Herman v. State

• Decision Date: 13 June 1983
• Citation: 94 A.D.2d 161,463 N.Y.S.2d 501
• Parties: Glen HERMAN, Respondent-Appellant, v. The STATE of New York, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 501

463 N.Y.S.2d 501

94 A.D.2d 161

Glen HERMAN, Respondent-Appellant, v. The STATE of New York, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

June 13, 1983.

Robert Abrams, Atty. Gen., Albany (Peter J. Dooley and Jeremiah Jochnowitz, Asst. Attys. Gen., New York City, of counsel), for appellant-respondent.

Leight, Weinstein & Gershuny, New York City (Michael J. Grenthal, New York City, of counsel; Michael J. Krakower, Jamaica, on brief), for respondent-appellant.

Before TITONE, J.P., and MANGANO, GIBBONS and WEINSTEIN, JJ.

TITONE, Justice Presiding.

The question before this court is whether, under the circumstances, the State of New York had the legal duty to post signs warning bathers of the presence of sandbars at Jones Beach in Long Island.

On August 4, 1976, the claimant, Glen Herman, proceeded to the West End 2 section of Jones Beach with three friends. Earlier that summer he had frequented that area of the beach approximately six times. Upon entering the water on August 4, he proceeded about 75 to 100 feet from shore. He then executed a surface dive and, as a result, sustained severe personal injuries when his head struck a sandbar.

The claimant testified that he did not observe the sandbar prior to diving. However, he admitted being familiar with this area of the beach, and conceded that he had bathed there on many prior occasions, including the six prior occasions that summer.

Evidence was also adduced at the trial that two divers were involved in similar accidents at Jones Beach in 1974 and 1975, respectively, and that a report of each incident had been filed with the State. Moreover, it was uncontroverted that formations of sandbars are phenomena common to ocean beaches, and, specifically, that the West End 2 section of Jones Beach is particularly prone to sand accretion due to the jetty constructed in the area in 1939. It was also noted that because of the dynamic nature of the ocean's topography, sandbars often vanish within one day of their formation. In addition, evidence was adduced that public attendance at the West End 2 area on the day of the claimant's accident was estimated at between 3,400 and 6,000 people.

After trial, the Court of Claims found that the State's negligence was the proximate cause of the claimant's accident. It then found the claimant 50% negligent in failing to ascertain the depth of the water before he dove. The parties have cross-appealed from the interlocutory judgment entered upon these findings. We disagree with the determination of the court that the State was negligent in failing to provide adequate warning signs to bathers with respect to the presence of sandbars. Accordingly, the interlocutory judgment should be reversed and the claim dismissed.

We acknowledge that liability for failure to warn the public of a dangerous condition is reasonably imposed upon a governmental body when it creates or contributes substantially to the creation of that condition (see Mendez v. State of New York, 56 Misc.2d 143, 288 N.Y.S.2d 680; Surmanek v. State of New York, 24 Misc.2d 102, 202 N.Y.S.2d 756; Casoni v. Town of Islip, 278 App.Div. 715, 103 N.Y.S.2d 435; Lawson v. State of New York, 207 Misc. 542, 139 N.Y.S.2d 525, affd. 1 A.D.2d 796, 149 N.Y.S.2d 258). However, the present controversy involves a natural as opposed to man-made hazard. As indicated above, sandbars are naturally occurring phenomena common to ocean beaches. In this instance, the State did nothing to create sandbars or foster their presence. Unlike the claimant in Lawson (supra ), the claimant herein was not affirmatively misled as to the water's depth at the subject location.

Moreover, the highly transitory nature of sandbars leads us to conclude that the imposition of a duty to warn upon the State would be both...