States. (Tr.¹ at 623). The park fronts the Atlantic Ocean and is administered by the National Park Service ("NPS" or "Park Service"), a unit of the United States Department of the Interior. (Id. at 885-904; Def.'s Mem.² at 3; Pl.'s 56.1 Stmnt.³ ¶ 1; Def.'s 56.1 Stmnt.⁴ ¶ 3).⁵

At trial, plaintiff Robert Brown testified that he was born on June 17, 1974, and that in July of 2003, he was attending school to become an Emergency Medical Technician ("EMT"). (Tr. at 43). On July 26, 2003, he and his girlfriend,⁶ Michelle Berrio, visited the beach at Riis Park, arriving around 12:00 to 12:30 in the afternoon.⁷ (Id. at 43-44). Upon arriving at Riis Beach, the couple set up a blanket, approximately 200 feet from the water,⁸ in the middle of the beach, between the two jetties, one a wooden jetty and one made of "concrete rocks." (Id. at 43-44, 77-78). At the time, there was a lifeguard on duty there, seated in a raised chair. (Id. at 44, 78). According to plaintiff, the day was a "beautiful beach [d]ay," the waves were "friendly," and there was a nice breeze. (Id. at 51-52). The beach was crowded and there were a lot of people in the water. (Id. at 63, 68; see also Tr. at 110). After sitting on the beach for an hour, plaintiff and Ms. Berrio walked straight ahead toward the water where they stood at the shore. (Id. at 44-45, 47, 78). Plaintiff invited Ms. Berrio to go into the water with him, but she refused because the water was cold. (Id. at 45, 47, 79). After she refused, plaintiff "just took off," running a "little to the right but straight ahead" into the water to get over the initial shock of the temperature. (Id.) Ms. Berrio did not run in with him at that time. (Id. at 64-65). When he left Ms. Berrio to enter the water, she was approximately 25 steps from the edge. (Id. at 64). He testified that there were other people on the beach and in the water when he ran into the water. (Id.)

Mr. Brown admitted that he knew how to swim; indeed, on cross-examination, he testified that he had taken a three week course of swimming lessons while in high school, but the lessons were in a swimming pool. (Id. at 56-57, 69). He estimated that he had been to the beach approximately ten times, "at least." (Id. at 47). He further testified that although he had probably been to Riis Park Beach when he was "real young,"⁹ he had not been there while an adult. (Id. at 46, 59). He testified that he had gone to Rockaway Beach, once or twice a summer, between the ages of 7 and 15. (Id. at 16, 58).

As he took off running toward the water, plaintiff saw a man ten to fifteen feet in front of him, so he swerved out of the man's way to avoid bumping into him. (Id. at 47). He testified that he ran approximately 20 feet into the water, at a slight angle to the right, where the water was "up to my knees midthigh" and "just jumped in." (Id. at 79, 129-30; see also Tr. at 142-43). He testified that he executed a running dive, face down, until he was "submerged, took one stroke ... [and] hit my head on, you know, and my head jumped back." (Id. at 47-48). During this testimony, plaintiff gestured, indicating that he took a breast stroke with his hands in front going to the sides. (Id. at 48). In describing the way he dove into the water, plaintiff testified that "as the water was slowly increasing up to, up to my knees, midthigh,¹⁰ I just laid down sort of a dive, like a little dive, not no [sic] swan dive ... I just went parallel with the water to cut the water, and once I went into the water you know I made my stroke." (Id.) He testified that when making the stroke, his body "was submerged, I was underwater." (Id.) After he hit something, his body went limp and he had no "function of my lower half extremities and my upper body was starting to, like deplete." (Id. at 49). When asked to describe what he hit, he was not specific except to say that it was "soft but firm." (Id. at 56). He testified that it seemed like he was underwater for an "eternity" because he could not get to the surface. (Id. at 49). Eventually, he reached the top but could not get his face out of the water. (Id.) He was, however, "flailing with [his] hands." (Id. at 50).

According to Ms. Berrio, plaintiff ran about 20 feet or so into the water before he dove forward. (Id. at 130). She described his hands being out in front of him in a diving position at the time he dove forward and cut through the water. (Id. at 81). When he dove in, she could still see the blue shorts he was wearing but she could not remember exactly how much of his shorts she could see. (Id. at 82). She testified that he "dove in, cut through the water and he disappeared for a while and it took a little too long," but she believed that he was swimming underwater. (Id. at 79). According to Ms. Berrio, plaintiff disappeared for 20 to 30 seconds, and then came out of the water a little further from where he dove in; she expected that he would have surfaced "a lot further out" because she thought he was swimming. (Id. at 82). When he came up, his arms were "flailing," "doing a butterfly almost." (Id. at 79-80). She testified that he couldn't pick his head up and would not stand up so she and another man right by her in the water darted out towards him. (Id. at 80).¹¹

Ms. Berrio testified that as she ran out to plaintiff, she noticed that the water got a little deeper and then when she got to plaintiff, the water was "a lot more shallow and it was like a slope, like I had to climb up in, you know, like your feet are digging in the sand," (Id. at 83), Ms. Berrio testified that at its deepest point, the water was around her "legs, my hips" and that when she reached the plaintiff, the water was at the level of her "knees towards the calf or so," "between my knees and my calf." (Id. at 83-84). She described it "like a little hill;" she testified that she had to dig in her feet in order to get up the slope. (Id. at 100). When asked to describe how high the sandbar was she testified that it was approximately 22 inches. (Id. at 131-32). This contradicted the statement contained in her affidavit that said it was "`at least three feet higher than the bottom.'" (Id. at 133). Specifically, she stated: "`The area I was standing on when I reached Robert was atop this slope of sand that was three feet higher than the bottom a few feet away and not rock, wood or another hard object.'" (Id. at 134). She testified that plaintiff could not have hit the bottom "because he didn't like, dive off of anything. He didn't dive down. He like, dove parallel. He cut through the water." (Id. at 139).

According to plaintiff, there were no warning signs at the beach telling people not to dive and no warnings regarding the existence of a sandbar. (Id. at 54). Plaintiff also testified that the lifeguard never said anything about sandbars or warned against diving in the water. (Id. at 100). Ms. Berrio confirmed that she did not see any warning signs about diving into the water or about sandbars. (Id.) According to plaintiff, he was not aware of the risk of hitting his head on a sandbar, and he had never heard of that happening before the accident. (Id. at 55). He further testified that he did not even know sandbars existed. (Id.) On cross-examination, plaintiff conceded that when swimming at Rockaway Beach, the sand underneath the waves was not always flat and he conceded that he had experienced the waves pulling the sand out from under his feet and sinking a bit. (Id. at 58-59).

Ms. Berrio testified that when plaintiff was pulled from the water, she called plaintiffs name, but he "was out, he was blue" and he had a red dot in the middle of his forehead, like a bruise. (Id. at 85). Plaintiff, on the other hand, testified that upon being pulled from the water, he told Ms. Berrio that he was okay, but he "was slowly going to like a sleepy mode." (Id.) He testified that he could not stand or hold himself up; "I was just laying there." (Id. at 51). After some time, other lifeguards arrived. (Id. at 53). The lifeguard, who Ms. Berrio described as a "teenag...