New York State Court of Claims

New York State Court of Claims

MURPHY v. THE STATE OF NEW YORK, #2003-028-003, Claim No. 96319


Case Information

SUSAN MURPHY and RAYMOND MURPHY The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: John M. Shields, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 11, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This is a timely filed claim for damages brought by Susan Murphy (hereinafter "Claimant") and Raymond Murphy (his claim being derivative in nature), for injuries she sustained on August 27, 1996 as a result of the alleged negligence of the Defendant in the ownership and operation of one of its ocean beaches located on Long Island in Suffolk County, New York. The trial of this claim was bifurcated and this decision pertains solely to the issues of liability. In addition to her own testimony, Claimant offered the testimony of her 20 year old nephew, Luke Kennedy (14 years old at the time of the accident), who was an eyewitness to the subject accident, the testimony of her sister-in-law, Mary Kennedy, who was a witness to the immediate aftermath of the accident, and the testimony of Paul Furbeck, as an expert in the field of aquatic safety. Claimant also called to the stand Defendant's employee, Joseph Scalise, the Water Safety Director for Long Island State Parks, including the park at which the subject accident occurred. On its case-in-chief, the Defendant recalled Mr. Scalise and also offered the testimony of Bob Burkley, one of the lifeguards on duty at the subject beach on the day of the accident. In addition to the testimony of the abovementioned individuals, certain business records generated by Defendant's employee lifeguards and photocopies of photographs depicting the signage existing at the park on the day of the accident were also admitted in evidence.

The Court makes the following findings of fact: On August 27, 1996, the Defendant State of New York was the owner of the park known as Robert Moses State Park located on Long Island in Suffolk County, New York. Generally speaking, this park consisted of a rather expansive beach fronting upon the Atlantic Ocean running in an east/west direction, with the ocean to the south. Upon the beach was positioned a main lifeguard stand flanked by six additional stands, three to the east and three to the west[1]. Contiguous to the beach was located a concession stand, restrooms and boardwalk . The main stand was located approximately 75 to 125 yards from this concession stand; depending year to year on the beach erosion and buildup. A large parking area servicing this beach and its various fields[2] is connected by a number of walkways. Located on these walkways near the parking lot, as well as upon the beach proper, are signs announcing the flag demarcation system. Namely, flags of three colors, i.e., red, green and yellow, are positioned on the beach in such a fashion as to create zones in which patrons may engage in various water activities. The red flags indicate unprotected water, danger and therefore no entry in the ocean allowed beyond such flags. The green flags indicate swimming only. And, the yellow flags indicate the only area a patron may use a boogie board.[3] Swimming was allowed in the yellow flagged area as well.
Claimant arrived at the beach with her two children and her mother at approximately

12 o'clock noon and set up her beach blanket and other beach trappings at a pre-arranged location within Field No. 5[4], as she had planned on meeting her two sisters-in-law and their children to spend the afternoon at the beach. The pre-arranged meeting area was to the left or east of the main lifeguard stand. A more definitive description of the location will be discussed below.

The subject accident occurred at approximately 2:00 P.M. At that time, Claimant walked from her blanket to the water's edge with her sister-in-law Kate King and her niece Erin who was covered with sand. The three entered the water to rinse the sand from the child. While Claimant was standing knee-deep in water, facing to the west, and as she bent over to fill a sand pail with water, she saw a wave and a boy riding a boogie board coming toward her. In a split second, the boy, whom she described as heavy and moving very fast, the boogie board and wave crashed into her. Claimant described the impact as "extreme"[5]. Claimant fell to the ocean floor and had to be assisted to her feet by her sister-in-law and 14 year old nephew who had been boogie boarding himself near the site of the incident. Both her sister-in-law and nephew put their arms around the Claimant and helped her return to the family's blanket. As a result of this accident, Claimant alleges she sustained a serious injury.

It is well settled that the State is not an insurer of the safety of those who make use of its recreational facilities (Auricchio v State of New York, Ct Cl, Claim No. 97133, M-61165, Silverman, J.). The law does require that reasonable care be exercised in the maintenance and supervision of State parks (Tripoli v State of New York, 72 AD2d823). Although strict supervision or immediate supervision need not be provided, a municipality may be obliged to furnish an adequate degree of general supervision (see Fritz v City of Buffalo, 277 NY 710; Curcio v City of New York, 275 NY 20; McAuliffe v Town of Windsor, 178 AD2d 905). The duty of supervision may require the regulation or prevention of such activities of park patrons which endanger others utilizing the park. Also, the State owes to those using its facilities a duty of reasonable and ordinary care against foreseeable dangers (Blank v State of New York, 19 Misc 2d 585). Inherent in the concept of foreseeability is the requirement that the State have notice of the dangerous condition upon which its liability would be based.

The Court notes that while the Claimants allege in their Claim that the State was negligent, both specifically and generally, i.e., specifically negligent in the supervision of its beaches on the day of the accident when it allowed and/or permitted this offending boogie boarder to ride his board in the green flagged area (swimmers only area), and, generally negligent in the implementation of its policy of permitting both boogie boarders and swimmers to occupy the same area, i.e., the yellow flagged area, the Claimants failed or opted not to offer on their case-in-chief evidence that the policy was implemented absent sound evaluation, planning and study by the Defendant. Consequently, this Court is not faced with the task of evaluating the Defendant's planning in implementing its flag demarcation policy so as to determine whether the State is entitled to qualified immunity (see Weiss v Fote, 7 NY2d 579).

The sole issue for the Court to determine is whether the Defendant was negligent in enforcing its own policy regarding the flag demarcation system.

Claimants, through their witness Luke Kennedy, suggest that the Defendant was on notice that there was a dangerous condition in the "swimmers only area", in that, as a result of the rough surf, several boogie boarders, in addition to the witness and the offending boogie boarder, were riding waves out of the "swimmers/boogie boarder area" into the "swimmers only area" over a substantial period of time immediately prior to the happening of this accident. Claimant's proof further suggests that the lifeguard or guards on duty at the main stand did nothing to alleviate this problem. Finally, Claimants allege that the instant accident occurred wholly within the "swimmers only area" i.e., the green flagged area, and not within the yellow flagged area which was reserved for boogie boarders and swimmers. It is with this last contention that the Court cannot agree.

Bob Burkley, employed by the Long Island State Park Commision as a Senior Supervisor of Lifeguards at Robert Moses State Park, Fields 4 and 5, a/k/a Field Captain, testified as having worked for the State of New York as an ocean lifeguard for 46 years; 35 of those years as Field Captain. On the date of the accident he was assigned to Robert Moses Fields 4 and 5. He testified that the flags on the date of the accident in the area where this accident is alleged to have occurred were placed as follows: To the east of the main stand two red flags, a green flag immediately to the west of those two red flags and a yellow flag just west of that green flag. To the west of the main stand two red flags and a second green flag immediately to the east of those two red flags. Finally, a second yellow flag was placed due south of the easternmost post used to set up the perimeter of the protected area of the main lifeguard stand. He described the protected area around the main lifeguard stand to entail a post and rope system installed 30 feet to the east and 30 feet to the west of the stand. Within this area is placed a surf boat, kayaks and surfboards, all utilized in lifesaving procedures. Finally, 15 feet further east and west of the aforementioned protected lifeguard area, there was installed another post and rope system. This was to delineate two access lanes for emergency vehicles. Field Captain Burkley explained at great length the need to keep bathers from staking claim to these areas in order to maintain access to the water for the guards and for emergency vehicles. He testified that on the date in question, the westernmost yellow flag was placed due south of the easternmost post of the protected area around the main lifeguard stand, i.e., 30 feet to the east of the main lifeguard stand. An additional section of rope was secured from the easternmost post to the yellow flag to keep bathers out of this area as well.

Upon a review of the testimony of the witnesses offered by Claimant, her nephew, Luke Kennedy, stated that his family set up their beach blankets "5 to 10 feet" to the left of the main lifeguard stand as one looks at the water (left being east of the stand). Sister-in-law, Mary Kennedy, testified that their blanket was located approximately 50 feet east of the main lifeguard stand and 200 feet away from the location where the accident occurred. Finally, Claimant confirmed her nephew's testimony and agreed that they set up their beach blankets approximately 5 to 10 feet from the rope on the eastern side of the main lifeguard stand. Thus the Court finds that the Claimant's blanket was located approximately 200 feet north of the accident location and between 20 to 25 feet from the post and rope which delineated the protected lifeguard area

around the main stand on the east side. Thus the Claimant's beach blanket was located 20 to 25 feet inside of the yellow flagged area. The location of the beach blanket is significant given the Claimant's proof regarding the location of where in the water the accident occurred.

Claimant's nephew, Luke Kennedy, testified that he and his mother carried Claimant, arms over shoulders, from the water's edge to the blanket. In so doing, he stated they took a direct path from the water's edge to the blanket which was located to the left (east) of the lifeguard stand. He stated that they did not cross in front of the lifeguard stand in returning to their blanket. Sister-in-law, Mary Kennedy, on cross-examination stated that the accident occurred generally in front of where the blanket was set up. She further testified that when she and her son assisted Claimant to her blanket, they brought her directly up toward the beach. Finally, Claimant described her path of travel from the water to her beach blanket as "we walked along that length of that rope to the east side of the main lifeguard stand all the way to our chairs."

Based upon the Claimant's own proof regarding the location of the blanket and the location of the accident, coupled with the testimony of Field Captain Burkley regarding the placement of the red, green and yellow flags at the time of this accident, the Court finds that the contact between the offending boogie boarder and the Claimant did not occur in the green flagged or "swimmers only" area, but rather occurred in the yellow flagged area or "boogie boarders and swimmers" area. The Court further finds that the proof reflects that Claimant, having been a patron of this beach prior in time, was familiar with the flag demarcation system and the significance of same. On the day in question, she saw the boogie boarders in the water when she arrived at noon and throughout the day. However, when she entered the water to rinse off her niece, she was not looking out for boogie boarders. While in the water at knee-deep depth, with her body facing westward, and while she was looking down as she was filling a pail with water, she was struck by the offending boogie boarder who was moving east to west in a diagonal path. She saw the boogie boarder for but a split second before she was struck.

As set forth by the Court of Appeals in its seminal cases of Basso v Miller 40 NY2d 233 and Scurti v City of New York (40 NY2d 433), "the duty of a government entity as landowner or operator of a public park is the exercise of reasonable care under the circumstances, with foreseeability being the measuring stick of liability" (Masone v State of New York, 149 Misc 2d 255, at 257 citing Basso v Miller) The Defendant State of New York did not owe a duty to Claimant beyond that of making its beaches as safe as they appeared. In circumstances "where persons engage in sports or analogous activities where known risks are an inherent part thereof, government or other property owners on whose land such activities are conducted should not be deemed insurers with respect thereto. Rather, they should only be required to exercise reasonable care to avoid unreasonable dangers beyond such inherent risks." (Masone v State of New York, supra, at 258-259) The Claimant was familiar with the flag demarcation system and the fact that the boogie boarders and swimmers shared a particular portion of the ocean. That portion of the ocean was as safe as it appeared to be, i.e., it was readily foreseeable that one who enters the yellow flagged area may come into contact with a boogie boarder. Upon entering the ocean while within the yellow flagged area, Claimant assumed the foreseeable inherent risks.

For the foregoing reasons, this Court finds that Claimants have failed to establish by a preponderance of the credible evidence that the Defendant was negligent. As a result the Claim is dismissed. Any motions or trial objections on which the Court previously reserved judgment or which were not previously decided are denied.

The Clerk of the Court is directed to enter judgment dismissing the Claim.

April 11, 2003
Albany, New York

Judge of the Court of Claims

[1]The Court is left with the impression based upon the testimony of Water Safety Director Joseph Scalise and lifeguard Bob Burkley that the main lifeguard stand is considerably larger than those to the east and west. It was described as standing approximately 16 feet high off the beach and positioned approximately 50 to 75 yards from the water's edge at low tide. Under normal circumstances, there would be two lifeguards seated upon the main stand compared to one on those located to the east and west.
[2]The beach at Robert Moses State Park is divided into a number of separate fields (which border on the ocean). Each field has one main stand and several "wing stands" (smaller, mobile lifeguard chairs). The alleged accident occurred at Field No. 5 in which there was a main stand and three wing stands both to the east and to the west of the main stand.
[3]A boogie board was described as an abbreviated surf board, often made of Styrofoam or fibreglass. To use these boards in the ocean, one lies belly down upon it and while holding onto the front or sides of the board, rides it into shore by being pushed and/or pulled by the force of the surf.
[4]Claimant testified that she was familiar with Field No. 5 as being a more family oriented area. She related that her familiarity with the Robert Moses State Park Beach was from her many visits prior to having children.
[5]All quotations of testimony of witnesses are taken from the Court's notes taken during trial or from the audiotapes of the trial.