Ryan v. State

• Court: New York Court of Claims
• Writing for the Court: CHARLES LAMBIASE
• Citation: Ryan v. State, 13 Misc.2d 282, 177 N.Y.S.2d 922 (N.Y. Ct. Cl. 1958)
• Decision Date: 08 July 1958
• Parties: Daniel E. RYAN, as Administrator with Limited Letters of the Estate of Rita Nantel, Claimant, v. The STATE of New York.

Page 922

177 N.Y.S.2d 922

13 Misc.2d 282

Daniel E. RYAN, as Administrator with Limited Letters of the Estate of Rita Nantel, Claimant, v. The STATE of New York.

Court of Claims of New York.

July 8, 1958.

John R. Cummins, Plattsburgh, for claimant.

Louis J. Lefkowitz, Atty. Gen., by Harold S. Coyne and Andrew McGarraghy, Asst. Attys. Gen., of counsel, for the State.

CHARLES LAMBIASE, Judge.

This claim under the title of 'Charles M. Morhous, as Administrator with Limited Letters of the Estate of Rita Nantel' was filed to recover damages for the wrongful death of the deceased above named, allegedly caused through the negligence of the State of New York, its officers and employees, in the particulars set forth in the claim to some of which we will refer hereinafter. The claim was duly filed, has not been assigned, and has not been submitted to any other officer or tribunal for audit or determination. It appearing upon the trial that Daniel E. Ryan was then the administrator with limited letters of administration of the estate of the deceased herein having been duly appointed as such by order of the Surrogate of the County of Clinton, New York, on September 11, 1957, and having duly qualified thereunder and that Charles M. Morhous was no longer such administrator, an order of this court was duly made substituting said Daniel E. Ryan as administrator with limited letters of administration of the estate of the deceased as claimant herein without prejudice to any and all proceedings theretofore had. The deceased, Rita Nantel, was survived by her husband who, at the time of the trial, had remarried, and by her infant son.

On July 25, 1953, the deceased, Rita Nantel, age 23, a resident of the City of Montreal, Province of Quebec, Canada, died by drowning in the waters of Lake Champlain, and particularly in that part of said lake which then was and now is a part of the Barge Canal System of the State of New York, and upon the shores of which were then and are now located the Barge Canal Terminal Facilities within the City of Plattsburgh, New York. On that day deceased, together with her husband, Roger Nantel, her two year old son Ivan, one Lise Tremblay, and one Paul E. Lelievre, escorting the last named, were visiting the City of Plattsburgh, New York. She and the others apparently knew that there was a bathing beach within the City of Plattsburgh, New York, known as the Plattsburgh Municipal Beach. They started out for this beach which was quite close to the motel where they were staying, but instead they reached the Barge Canal Terminal Facilities which were also quite near. There they found the waters of the lake, a long pier, a breakwater, and a crescent shaped exposure of sand approximately 200 feet in length.

The deceased, her husband, and the others waded into the waters that early afternoon. There came a time when the deceased and Lise Tremblay were the only ones of their party in the water. They were playing and frolicking around. Neither could swim. Sometime during this interval when they were alone in the water, they walked out farther from the shore all the while facing toward the water and away from the shore. When they were about 15 feet from the shore, they dropped off the edge of a so-called 'drop off', underneath the water, into very deep water and were drowned.

It is alleged that the State was negligent in that the drop off lay beneath the waters unknown to deceased where it could not be seen by her; in that there were no signs or warnings indicating the presence of the drop off; in that there were no signs prohibiting bathing or picnicking at the time and at the place; in that the beach was not roped off so as to indicate the location of deep water; in that the State had actual knowledge that the public over the years used the beach for recreational purposes including bathing and wading; in that there were no depth markers in the water; in that the State of New York created a dangerous condition by said drop off; in that the creation of the sand beach leading to the water and to the drop off was deceptive; and in that the State of New York thus created a trap, nuisance, and place of danger to the public including the deceased herein, as the result of which deceased was drowned.

The State of New York, on the other hand, resists any liability and maintains in substance that the deceased was a trespasser or, at best, a bare licensee toward whom it owed only the duty to abstain from affirmative acts of negligence and from injuring intentionally.

The State of New York acquired the land in question for the purpose of its development as a Barge Canal Terminal. Such development was a necessary element in the navigation and in the use of the Barge Canal System of the State of New York. All installations were on New York State property and were used for the purposes of carrying on Barge Canal navigation. In the course of said development the State of New York did considerable dredging in the locality so that boats could come in and tie up at the pier. At various times as the dredging operations took place, sand was taken or sucked up...