Herman v. State, 62036

• Decision Date: 10 June 1981
• Docket Number: No. 62036,62036
• Parties: Glen HERMAN, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 1018

439 N.Y.S.2d 1018

109 Misc.2d 455

Glen HERMAN, Claimant, v. The STATE of New York, Defendant.

Claim No. 62036.

Court of Claims of New York.

June 10, 1981.

Leight & Weinstein by Michael J. Grenthal, New York City, for claimant.

Robert Abrams, Atty. Gen., by William T. McCue, Asst. Atty. Gen., New York City, for defendant.

DECISION

GERARD M. WEISBERG, Judge.

On August 4, 1976, at approximately 12 noon, Glen Herman (claimant) and his friend Lawrence Weinmann entered the surf at Jones Beach West End 2 (WE2). They paused momentarily at the water's edge to wet their ankles; then Glen Herman ran into the water, a distance of 50 to 100 feet, to a point where the gradually deepening water had reached waist level--approximately four feet. Lurching forward, straight out towards the sea, in a head first "surface-dive," Herman struck a submerged sand bar with his arms and head. Still conscious, he felt the sand with his face as he lay prone in the water--paralyzed and unable to turn over. Weinmann had entered the water with Herman and was standing in waist deep water, approximately six feet to Herman's left. Observing Herman floating face down for ten seconds, Weinmann at first thought his friend was joking, but then, seeing Herman turn blue, he picked claimant's head out of the water and called the lifeguard. While rendering this assistance, Weinmann observed an abrupt change in the water's depth to approximately knee level, and felt the ocean bottom incline upwards. Weinmann testified that an accumulation of sand existed which was invisible from above the ocean's surface.

This claim for negligence is predicated upon two contentions: (1) that the State failed to perform its duty to provide adequate warning of the danger posed by sand bars concerning which it had knowledge based on prior accidents; and (2) that the State should have erected "groins" to diminish sand bar activity. The trial was bifurcated.

Maxwell Cohen, an oceanographer, marine biologist and educator, gave expert testimony concerning the topography and oceanographic characteristics of Jones Beach from which the Court finds that great waves roll in from the southeast, striking the south shore of Long Island at an angle and creating a longshore current from east to west which carries sand and other particulate material along with it like a conveyor belt, simultaneously withdrawing and depositing sand on various beaches, whose topography is continually changing and which were described as "ephemeral"; that about 1939 a jetty of massive boulders and sand was constructed by the Army Corps of Engineers at Jones Inlet for the purpose of trapping sand which might otherwise flow into the inlet, blocking the channel; that WE2 is that area of Jones Beach closest to the jetty, lying approximately one mile therefrom; that WE2 was merely a few dunes and marshes when the jetty was built, but is now extremely large owing to an accretion of sand held by the jetty; that land under water in this area has greater "bar action" than any other at Jones Beach; that sand bars form from 50 to 100 feet offshore in the northeast United States where obstructions slow down the current; that bars are extremely variable and transitory; that the high incidence of sand bars at WE2 is known to the scientific community; that groins are similar to jetties and that they jut out perpendicularly to the shore line and are constructed by the Army Corps of Engineers to slow the longshore current and cause accretions of sand and minor sand barring; that there are 50 or more groins on Atlantic and Long Beaches; that it was physically possible to construct groins upstream of WE2 which, if constructed, would have lessened the number of sand bars and made the ones that formed less abrupt; and that groins are aesthetically detrimental.

Evidence was received of three previous accidents concerning which the State had actual knowledge. On June 14, 1974 Timothy Palmieri suffered injury at WE2 when his head struck a submerged sand bar while executing a surface dive approximately 50 feet from shore. The water's depth had abruptly dropped from approximately his bathing suit level to below the shins. Palmieri suffered a dislocated shoulder and was removed to the hospital by a police ambulance. Additionally, on May 21, 1975 Jack E. Crespi executed a surface dive at WE2, struck a sand bar and became paralyzed. Crespi filed a claim against the State which was discontinued. The third reported accident took place on May 24, 1952 when Robert Edward La Rocco suffered crippling injuries and paralysis after striking a sand bar while executing a surface dive at WE2. This accident gave rise to a claim against the State of New York (La Rocco v. State of New York, 7 Misc.2d 161, 165 N.Y.S.2d 301, affd. 8 A.D.2d 644, 185 N.Y.S.2d 24).

During the seasons of 1974 through 1976 approximately one and one-half million patrons attended WE2 which is approximately one-half mile in length. While admitting that recurring types of accidents generally warrant an investigation, the State admitted that no investigation was undertaken of the Herman accident. In maintaining Jones Beach, the State does not undertake to level or otherwise control the condition of the ocean floor, except that lifeguards are required to search for submerged objects. Sand bars are built up and broken down, sometimes hourly. In recognition of this fact, the Water Safety Lifeguard Manual of the New York State Parks and Recreation Department states on page 35 thereof: "must be on the alert for changing bottom conditions. These variations are particularly dangerous to poor and non-swimmers." The Manual further states at page 38: "one place there may be a smooth level floor, but ten yards to either side there may be a deep hole with a sea puss running through it." The "sea puss" is a swift runoff of water caused by the action of waves over a sand bar or "berm." Lifeguards are instructed to be "constantly on the alert" for sea pusses which can be identified by observing "surf indicators."

Douglas Molander, Assistant Supervisor of Park Operations at Jones Beach, whose duties comprise management and maintenance thereof, testified that lifeguards were required to warn bathers of any dangerous conditions of which they had knowledge. During the summer of 1976 there were no warning signs posted concerning any sand bars or other submerged portions of the beach area. There are, however, signs stating "Bathe in Protected Areas Only," which areas are designated by markers.

The State is not an insurer of its patrons' safety against all hazards, natural or otherwise; the State as landowner is charged with acting reasonably to maintain its property in a safe condition "... in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." (Smith v. Arbaugh's Rest., Inc., 469 F.2d 97, 100, The distinctions formerly drawn between invitees, licensees and trespassers are not material, since a single standard of care applies, determined by the likelihood of claimant's presence at the particular time and place of the injury and the foreseeability of harm. The scope of this duty is qualified by the notion that the landowner is not required to undertake "unduly burdensome" tasks or responsibilities. (Scurti v. City of New York, 40 N.Y.2d 433, 442, 387 N.Y.S.2d 55, 354 N.E.2d 794.) Specifically, the State has the duty to exercise reasonable care in the maintenance, control and supervision of bathing areas such as Jones Beach. (Clark v. City of Buffalo, 288 N.Y. 62, 41 N.E.2d 459; Curcio v. City of New York, 275 N.Y. 20, 9 N.E.2d 760; Casoni v. Town of Islip, 278 App.Div. 715, 103 N.Y.S.2d 435; Caporossi v. Atlantic City, 220 F.Supp. 508 (D.N.J., 1963], affd. 328 F.2d 620 cert. den. 379 U.S. 825, 85 S.Ct. 51, 13 L.Ed.2d 35; Kleinke v. Ocean City, 163 N.J.Super. 424, 394 A.2d 1257.)

The State principally relies upon La Rocco v. State of New York, supra, in which a bather was seriously injured at WE2 when he struck a submerged sand bar while executing a surface dive. The Appellate Division, Third Department, affirmed a judgment of no liability upon the grounds that: (1) it was unreasonable and unduly burdensome to expect the State to inspect or remove sand bars at Jones Beach which is approximately 20 miles long and that imposition of such a task would improperly render the State an insurer of beach safety; (2) that the accident situs was not officially open to the public and, consequently, the State had a limited duty with respect thereto; and (3) that claimant was contributorily negligent in failing to ascertain that the water was safe for diving.

La Rocco stands for the legal proposition that the State has no affirmative duty to change the configuration of the ocean floor so as to eliminate transitory phenomena, such as sand bars, created by the interplay of natural forces. This explicit holding destroys claimant's contention that groins should have been constructed to accomplish this very purpose. The factual record is, in any event, wholly insubstantial with respect to groins, their feasibility, cost or ramifications, especially in light of their deleterious aesthetic effect on the landscape, and the necessary involvement of the Army Corps of Engineers, an entity not under the control of the State. The decision-making...