Zarillo v. State
| Decision Date | 22 July 1958 |
| Parties | George ZARILLO, individually and as Guardian ad Litem for Margaret Zarillo, an infant, Claimants, v. The STATE of New York. |
| Court | New York Court of Claims |
Irving A. Scheinberg, Brooklyn, for claimants, Erwin Greenberg, New York City, of counsel.
Louis J. Lefkowitz, Atty. Gen., Robert Schwartz, Asst. Atty. Gen., of counsel, for the State.
This is an action brought by George Zarillo, individually and as guardian ad litem for the infant, Margaret Zarillo, who is his daughter. He demands $25,000 for the injuries to the infant and $5,000 for himself for medical expenses and loss of services of said infant.
Claimants allege that the State of New York was negligent in connection with the ownership, management and control of Valley Stream State Park, Valley Stream, New York, on July 27, 1955, the date of the accident herein.
The testimony brought out that said park was owned, managed and controlled by the Long Island State Park Commission, a sub-division of the State, and that it was divided into a North area and a South area. The south area, which is involved in this claim, consists of some 40 acres, all enclosed by a high wire mesh fence, except for the entrances. Twenty acres comprise a lake and twenty acres are land with trails, picnic area, wooded areas and grass areas. There is a parking area for motor vehicles and also a bicycle rack for some 50 bicycles. While there is a parking fee for motor vehicles, there is none for bicycles.
At the extreme south, the park abuts Merrick Road. There are two entrances there where motor vehicles may enter, approach the toll booth, pay the fee and park. Nearby is the field house and boat house with refreshment stand. The lake is rectangular and runs south to north, beginning near the field house. On both sides of the lake there are paths for pedestrians, who may walk, stand or sit at their pleasure. It is a lovely and relaxing atmosphere. In the middle of the park, and generally dividing the south area from the north area, is Hendrickson Avenue. There are two entrances from Hendrickson Avenue also leading to the south area.
Concededly, there are signs at each of the four entrances and at about seven other locations throughout the south area of the park which read: 'Bicycle Riding Not Permitted'. The signs are 20 inches by 30 inches with a black background on which the above is written in 4-inch silver letters. The signs are readable and are placed about 30 inches above the ground (State's Exs. B & C).
A reading of the Long Island State Park Ordinances (Cls.' Ex. 5) discloses no ordinance prohibiting riding of bicycles. The State's employee-witnesses said it was an unwritten rule that bicycles could not be ridden in the park, which unwritten rule the Park Commission tried to enforce by setting up the aforesaid signs. The superintendent of the park and the other employees stated that they tried to enforce this unwritten rule whenever they caught some one riding a bicycle, by stopping him, taking his bicycle away and placing and locking it in the bicycle rack until the person was ready to leave the park.
The superintendent, who had been there since six weeks before the accident, testified that during that period of time he had had to 'chase' children off their bicycles on at least six occasions and had received information that his men did likewise. He said he did not see many children riding their bicycles but assumed that if they were out of his sight they could or would ride their bicycles.
Walter Schwing, the Assistant Foreman, testified that there were Rules and Regulations for that park and that these were posted upon a post (Examination before trial--Q. & A. 55), but he remembered none of them, except in a general way (Q. & A. 60); and further testified as follows:
'
'
The testimony brought out that there were some nine employees working on the day of the accident at the usual chores of caring for park property and activity and incidentally supervising the 300 or 400 guests in that area. That is the picture of the park as the claimants arrived. The claimant, George Zarillo, drove his car with his wife, his sister-in-law and their respective two small children as passengers. The infant claimant was then 4 years old. They arrived at 2 p. m., and had lunch. The two sisters then took their children to see the swans in the lake. The walk was a leisurely one, the four children ahead of the two mothers. The path they were on ended nearby at the enclosing fence. Near the fence the path sloped upward. There the mother saw two boys with their bicycles, resting against the fence. Suddenly and without warning, these boys jumped on their bicycles and rode down the slope. The mother, who was some 45 feet distant from the child claimant, screamed for her to get out of the way of the bicycles but the child was not fast enough to avoid being struck. She and one of the boys on the bicycle both went down. The boy, however, picked himself up, got on his bicycle and rode away. The child, obviously, struck her head on the ground, for she was knocked unconscious and was bleeding from the side of her head. The mother and aunt, the latter being ill and unable to appear and testify, carried her to the First Aid Station. On the way they met State's employee Harold Hoffman, who was then driving a Park station wagon. The women hailed him (Q. & A. 174) and he took the mother and child to the office (Q. & A. 186). Hoffman testified that the mother told him the child had been hit by a bike (Q. & A. 187). He further volunteered that 'we have a lot of children that come through the park and ride bicycles and we tell them they have to dismount' (Q. & A. 189), and added, (Q. & A. 190) 'We see them every day' (riding bicycles in the Park).
After receiving first aid, the child was taken home. She slept all the way. The family doctor administered penicillian and tetanus shots and closed the would on the left occipital scalp with three sutures. The doctor prescribed sedatives and bed rest. The sutures were removed on August 3, 1955. At that time he found the child upset and nauseous. On August 18th, the doctor visited the child, found her well but nervous, afraid, and 'thought' then she was suffering from post concussion syndrome. The doctor kept the child in bed almost continuously to September 8, 1955. The mother complained to him of the child's continued fright and bad dreams in spite of the fact that she had returned to school. On October 27, 1955, Dr. Samuels suggested that the family have the child examined by a neurologist. No X-rays ever were taken of the child's head. The neurologist was not consulted until February 17, 1956. The same neurologist, Dr. James E. Rappa, examined the child again on April 24, 1958. His conclusions were similar on both occasions. Having been told by the mother and Dr. Samuels of the child's sleep disturbance, fear, startle reaction, temper outbursts, poor eating, refusal to play with other children and of her talking about 'blood, killing and choking' he concluded that the speech impairment (lisping with S's and F's) may be due to brain involvement and not to any impairment of speech apparatus, and that in essence, the picture presented is one of personality changes based on trauma to the head, following a post concussion syndrome. He conceded, however, that the neurological test revealed no involvement of the brain. His opinion generally was based upon the history he received. He suggested that intensive corrective measures be continued, particularly where speech difficulties were concerned, and that efforts be made to enable the child to become more receptive of her role within the group setting. He testified that with such attention the child's chances of normalcy are very superior. The medical bills were $60 for Dr. Samuels, $50 for Dr. Rappa and medicine $5, outside of Court appearances.
On the other hand, Dr. Peter G. Denker, also a neurologist and psychiatrist of prominence, was called as a witness by the State. He testified that he had examined the child at her lawyer's office of March 19, 1950, when he received substantially the same history from her mother as that provided Dr. Rappa. He added that the child seemed of healthy appearance, was very bright, alert and co-operative. She had a slight lisp in her speech but child be understood readily. The child had had most of the usual children's diseases and in addition, she had had two operations, one for an inguinal herniotomy at age 3, and a tonsillectomy at age five. He...
To continue reading
Request your trial
- Zarillo v. State
- Zarillo v. State
-
Zarillo v. State
...Supreme Court of New York, Appellate Division, Third Department. Dec. 4, 1958. Motion to dismiss appeal, 12 Misc.2d 692, 177 N.Y.S.2d 146, granted, without costs, unless appellants perfect appeal, file note of issue, and file and serve record and brief on or before January 10, 1959, and are......