New York State Court of Claims

New York State Court of Claims

JARMOLOWSKI v. THE STATE OF NEW YORK, #2004-028-001,


Synopsis


Case Information

UID:
2004-028-001
Claimant(s):
STANISLAW JARMOLOWSKI
Claimant short name:
JARMOLOWSKI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:

Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
February 4, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, Stanislaw Jarmolowski, in this timely filed claim, alleges he was injured on September 5, 1999 as a consequence of the Defendant's negligence when he dove off of a dock into Lake George, striking his head on the lake bed and rendering himself a quadriplegic. The dock was owned by O'Sullivan's Motel, while the lake bed is owned by the State of New York. Following the denial of the parties summary judgment motions, the Court conducted a bifurcated trial. This decision addresses only the issue of liability.

Claimant introduced the testimony of Dale Harris and Howard Simpson, seasonal employees of the New York State Department of Health (DOH)[1]
, and Brian Fear, the district director of the Glens Fall Office of the DOH, regarding the applicable requirements of the New York State Sanitary Code ( NYCRR ) as it related to waterfront properties such as O'Sullivan's Motel and with regard to inspections conducted by DOH of O'Sullivan's Motel. Pursuant to the Public Health Law, facilities such as O'Sullivan's Motel, referred to as temporary residences, are required to be inspected annually by the Department of Health and operate under a certificate of occupancy issued by DOH on an annual basis. These inspections include, inter alia, observation of the bathing beach and pool facilities, if any, for compliance with the New York State Sanitary Code (Sanitary Code). Dale Harris testified that he inspected O'Sullivan's Motel in 1998 and found that the appropriate "no diving warnings" and depth markings were present on the dock in the designated swim area. Harris testified the absence of such signs was a "red ticket" item, meaning the beach could be subject to immediate closure. Harris testified that portions of a dock may be within the designated swim area while other portions would be outside the swim area and therefore not subject to Sanitary Code regulation.
Simpson testified he inspected O'Sullivan's Motel on July 28, 1999 and that he completed a bathing beach facility inspection report (Exhibit 2 CHECK NAME OF REPORT). The report did not indicate O'Sullivan's was in violation of the Sanitary Code on the date of inspection.[2]

Brian Fear testified that he oversaw the Glens Falls office of the DOH which was comprised of full time employees and seasonal part time employees. The seasonal employees were required to have two years of college with 12 credits in the sciences and were required to pass an exam for the position of public health inspector. New part time public health inspectors were trained by the "more seasoned seasonal people" receiving a week or more of training depending "on how fast they picked it up." From that point the new hires progressed to performing inspections with supervision and then on to assignments doing re-inspections. Inspectors were provided an inspection checklist. The checklists are keyed to the Sanitary Code requirements and the inspectors rate each element as a one (compliance), two (noncompliance) or three (not applicable).

The documentary evidence demonstrated O'Sullivan's was cited in 1991 and again in 1994 for not having depth markings on its dock. (
see Exhibit 3). In subsequent inspections in succeeding years, through the date of the at-issue accident, O'Sullivan's was found to be in compliance with the Sanitary Code.
Hugh Sullivan, president and chief operating officer of O'Sullivan's Motel, a family owned and operated corporation since 1948, testified on behalf of Claimant[3]
. O'Sullivan's has both a bathing beach and a swimming pool. Sullivan testified the original wooden dock was installed around 1954 and he identified the dock permit for 1999 (Exhibit 16) which O'Sullivan's received from the Lake George Park Commission[4]. Sullivan testified that in response to the 1991 citation, he was advised that the motel could place the words "no diving" on the dock to resolve the violation. Sullivan recalled the Defendant's inspector suggested that the warning be placed all the way to the end of the dock. O'Sullivan's maintenance man created a stencil which was used to paint the warning onto the 1 x 6 planks of the dock. Sullivan testified that in response to the 1994 violation, depth markings were added to the side of the dock and he maintained that the motel was not required to place depth markings on the planks of the dock. Upon reinspection, O'Sullivan's passed with the addition of a single depth marking to the side of the dock. Sullivan confirmed that at no time was a "No diving" sign placed at either end of the dock. The only "no diving" warnings were painted on the planks of the dock., which were repainted at the beginning of each season.
Claimant testified he was born in Poland in 1977 and attended school in Poland through 10
th grade. Together with his family, he emigrated to the United States in 1994, settling in New Jersey. Claimant did not speak English when he entered this country. After two years in school, Claimant went to work as a welder and at the time of the accident was employed as a toolmaker. On September 4, 1999, Claimant, together with his friend Peter Pietrzak[5], and four other friends, traveled by car to Lake George to vacation over the Labor Day holiday weekend. It was this group's first visit to Lake George. Following their drive from New Jersey to Lake George, the Claimant, together with his friends registered as guests at the Nomad Motel, which was located off the lake. Claimant described himself as an average swimmer who knew how to dive. Claimant stated he last dove into a body of water ten years before this accident. Claimant testified he used the pool at the Nomad Motel but did not dive into that pool because there were signs indicating diving was prohibited. Claimant provided the following account of the events of September 5, 1999. He awoke around noontime and had breakfast with his friends. After breakfast they toured Lake George Village and returned to their motel to go swimming. Claimant testified that while at the pool he made himself a vodka and cola with ice in an eight ounce glass. Around 3:00 p.m., after finishing his one drink, he and his girlfriend went to take a nap. At approximately 4:00 p.m., Claimant and his friends drove to O'Sullivan's Motel on Lake George to visit other friends staying at O'Sullivans. Unable to locate the friends, Claimant's group left a note and went to dinner. Returning later at an unspecified time, Claimant's group found their friends were in their room at O'Sullivans. Claimant was given another vodka and cola with ice and after ten minutes this group proceeded on foot to the beach area behind O'Sullivan's Motel. At first the group sat in chairs arranged in a circle on the beach. Another ten minutes later, Claimant entered the water for the first time and waded six feet from shore where the water was knee-deep. Claimant testified he observed ships on the lake and boats with pedals and motors attached to each side of the dock. He observed no signs of any kind on the dock from his vantage point. Claimant did observe docks to the left and right of the dock at O'Sullivans which he identified through photographs received in evidence (see Exhibits 11[left] and 15 [right]). Claimant could not see the depth of the water at the end of O'Sullivan's dock. He did not observe anyone dive into the lake. Claimant returned to the chairs. After he finished his drink he returned to the water where he was met by his friend Peter. Claimant testified he said to his friend "let's go dive and swim." Together they proceeded onto the dock for the purpose of jumping into the lake. Approximately halfway out onto the dock, Claimant picked up his pace and proceeded in front of Peter to the end of the dock where he attempted, without first stopping at the end of the dock, a headfirst dive into the water. Claimant testified as he proceeded along the dock he was looking out at the lake and boats and he denied seeing either depth markings or warning signs. Claimant stated he was capable of reading some English, including the words no diving, and that he knew what the words "no diving" meant. Claimant testified he got the "impression" the water at the end of the dock was deep. On cross-examination, Claimant maintained the water was deep enough to dive into, offering that given his own height, ten feet would be sufficient for a safe dive. As he started his dive, he was looking at the surface of the lake and could not see the bottom of the lake. In effectuating the dive, he struck his head on the lake bed, rendering himself a quadriplegic.
Claimant's friend Peter Pietrzak also testified on Claimant's behalf. Pietrzak's testimony mirrored Claimant's testimony varying to a small degree regarding times and distances. Significantly, Pietrzak testified that he observed one person dive into the lake from the end of O'Sullivan's dock and observed another person swimming in the same area before he and Claimant decided to do the same. Pitrzak testified he did not see nay warnings or signs as he went down the dock nor did he see any writing on the dock when he slid into the water to assist Claimant flowing the dive. Pitrzak did not see Claimant enter the water and described Claimant's dive as being at a 45 degree angle.

Claimant's expert witness, Thomas Ebro (Ebro) testified he is trained as an aquatic safety specialist. In 1965, Ebro earned a bachelor of science degree from the University of Oregon, School of Health, Physical Education and Recreation, with a major in the field of recreation management and aquatics administration. Immediately after college, Ebro was employed by the County of Los Angeles, first as an aquatics specialist, and then rising in responsibility to the point where he was in charge of all programing and aquatic specialists in the county. He also served as a deputy coroner-investigator who investigated scuba diving accidents. Ebro left the aquatics field for three years and returned as the operator of aquatic theme resorts first in the Cayman Islands then in the Bahamas. In 1985, Ebro started his consulting practice. During his career, Ebro testified he has developed training films for the American National Red Cross and has been active with numerous aquatic organizations. He has co-authored a mortality study on scuba diving fatalities and has created handouts for his presentations at conferences.

Ebro testified he reviewed "discovery materials" prior to his on-site inspection of October 20, 1999. Ebro conducted a "dry and wet" inspection memorializing the dock's characteristics and then entering the water to obtain information such as depth, slope and composition of the bottom. Ebro testified the bottom gradually sloped from water's edge to a depth of three feet at the dock's midpoint. Ebro determined that at the end of the dock the water was 3 ½ feet deep and continued at that depth 30 feet beyond the end of the dock. The surface of the dock was two feet above the water at dock's end. Ebro opined that this was deceptive because people expect a lake to be "like a bowl" and to experience increasing depth and slope as they proceed into the lake. Ebro found the water to be cloudy, and testified that it was not possible to see the bottom of the lake when standing on the end of the dock, although on cross-examination he indicated visibility was two to three feet and objects could be made out on the bottom of the lake bed.

Ebro testified that he observed neither depth markings nor warning signs on the dock. Ebro did observe a succession of handwritten "no diving" markings "scribbled" onto the dock from one end to the other. Ebro explained that there is a distinction between signs and "reinforcing markings." Ebro described a sign as being "vertical", containing information and posted prior to the area of danger. Markings, in this instance, would be placed on the diving or dock surface, and represent a connection between the sign and its message providing a "last reminder". Ebro testified a proper warning sign at O'Sullivans, based upon standards developed by ANSI and the CPSC would contain five elements from top to bottom - the word "DANGER" in red on the top line; second line, a reference to the environment - "shallow Water"; third line, " NO Diving"; fourth line, a depiction of no diving; and the fifth line the consequence. Ebro stated these standards had been in place for at least 20 years, and that a standardized sign had been developed under the auspices of ANSI, NSDI, American Red Cross and the National Spa and Pool Institute. Ebro acknowledges the ANSI standard relates to swimming pools, not natural bodies of water and are not referenced in the New York State Sanitary Code. Organizations that deal with natural settings, such as the National Water Safety Congress, have adopted and specified warning signs for such locations. Examples of such signs were introduced into evidence (
see Exhibits 25 [ NSPF], 29 [ANSI] and 30 [ Red Cross]). Ebro testified about the mechanics of a shallow dive and the mechanics necessary to keep the diver from plunging into the water at a steeper angle. He opined that the minimum acceptable depth for a safe dive was five feet.
Ebro testified that in his opinion the markings on the dock at O'Sullivan's did not conform to the standards as the words "no diving" did not identify the hazard or the consequence. The wording was insufficient as a warning and would not be heeded by people. Ebro also concluded that the dock lacked necessary depth warnings. Ebro stated the presence of "necessary depth markings and signage would have made a difference and averted this diving tragedy."

Michael Kalsher, an Associate Professor and Chair of the Department of Cognitive Science at Rensselaer Polytechnic Institute, testified on behalf of the Claimant. Kalsher holds a Ph.D. in industrial organizational psychology and in addition to his university work does private consulting in the area of human factors. Kalsher described human factors as an interdisciplinary field which applies information about human behavior and cognition to the design of tasks, tools, machine systems and environments to create safe and productive human use. Kalsher stated part of his area of training and expertise was in the area of warnings. Kalsher has published articles relating to compliance with warnings. Kalsher testified that because people are not often aware of hazards in the environment, a goal in human factors is to provide information in a way that people will take appropriate cautionary behavior and avoid risk of injury to themselves.

Kalsher, who did not conduct a site inspection, testified he primarily used Claimant's deposition testimony and a photograph of the dock in rendering his opinions. Using a photograph of the dock (Exhibit 5), Kalsher testified that given Claimant's intended behavior of entering the water, his attention would be focused at the end of the dock, rather than down at the planks of the dock, Kalsher opined that appropriate warnings would have included depth markings and signage placed to attract an individual's attention that included a signal word, consequences and "no diving". He concluded that the writing on the dock at O'Sullivan's did not provide an adequate and safe warning to Claimant. Kalsher explained that the writing on the planks was poorly located and did not indicate the level of the hazard or the severity of the potential consequences. Kalsher testified ANSI standards are relied upon by human factors consultants such as himself and identified ANSI standards Z535.2 and Z535.4 (Exhibits 26 and 27, respectively) relating facility safety signs and product safety signs. These standards provide guidelines on how to construct a warning.

Defendant did not call any witnesses to testify.

The Court, before it can assess whether the Defendant has breached its obligation to the particular Claimant, must first determine if the Defendant owed a duty to the Claimant (
Lauer v City of New York, 95 NY2d 95, 100). "Absent the existence and breach of ... a duty, the abrogation of governmental immunity, in itself, affords little aid to a plaintiff seeking to cast a municipality in damages" (see Florence v Goldberg, 44 NY2d 189, 195). This question of duty was unresolved on the summary judgment motions, this Court finding a material question of fact regarding, inter alia, the Defendant's Lake George Park Commission's role in overseeing Lake George itself (Jarmoloski v State of New York, Ct Cl, Sise, J., MAC LAW CITE) as Claimant had refined his theory of liability as follows: "[T]he provisions of the Sanitary Code are relevant ...only insofar as it sets forth a standard of conduct which binds the State as landowner...the State is also liable under common law negligence for failing as a landowner to maintain its property in a safe condition in view of foreseeable dangers" (id.). In addition to the trial testimony, Claimant requested the Court take judicial notice of the Lake George Park Commission regulations and an Attorney General's opinion[6] regarding personal watercraft and introduced into evidence ;;;;;;;;;;
The Court of Appeals has stated that "[F]ixing the orbit of duty may be a difficult task"
Lauer v City of New York, 95 NY2d 95, 100). In the face of often tragic consequences and shattered lives, "courts must be mindful of the precedential, and consequential, future effects of their rulings, and ‘limit the legal consequences of wrongs to a controllable degree'" (id. [internal citations omitted]). Perhaps more so, where as here, an individual seeks recovery out of the public purse (id.).
In fixing duty on these facts, the Court declines to liken the State to an out of possession landlord who could exert control over O'Sullivan's operation (
see McCarthy v Handel 297 AD2d 444). Claimant has failed to establish that where Lake George converges with the many docks jutting into its pristine waters is akin to a state park which is operated as a proprietary function by the State (cf. Okeefe v State of New York, 140 AD2d 998). Claimant relies in significant part on the regulations of the Lake George Park Commission and its responsibility for the registration and regulation of docks, wharfs and moorings on Lake George, a power transferred to it by the Legislature in 1987 (see, ECL § 43-0117; Tecler v Lake George Park Com'n, 261 AD2d 690) as a source for Defendant's duty to Claimant. The Court finds nothing in the statutes, particularly ECL §§ 43-0107 and 43-0117(4), or the regulations which empowers the Lake George Park Commission to fashion the type of dock regulation envisioned by Claimant or which would convince the Court a "state park" is being operated in the ordinary sense of that phrase. Two cases upon which Claimant places great reliance, Brown v City of New York, 246 AD2d 568 and Jacques v Village of Lake Placid, 39 AD2d 163 affd 32 NY2d 739, are readily distinguishable in that in both cases the municipality owned and operated a recreation area and the dock/pier from which each plaintiff jumped, facts not present here. In Jacques, the Village of Lake Placid owned and maintained a public recreation area on the westerly shore of Mirror Lake consisting of a wooded park, a sand beach and a swimming dock (Jacques v Village of Lake Placid, supra, 39 AD2d at 164) and in Brown the plaintiffs dove from the City owned and operated Steeplechase Pier . Viewed in light of these cases, the Lake George Park Commission is properly seen as a land and water use regulator, charged with protecting and preserving a precious natural resource and not the operator of a "state park." Its duties are not similar to acts undertaken by private individuals or corporations. As the Court of Appeals has cautioned, notwithstanding sympathetic facts, such as those present in the instant Claim, the opening of the State to potential liability for every jump in a lake from a permitted dock is unacceptable. In applying the balancing test espoused by the Court of Appeals, regulation of the facilities at O'Sullivans and similar establishments through the State Sanitary Code, and common law principles, in this Court's view, appropriately fixes the duty for preventing waterside accidents on the waterside operator. The burden on the State to make safe every point of entry into the lake to hopefully prevent accidents such as Claimant's would be immense, impractical and unreasonable (see e.g. Masone v State of New York, 563 NYS2d 992, 996). The Court therefore concludes that the Defendant did not owe a duty to Claimant and therefore dismisses the Claim.
Any motions not previously ruled upon or upon which the Court reserved decision are denied.


February 4, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] Both Harris and Simpson enjoyed full time employment with area school districts.
[2] Simpson's testimony was devoid of detail regarding the inspection he conducted at O'Sullivan's Motel on July 28, 1999.
[3] The Court permitted the questioning of Sullivan as a hostile witness. At the time of his testimony, O'Sullivan's Motel was a defendant in a federal action arising from the same incident.
[4]Pursuant to the ECL, O'Sullivan's paid an annual fee for it's dock permit.
[5] In the Court's summary judgment decision and order this friend was referred to as as "Mirek" and Claimant's papers included an affidavit from Piotr Pietrzak, who identifies himself as the individual who went onto the dock with Claimant.
[6] OPN NO. ??????,