Mendez v. State

• Decision Date: 12 March 1968
• Docket Number: No. 45608,45608
• Citation: 56 Misc.2d 143,288 N.Y.S.2d 680
• Parties: Aurelio MENDEZ, Claimant, v. The STATE or New York and Palisades Interstate Park Commission, Defendants. Claim
• Court: New York Court of Claims

Page 680

288 N.Y.S.2d 680

56 Misc.2d 143

Aurelio MENDEZ, Claimant, v. The STATE or New York and Palisades Interstate Park Commission, Defendants.

Claim No. 45608.

Court of Claims of New York March 12, 1968.

[56 Misc.2d 144] Irving Payson Zinbarg, New York City, for claimant.

Louis J. Lefkowitz, Atty. Gen., by Lawrence J., Logan, Asst. Atty. Gen., of counsel, for the State.

DECISION

DOROTHEA E. DONALDSON, Judge.

Claimant contended that he was entitled to recover damages for personal injuries and special damages upon the alleged negligence of the defendants, the State of New York and Palisades Interstate Park Commission, to properly inspect and maintain a designated swimming area with a float for diving in Lake Tiorati in Harriman State Park, a part of the Palisades Interstate Park. This contention was predicated upon res ipsa loquitur and claimant's freedom from contributory negligence. The defendants maintained that their duty to protect the interests of citizens required the exercise of reasonable care, that the proximate cause of the injury was predicated upon conjecture and that there was insufficient proof of negligence or failure by the defendants.

The burden of proof must be sustained by the claimant. The defendants are not required to identify the cause of injury but neither may they rely upon the presumption that the premises are free from hazard when no accident had been reported prior to the date of this occurrence.

The claim was timely filed and has not been assigned or submitted to any other Court or tribunal for determination.

On July 24, 1965 at 11:00 a.m., claimant, accompanied by a nephew and brother-in-law, having paid the admission fees to the swimming beach, entered Lake Tiorati and swam out to the raft. The raft floated at the apex of the swimming area identified by green flags located at either ends of a sandy beach, to which flags lifelines were attached extending out to the raft. The wooden-planked raft was two separate floats, each fourteen feet by twenty-four feet, buoyed by steel drums and was moored in place by five ropes which extended from its center and each of the four corners to individual concrete and rock anchor blocks sixteen inches by ten inches by ten inches in size on the lake bottom. During the months of March or April, in preparation for the summer bathing season, the raft was positioned, the lines were attached and the concrete weights became the anchors and settled into the bottom sand and silt of the lake. Originally, Lake Tiorati was a natural lake but had been artificially enlarged. The swimming area with the diving raft was situated in the artificial area of the lake.

When the raft was originally positioned in March or April and daily during the months of the summer swimming season, the area of the sandy beach and the lake bottom of the swimming area from the beach to the raft as confined by the guide ropes was examined to remove any debris, foreign objects or hazards. When the paying public entered the swimming area, lifeguards were so positioned that one was always on the raft, one was seated in a stand on the beach and two others were within the water area between the beach and...