Surmanek v. State

• Decision Date: 30 June 1960
• Docket Number: No. 34038,34038
• Parties: John J. SURMANEK, Jr., Claimant, v. STATE of New York. Claim
• Court: New York Court of Claims

Page 756

202 N.Y.S.2d 756

24 Misc.2d 102

John J. SURMANEK, Jr., Claimant, v. STATE of New York.

Claim No. 34038.

Court of Claims of New York.

June 30, 1960.

Partyka & Dziduch, Amsterdam, for claimant; Frederick Partyka, Amsterdam, of counsel.

Louis J. Lefkowitz, Atty. Gen., for the State; Paul Diggins, Asst. Atty. Gen., of counsel.

CHARLES T. MAJOR, Judge.

This is a claim to recover damages for personal injuries alleged to have been caused by the negligence of the State, through its officers, agents and employees, in the construction and maintence of a beach, swimming facilities and park known as Northampton Beach.

This beach is located about one and one-half miles south of Sacandaga Park, Fulton County, New York, at Sacandaga Reservoir, called Sacandaga Lake. Claimant's specific contention is that the State placed underwater obstacles or objects in the bathing area at the beach and failed to remove them, allowing the same to remain unmarked and without warning to users of the area which caused claimant's injury.

The swimming area runs easterly and westerly (agreed by counsel), and has a sandy bottom extending southerly out into the lake. Its boundary is marked out by a one-fourth inch manila rope about 650 feet long anchored to a tree on each and of the area. The rope then circles through the water in a somewhat crescent shape and is kept afloat just over the surface of the water by connection to wooden floats about 25 feet apart. These floats are connected by link chains to anchors on the lake bottom. The claims are affixed to the floats by an eyelet, and to the anchors by means of a metal eyelet built into the cement block which constitute the anchors. The anchors are blocks of concrete made by employees at the park, sometimes being one-half a nail keg, a square box, or large can filled with concrete. They are various shapes and sizes. The average size is five to eight inches high, and weights about 50 pounds, more or less. These were laid on the bed of the lake. It was the custom of the park officials to reset the anchors, floats and attached rope line from time to time so that the depth of water between the float and water would be five feet. This was done at the opening of the beach on May 16, 1956. As the water receded from its shore line, as it did continuously every summer, the anchors, floats and ropes were moved out. On July 3, 1956, the day of the accident, the anchors, floats and ropes had not been moved out, and the depth of water at their location was only about three feet. The distance from the shore line to such float or buoy line was only 37 feet in front of the beach guard's chair on the shore. The shore tapered off at a 16% grade. Between May 16, 1956, the date buoys were placed, and July 3, 1956, the date of the accident, the water had receded or lowered about two and one-half feet.

On July 3, 1956, claimant and some friends went to this beach and took a lunch. A child was in the party and claimant played with the boy along the shore. Claimant had never been swimming in this water prior to this day. He was 26 years of age and about six feet tall. Just before 3 p. m., he went into the water, in front of, but just to the left of the life guard's chair. He walked out so that the water came up to his waist line, then he dove or lunged forward toward the floating rope. He went downward in the water, and his head and shoulder struck one of the float anchors, dazing him and cutting him across the nose. He caught hold of the clain, pulled and guided himself upward and stood up. His companion helped guide him to the shore. He was given some treatment, later visited a doctor, and finally had an...