New York State Court of Claims

New York State Court of Claims

MARINO v. STATE OF NEW YORK, #2003-014-505, Claim No. 99711


Claim seeking to hold defendant liable for injuries sustained when claimant was struck by a frisbee at Jones Beach is dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
Lawyers Legal Service PlanBy Solomon Abrahams
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy John Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 17, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

The claimant seeks to hold the defendant liable for injuries she sustained when she was struck by a frisbee while she was spending a summer day at Jones Beach.

According to the claimant's testimony at trial she and her two daughters arrived at the beach between 11 o'clock and noon and occupied an area which was approximately 30 to 40 feet to the right of a lifeguard who was elevated on a stand that faced the water. She stated that it was a Sunday with beautiful weather and the beach and water were very crowded.

She testified that she had noticed at least four people playing frisbee 40 to 50 feet away from her. She also had noticed posted signs prohibiting ball playing, alcoholic beverages, and frisbees on the beach. She testified that she overheard a woman complain to the lifeguard about the frisbee playing but the lifeguard failed to do anything to stop the activity. The claimant testified that at approximately 2:30 p.m., after a "couple of hours" of frisbee playing, she was struck by the frisbee on the bridge of her nose.

On cross-examination the claimant acknowledged that at a sworn deposition she had testified that: between 11:00 and 2:30 she did not notice anyone engaged in recreational activity on the beach; she did not specifically see anybody or notice anybody playing; when she went into the water she did not notice anyone playing frisbee; and she did not notice anyone playing frisbee at any time.

Brenda Marino, the claimant's daughter, testified on her behalf. Her version of events was essentially in accord with her mother's trial testimony, although she stated that only 45 minutes had elapsed from the time she initially observed the frisbee playing and the time the frisbee struck her mother.

The deposition of Joseph Scalise, Director of Water Safety for the Long Island Region, was entered into evidence as claimant's Exhibit 4. He stated that the lifeguards' paramount responsibility is to direct their attention to the beach front, which is the beach area from the lifeguard stand to the water. He explained that park police would attend to prohibited activity taking place in other areas of the park. He testified that lifeguards were not expected to carry out foot patrols to control activities not in the water. He stated that if lifeguards saw someone playing frisbee in the water they would ask that person to stop. If that person did not stop, the lifeguard would contact the supervisor who would explain that the activity was prohibited. If the situation escalated, the lifeguard or supervisor would contact uniformed park personnel or the police.

Ron Harris, who was employed by the defendant as a lifeguard at the time of the incident, testified on behalf of the defendant. He was not on the beach the day of the incident. He stated that on a busy summer Sunday between 11:30 a.m. and 2:00 p.m. there would have been nearly 30 lifeguards on duty in the area where the incident took place. Mr. Harris testified that a lifeguard's area of responsibility extends from the lifeguard stand to the water in front of it. He stated that frisbee playing is prohibited because it is an unsafe activity on a crowded beach due to its potential to cause injury.

On the record presented, the discrepancies between the claimant's trial and deposition testimony significantly undermine her ability to meet the burden of demonstrating
by a fair preponderance of the credible evidence that the defendant had notice of the frisbee playing. Moreover, the evidence does not support that frisbee playing is an "ultrahazardous and criminal activity" the prevention of which would be a part of the defendant's duty to maintain Jones Beach "in a reasonably safe condition." Solomon v City of New York, 66 NY2d 1026, 1027 quoting Nicholson v Board of Education, 36 NY2d 798 and Benjamin v City of New York, 64 NY2d 44. In Solomon, the Court of Appeals held that a municipal defendant was not liable for failing to prevent illegal bicycle riding on a busy park promenade, because it did not rise to the level of ultrahazardous and criminal activity. See, Benjamin, supra: occasional rubbish fires in a vacant lot is not ultrahazardous and criminal activity; cf., Nicholson, supra: explosion of firecrackers in a schoolyard, of which the defendant "had on numerous occasions been informed" is ultrahazardous and criminal activity.
Nor is there merit to the claimant's contention, in a post trial brief,[1]
that the record supports finding the defendant liable because it failed to enforce the provisions of 9 NYCRR 375.1 (F) (3)[2] which states that no person shall "throw stones or other objects or missiles which may inflict bodily injury or damage to property." Even if the provision could be construed to cover playing frisbee, enforcement of a statute or regulation is a distinctly governmental function as to which liability may not attach absent a special relationship giving rise to a special duty owed to the claimant. The defendant "did not assume a special relationship toward the [claimant] carrying with it a special duty to protect [her] from the prohibited activity [citations omitted]." Solomon v City of New York, supra.
In accordance with the foregoing, the claim is dismissed.

All motions on which the Court may have reserved decision or which were not previously determined are denied


June 17, 2003
New York, New York

Judge of the Court of Claims

[1]The Court has not considered two submissions by the defendant, which were submitted after post trial briefs were exchanged, without leave of the Court.
[2]Title 9. Executive Department, Subtitle I. Office of Parks, Recreation and Historic Preservation, Chapter I. Parks, Subchapter A. Statewide Rules, Part 375. Prohibited Activities, Section 375.1 Activities absolutely prohibited.