New York State Court of Claims

New York State Court of Claims

McLOONE v. THE STATE OF NEW YORK, #2004-033-532, Claim No. 104555


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):

Claimant's attorney:
Wynne, Wynne, Seedorf & ScheldBy: Marc A. Seedorf, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Denis McElligott, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

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 run over.

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, 53 NY2d 325). Absent the breach of that duty, there can be no liability (Kimbar v Estis, 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 New York, 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 71 NY2d 802).
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 ribs
. 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 trial.[1]
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 sessions.[2] 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 this decision.

December 23, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]At the time of trial, claimant was a senior in college and expected to graduate on time.
[2]On cross-examination, claimant stated she only went to seven physical therapy sessions because her insurance would not pay for more.