This is a timely filed claim for damages by Bhandath Seelal and Lalmani
Seelal as the natural guardians of Dhapne Seelal (hereinafter
“claimant”) based upon the alleged negligence of the defendant. The
bifurcated trial of this claim was held on August 10, 2006, on the issue of
On August 26, 2002, claimant went to Sunken Meadow State Park,
Kings Park, New York, with her father, Bhandath Seelal, and two cousins. They
arrived at the Park at approximately 6:00 p.m. Upon arrival claimant’s
father testified that claimant and her cousins took off their outer clothes and
went into the water immediately. Claimant’s father testified that he set
up the blanket by himself just to the right of the main lifeguard stand.
Claimant’s father testified that a couple minutes after setting up
and noticing kids throwing rocks he approached the lifeguards to complain. The
father testified that there were three lifeguards on the main stand. He spoke
to all three and said that two kids were throwing rocks and they should stop
them. The father indicated that the lifeguards paid no attention to him and
just laughed. Claimant’s father then began to return to his blanket. As
he returned to his blanket he testified that he did not see his daughter in the
water and he began to run towards the water. His niece was at the water’s
edge screaming and pointing at the claimant in the water. Claimant’s
father stated that he asked the lifeguards for help and they did nothing.
Claimant’s father stated that someone from first aid came to the beach and
helped him get his daughter to the first aid station. He stated that after she
was cleaned up, they decided to leave because their time at the beach had been
On cross-examination, the father admitted that after the incident
he confronted the uncle of the two children that had been throwing
The father blamed the uncle for not watching the children.
recalled the event differently than her father. Claimant testified that she and
her cousins helped set up the blanket, then took off their outer clothes and
went down by the water. Claimant testified that she and her cousins waded in
until they got used to the water and then went further. Claimant stated that
she saw little kids skipping stones into the water and walked a little away from
them. While swimming in the water, claimant said she saw her father speaking to
someone but did not know who it was. Claimant did not say anything to either
the children or to the lifeguards about the rock throwing. After swimming under
water and starting to come up, claimant saw a little girl throw a rock which hit
her in the mouth. Claimant testified that she ran out of the water to her
father. He was sitting on the blanket and had not seen what happened.
According to claimant, she was four feet or more from the little girl when she
got hit with the rock. She had only been in the water about two minutes before
getting hit with the rock.
James Yodice testified on behalf of defendant.
He is a lifeguard and holds the rank of lieutenant at Sunken Meadow State Park.
He has been a lifeguard for 28 years. The witness was working on the date of
the incident and was sitting on the main stand. Yodice explained that the main
stand had two lifeguards on it and there were also two “wing” stands
open with one lifeguard on each. He described a wing stand as a stand off to
the east or west of the main stand, approximately 35 to 40 yards away. Yodice
testified that no one complained to him about rock throwing on the beach, at or
near the time of this incident. The witness recognized claimant’s father
from the date of the incident. According to Yodice, the father was causing a
commotion just to the left of the main stand.
The father was yelling about his daughter being hit with a rock by one of the
children and was upset because they were not being supervised by the adult with
them. Yodice got down from the main stand in an attempt to quell the situation.
Yodice signaled the main stand to call the main park office and have police sent
down to the beach. During his testimony, the witness stated that rock throwing
is not permitted and complaints about it are dealt with immediately.
municipality has a duty to maintain its parks in a reasonably safe condition
(Nally v County of Monroe
, 305 AD2d 1014). This duty entails providing
"an adequate degree of general, but not strict or immediate, supervision to
patrons who have been invited to avail themselves of park facilities or
recreation areas" (McAuliffe v Town of New Windsor
, 178 AD2d 905, 906;
see Caldwell v Village of Island Park
, 304 NY 268). The duty also
includes “not only physical care of the property but also prevention of
ultrahazardous and criminal activity of which it has knowledge”
(Benjamin v City of New York
, 64 NY2d 44). Small children skipping rocks
at the beach, with swimmers in the water, does not rise to the level of
“ultrahazardous and criminal activity”.
In the ownership of
property, the State of New York serves two functions. The first role casts the
State in a proprietary function and the other role is that of a governmental
function (Miller v State of New York
, 62 NY2d 506). In the State’s
governmental function, it "remains immune from negligence claims arising out of
governmental functions such as police protection unless a special relationship
with a person creates a specific duty to protect, and that person relies on
performance of that duty" (Price v New York City Hous. Auth.
, 92 NY2d
553, 557 - 558). Failure by a municipality to enforce a regulation, promulgated
for the safety of the general public, will not result in liability, unless
claimant can show a special relationship (Marino v State of New York
Claimant has failed to demonstrate that a special relationship
existed between her and defendant. Even if the Court accepts her father’s
testimony that he made a complaint about the children throwing rocks, this would
not establish a special relationship. Therefore, even if the lifeguards were
aware of the rock throwing, claimant is not entitled to recover damages based
upon defendant’s failure to enforce its regulation.
Court finds for the defendant and dismisses the Claim. The Clerk of the Court
is directed to close the file. All motions not specifically ruled upon are
Let judgment be entered accordingly.