Serbalik v. State of New York
| Decision Date | 23 July 1953 |
| Citation | 204 Misc. 2 |
| Parties | John Serbalik, Claimant,<BR>v.<BR>State of New York, Defendant. (Claim No. 31053.)<BR>John Serbalik, Jr., by John Serbalik, His Guardian ad Litem, Claimant,<BR>v.<BR>State of New York, Defendant. (Claim No. 31054.)<BR>Leona Serbalik, Claimant,<BR>v.<BR>State of New York, Defendant. (Claim No. 31055.) |
| Court | New York Court of Claims |
Vincent P. Pickett for claimants.
Nathaniel L. Goldstein, Attorney-General (Joseph A. Drago of counsel), for defendant.
The above claims are for damages sustained by the respective parties as a result of an accident at Hearthstone State Park, a public campsite at Lake George, New York, which is owned and operated by the State of New York through its Conservation Department. The claimants had secured a permit to occupy one of the camps in this park, a short distance from which the State maintains a series of swing units. There are three swings in each unit. The swings, amusement devices, are suspended from a horizontal bar, of two and one-half inch iron pipe, which is supported at each end on a bipod. The seat of the swing is a board approximately eighteen inches long, six inches to eight inches wide, and when in a stationary position, it is about two and one-half feet from the ground. Each end of the seat is attached to a chain consisting of eight links, made of three-eighths inch metal rod and each link about ten inches long. Each end of the link is bent so as to form a circular eyelet, almost, but not quite, closed. In the case of the bottom link, the bottom hook passes through an eye of a bolt fastened to the seat plank, while the eyelet on the upper end of that link passes through the bottom eyelet of the link next above, and continuing likewise until the top link is reached. The eyelet at the top end of the top link passes through another eye which may be compared to the bottom half of an arabic eight. The upper half of the "eight" fits in between two eyes protruding from the bottom of a clamp, which is rigidly fixed to the main cross-bar and is held in position by a bolt which passes through the three eyes. The upper eye of the "eight" with the bolt is referred to as the "swivel".
On August 7, 1951, the claimants, together with Judy Serbalik, another infant child of John and Leona Serbalik, were using the swing units. Leona Serbalik, with her son, John, Jr., on her lap, was using the most westerly swing in the swing unit. Her husband, John Serbalik, holding Judy Serbalik, his daughter, on his lap, was using the most easterly swing in such swing unit. Leona Serbalik weighed about 130 pounds, and her son, John, Jr., weighed 28 to 30 pounds, while John Serbalik (Sr.) weighed about 145 pounds, and his daughter about 28 to 30 pounds.
While Leona Serbalik and her son, John, Jr., were swinging, the top eyelet on the right chain of the swing which connects with the swivel, gave way, freeing such chain to fall. It was conceded by both parties that such eyelet, after the accident, was found to have opened up. The severance of such chain caused the right side of the swing seat to fall free, thereby precipitating the claimants, Leona Serbalik, and her son, John, Jr., to the ground. The claims allege negligence on the part of the State in the construction, operation and maintenance of the swing.
The evidence shows that the opening up of the eyelet, also referred to as the "hook", was the cause of this accident and the resulting damages. There was no evidence offered as to the reason for the opening of the eyelet, which was made of iron or steel. There is no evidence as to whether the hook opened up instantaneously at the time of the accident, or whether it had been a gradual process. The swing, which had been in use for about twenty years, was under the sole control and custody of the State of New York, through its Conservation Department, which, in turn, operated the campsite and equipment by various employees. The caretaker in charge testified on this trial that, aside from casual observation of the swings by employees when in the vicinity thereof, there had been no inspection of the swing since its installation in May, 1951, about two and one-half months prior to the accident, although the swings were in frequent use by great numbers of people. The park was visited by 63,789 persons in 1948; 60,278 in 1949; 44,053 in 1950 and 52,281 in 1951. The swings were used by adults and children, and at times by two persons swinging together, sometimes standing up. There were no signs, warnings or restrictions posted pertaining to such swings or their use.
At the time the swings were installed, grease was put on the swivel, but not on the eyelet which opened up. After the accident, the eyelet was said to have been worn from one thirty-second to one sixteenth of an inch. No tests were made at any time by the State of New York to determine the weight which the swing would hold, and nothing further was done to the swings by the State up to the time of the accident. After the accident, the broken swing was removed, at which time the State employees observed that the eyelet was worn and straightened out. The swing was not produced at the trial.
Claimants' Exhibit No. 7 is a permit by the State to occupy campsite number six, thereby reserving to them that particular...
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