La Rocco v. State

• Decision Date: 21 June 1957
• Citation: 7 Misc.2d 161,165 N.Y.S.2d 301
• Parties: Robert Edward LA ROCCO, an infant over the age of 14 years, by his guardian ad litem Michele J. La Rocco and Michele J. La Rocco, Claimants, v. The STATE of New York.
• Court: New York Court of Claims

Page 301

165 N.Y.S.2d 301

7 Misc.2d 161

Robert Edward LA ROCCO, an infant over the age of 14 years by his guardian ad litem Michele J. La Rocco and Michele J. La Rocco, Claimants, v. The STATE of New York.

Court of Claims of New York.

June 21, 1957.

Edward I. Elicofon, New York City, for claimant, by Herman E. Hoberman and Samuel J. Sussman, Brooklyn, of counsel.

Louis J. Lefkowitz, Atty. Gen., by James G. Austin, Asst. Atty. Gen., for the State of New York.

DEL GIORNO, Judge.

This is an action to recover damages for personal injuries sustained by the claimant as a result of the alleged negligence of the State.

On May 24, 1952, the claimant, who was then 16 years of age and five of his friends, ranging in age from 13 to 14 years, rode in two automobiles to Jones Beach State Park. When the party arrived there, an entrance fee was paid and the car in which he had been a passenger proceeded to Parking Field No. 2, where the car was parked. The claimant and his friends then went down to the beach in front of Parking Field No. 2, which is known as Area No. 2, where there were other people swimming in the water. Blankets were spread out, and the claimant stayed on the beach for a time while others of the party went into the water.

Although the official opening date for Jones Beach was to be May 30th, what is known as the West Bathhouse was opened on May 24, 1952, the date of the occurrence herein because of the unusually warm weather. The bathing beach immediately in front of the West Bathhouse on this date was provided with lifeguards, comfort stations, refreshment stands and a first-aid station for the welfare of the public. On that date, there were no lifeguards on Jones Beach in any place but the West Bathhouse. The bathing areas at Jones Beach are six in number and start numbering from west to east. The West Bathhouse is in Area No. 3. Area No. 2 is west of Area No. 3 (State Exhibits B & C). In front of Area No. 2 there is a concrete walk, running parallel with the waterfront, leading to a boardwalk in an easterly direction. The latter runs parallel with the tide line, is made of wood, is 26 feet wide and connects parking field No. 2 with the West Bathhouse. The distance between Area No. 2 and the West Bathhouse is about 2,000 feet.

The claimant and his party proceeded to Area No. 2, at which point there was no lifeguard although there was a lifeguard 'chair' on the beach. The court finds that the beach Area No. 2 would not have been open to the public for bathing unless a lifeguard were on duty, and that since the beach Area No. 2 was not open that day, there was a sign put up reading 'No lifeguards on duty--bathing at West Bathhouse.'

At the time the claimant proceeded to enter the water, he saw one of his friends, Norma Drew, standing in the water about 30 feet from the beach front, the water reaching to her chest, a height of about 4 feet. He ran into the water, and when he had reached a point parallel with her, the water being about to his waist, he made what is known as a 'surface dive' and struck his head into 'something', sustaining severe injury. He described a surface dive as being one 'mostly on your chest and belly and head.' While this occasion was the first time he had been at Jones Beach, he termed himself a good swimmer and diver, swimming often at Coney Island and at the Y.M.C.A. At the time he made the surface dive, he testified that there was no ocean swell in front of him, and that he assumed the water at the place where he dived to be the same depth as was the water where Norma Drew was standing.

The witness Norma Drew, who at the time of the occurrence was 13 years of age, testified that she was standing in the water about four feet deep, at a point about 30 feet from the shore line. She saw the claimant run from the beach to the water until he had reached a spot parallel with her, about 6 or 7 feet away from her left. Then he made a surface dive and became unconscious. She said that when she walked over to where he was, she found there was 'something' in the water making it hard for her to approach him and that when she did reach him the water was about 1 foot deep. The witnesses Alice Purcell and Lucille Desiderio, then aged 14 and 13 years respectively, substantiated the testimony of the claimant and the witness Drew to the effect that the water where the dive was made was about 4 feet deep and that when Norma Drew went over to the claimant, the water was about up to Norma's knee when she reached him.

State witness Carle, the Superintendent of Jones Beach State Park, testified that except for what the lifeguards find and report by treading water and launching boats, there is no examination made of the subocean floor in and about the beach area, before the beach is opened. The ocean bottom in front of parking field No. 2 was not examined on or before May 24, 1952, the date of the occurrence herein.

The U. S. Coast and Geodetic survey (State's Exhibit E) indicates that the tide was full low at 2:35 P.M. and that the accident occurred at about 3 P.M. (State's Exhibit D). Jones Beach is twenty miles long. The difference in shore exposure between high and low tide is about 100 feet.

Carle testified further that the rate of decline, while walking out into the water, is usually a gradual slope and that there is no breaker wall in front of Jones Beach from the Atlantic Ocean. There are no underwater obstructions, other than a sunken vessel which lies between field No. 6 and the East Bathhouse. Field No. 6 lies East of West Bathhouse about 4 times the distance between area No. 2 and West Bathhouse. There has never been an occasion to level off or remove sand bars.

The beach front changes by reason of hurricanes. There is no appreciable change in the beach front by reason of sand blown into the ocean by wind. When there are northeast winds, beach erosion occurs; when the winds are southwest, there is sand accretion. When beach erosion occurs, beach sand is lost, goes into the water and lies there. The only way this could be discovered would be by an inspection. When the next tide occurs, however, a redistribution of the sand would take place. The distribution is constant and relative to the tides. There are no facilities for removing mounds or sand bars.

Mr. Carle further stated on cross-examination that flotsam and jetsam can be thrown up by the water at the beach and could become imbedded in sand on the ocean floor immediately below the surface, in three or four feet of water. Sand could be thrown above and around such a piece of debris by the action of the tides. He stated, however, that instead of the sane mounding up by the action of the water, a saucer would usually be cut around the imbedded piece.

The claimant suffered severe injury as a result of the accident. The State does not dispute this fact. The claimant was constrained to undergo serious operations, was confined to the hospital for a considerable length of time and was obliged to be subjected to medical treatment which to a boy of less fortitude would have been unbearable indeed. The injuries included a fracture of the neck and injury to the spinal cord with resultant effect upon the right and left upper and lower extremities. The medical expert for the claimant and the medical expert for the State are in agreement as to the nature of the injuries sustained by the claimant; they do not differ in their belief that the injury to the spinal cord resulted in temporary paralysis; that although motor function of the right upper and lower extremities had been impaired, there has been a return of this function with some motor disturbance remaining; that while sansation had been affected in the left upper and lower extremities, sensation has returned thereto, with some residual motor disturbance; they agree that the dropped left foot, which causes it to drag, is a permanent injury, and...