Harrington v. State
| Decision Date | 30 April 1962 |
| Docket Number | No. 36129,36129 |
| Citation | 227 N.Y.S.2d 467,33 Misc.2d 598 |
| Parties | Robert HARRINGTON, Claimant, v. The STATE of New York. Claim |
| Court | New York Court of Claims |
McClung, Peters & Simon, Albany, by Thomas J. Burke, Albany, and Robert E. Simon, Albany, of counsel, for claimant.
Louis J. Lefkowitz, Atty. Gen., by Edward R. Murphy, Asst. Atty. Gen., of counsel, for the State.
This claim asks damages for serious injuries received by the claimant when his head struck a submerged rock located in the bathing area of Hearthstone State Park on Lake George, Warren County, New York.
Claimant had gone to the pool with three friends for a picnic and swim on Sunday, June 29, 1958. A service charge of fifty cents was paid which is the ordinary cost for each car admitted to the park.
Following the picnic the claimant, who had been to this bathing area before, decided to go swimming. He waded out from the sandy beach for about 20 or 25 feet where the water was waist high and ducked under, then took a shallow dive and his head hit a circular rock about 18 inches in diameter and 12 inches above the sandy bottom of the lake. He attempted to move the rock with his foot but was unable to accomplish the removal. Prior to the dive he did not see the rock which was submerged in front of him because the waves caused the water to be rough and choppy.
He returned to his picnic table to rest because his back hurt. Shortly thereafter he became dizzy and went home. The following day he went to the doctor and X rays revealed a fracture of the seventh cervical vertebra. He was hospitalized for about six weeks and wore a neck brace until October 10, 1958. He returned to his regular employment on September 4, 1958, although he was partially disabled.
The bathing area was a rather small sandy beach and a gradual slope from shore to the deeper area for swimming. The State provides life guards at the beach who patrol the underwater areas for obstructions and debris. Although the area of the accident was examined, no one ever encountered this large rock until claimant's accident. The rock was still submerged in October, 1958.
Claimant was an invitee and the State owed the duty of reasonable care to him when he went into the water and that care must extend to a common way for entering the water by shallow dives.
The Court finds that there was a dangerous obstruction within the area designated for swimming and that the failure to remove the rock, or in the...
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