This is a timely filed claim by Meghan McLoone (hereinafter "claimant"), for
injuries sustained at Jones Beach State Park, Wantagh, New York, on June 24,
2000. On March 9, 2004, a plenary trial was held in this matter.
Claimant testified that on Saturday, June 24, 2000, she and her boyfriend went
to Jones Beach State Park. They arrived at about 4:00 p.m. and parked their car
at Field 4. Claimant and her boyfriend entered the beach from the parking lot's
main entrance. They picked out a spot approximately half way to the water.
Claimant described the crowd as moderate, meaning that while other people were
on the beach, they were not crowded together. Claimant and her boyfriend laid
out a large blanket. It was pink and blue plaid with large flowers on it. In
addition, claimant also spread out some towels around the blanket. Claimant was
wearing blue shorts and a white tank top over her bikini.
Claimant sat down on the blanket and started to read, while her boyfriend went
to sleep. After approximately two hours, claimant put her book down and woke up
her boyfriend. The two conversed for a short time and then they both went to
sleep. Claimant was lying face down with her left arm bent under her head and
her right arm down at her side.
At some point, claimant awoke and saw a truck far down the beach. She then
drifted back to sleep. The next thing claimant remembered is her boyfriend
screaming. With the scream, claimant woke up and looked over her left shoulder.
The only thing claimant could see was a tire and a split second later the tire
was driving up onto claimant's left arm and onto her back. The tire was
traveling parallel to claimant's spine and then rolled off claimant near her
midsection. (The path of the tire is clearly seen in claimant's Exhibits 5 and
6). Claimant was not aware of any horns or beeps or other noises prior to being
This was claimant's testimony as to the issue of liability. In addition,
claimant's counsel read into the record portions of the deposition testimony of
Frank Kollar. Kollar was the manager of Jones Beach State Park responsible for
the day to day operations of the park. At approximately 7:20 p.m., Kollar was
called to the scene of claimant's accident. He noticed a garbage truck there
which he identified as a "Broyhill" (see claimant's exhibit 4). This is a truck
which is used to empty garbage cans on the beach. It has a hopper on the back
of the truck which holds the garbage. The hopper prevents a driver from seeing
behind the truck with a rear view mirror. The driver must use the side mirrors
to see behind the truck. Upon inspection of the Broyhill at the accident scene,
Kollar stated that it had a dirty, cracked window on one side and it was missing
a side mirror. Kollar also identified the driver of the garbage truck that ran
over the claimant as a seasonal employee of Jones Beach State Park.
This was the entirety of claimant's case as to the issue of liability. The
State presented no witnesses or evidence on the question of liability.
It is well settled that the State does not insure the safety of those who
participate in recreational activities. To recover in a negligence action, a
claimant must establish that defendant owed him a duty to use reasonable care
and that duty was breached (Akins v Glens Falls City School District
NY2d 325). Absent the breach of that duty, there can be no liability (Kimbar
, 1 NY2d 399). The duty of care is limited by claimant's reasonable
expectations under the circumstances. Defendant will be relieved of its duty
where the claimant has made an informed estimate of involvement in an activity,
voluntarily undertakes the activity and is injured as a result of those risks
(Turcotte v Fell
, 68 NY2d 432). Defendant's obligation in such a
situation is to make the premises as safe as they appear to be so that claimant
can fully comprehend and see the risks which will be assumed (Drew v State of
, 146 Ad2d 847). Claimant will be held to have consented to an
injury causing event where it was known, apparent or readily foreseeable
(O'Neill v Daniels
, 135 AD2d 1076, lv den
Considering the harm that befell claimant, it is beyond question that claimant
has proven her case. No beachgoer would perceive the risk of harm that occurred
to claimant. If the State had to have a garbage truck on the beach at the time
it was there to empty garbage cans, then it is fair to say that it owed a duty
to its patrons not to run anyone. Claimant was not engaged in any activity
which could expose her to the risk of being run over. The Court finds the State
100% liable for claimant's injuries.
The remainder of claimant's testimony and case focused on her injuries and
their effects on her.
Immediately after the accident, claimant said she tried to get up but was
pushed back down by her boyfriend. Lifeguards responded to claimant, put her on
a stretcher and transported her to the first aid station. Claimant was taken by
ambulance to Nassau County Medical Center (hereinafter "Nassau"). At Nassau,
claimant was examined by a doctor, had x-rays taken and was released to her
parents at about midnight.
Claimant was experiencing pain in her back, neck, chest, arm, shoulder and
ribs. She described the pain as sharp and shooting with achiness. Claimant was
taking Motrin as directed by the doctor at Nassau. On Monday, June 26, 2000,
claimant went to see her own doctor who recommended that she see an orthopedist
specialist. The next day claimant went to see an orthopedist, Dr. Kirschenbaum.
The doctor told claimant she had broken ribs. Claimant explained that she was
in a great deal of pain still in her back, neck, chest, arm, shoulder and
. Claimant saw the orthopedist again a few days later.
During the summer of 2000, claimant missed approximable 3 ½ weeks of work
which she estimates cost her about $1,500.00. Claimant described the four years
that she has been in college since the accident and leading up to the
Claimant testified that since the time of the accident, she has been unable to
sit for long periods of time. This has hampered her academic life. Claimant
is an architect student. As such, there is a tremendous amount of time she
needs to sit in front of a computer, at a drafting table or in a studio.
Claimant was unable to devote the time necessary without taking frequent breaks.
In addition to her academics suffering, claimant is not able to take part in any
physical activity - no sports, exercise, or golf with her father. Claimant was
a varsity athlete in high school and she can no longer participate in physical
activities. Consequently, claimant indicates that she has gained approximately
30 pounds since the time of the accident.
After claimant's sophomore year in college, she went back to Dr. Kirschenbaum
because she was still experiencing pain in her back and neck. She received a
cortisone shot in her neck, and underwent a bone scan and an MRI.
The doctor examined her and prescribed an anti-inflammatory medication.
Claimant also went for seven physical therapy
Claimant was also given a back
brace which she still wears from time to time.
Claimant testified that she had not suffered any injuries prior to this
accident and has not been in an accident since this accident.
Dr. Ira Kirschenbaum, claimant's orthopedist, also testified. The doctor
testified that he initially saw claimant on June 27, 2000, a few days after her
accident. While the x-rays of claimant's ribs showed no fractures, the doctor
stated that there were definite rib fractures. The doctor made this diagnosis
based upon the crunching he heard when pushing on claimant's ribs. He explained
that it was possible for the fractures not to show on the x-ray. His exam also
revealed that claimant's chest was tender. The doctor saw claimant again on
July 6, 2000. Claimant had the same symptoms. The doctor testified that
claimant needed time to rest and heal. He did not prescribe any active
treatment and saw no reason to bring her back to his office.
Dr. Kirschenbaum next saw the claimant on May 16, 2002 in his office. She had
complaints of pain in her cervical spine, neck and lower back. A physical exam
revealed claimant had increased scoliosis; tenderness in left trapezius and
lower spine; claimant experienced left side pain on all motion of the
lumbosacral spine; left cervical spine trigger point; and arthritis of the
spine. Dr. Kirschenbaum indicated that the scoliosis was genetic and not
related to the accident. The remainder of claimant's injuries were causally
related to the accident according to the doctor. Dr. Kirschenbaum gave claimant
a cortisone shot in the trigger point to relieve the pain. In addition, the
doctor sent claimant for a bone scan and an MRI. The bone scan was normal. The
MRI showed that there was degenerative disease of the disk at L5 - S1, with a
herniation of the disk and a disk bulge at L2 - L3.
Dr. Kirschenbaum stated that claimant's injuries are permanent and progressive,
meaning that they will worsen in time. Claimant will need future medical care
and is a high risk for future back surgery. Claimant's injuries are directly
attributable to the accident on June 24, 2000 at Jones Beach State Park.
The cross-examination of Dr. Kirschenbaum confirmed that the diagnosis of the
rib fractures was not based on the x-ray and that the only medication given to
claimant was the anti-inflammatory in May 2002.
Defendant presented no testimony as to claimant's damages.
The Court accepts the findings, diagnosis and prognosis of Dr. Kirschenbaum.
In addition, the Court is mindful of the pain and limitations to which claimant
testified. Claimant is awarded $75,000.00 for past pain and suffering,
$150,000.00 for future pain and suffering and $1,500.00 for lost wages for a
total award of $226,500.00. Interest on the award is to run from the date of