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Keywords

plaintiffliabilityappealsustained
plaintiffdefendantdamagessustained

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Herman v. State, 63 N.Y.2d 822, 472 N.E.2d 24, 482 N.Y.S.2d 248

Facts

On August 4, 1976, the plaintiff and three friends went swimming at Jones Beach, a location the plaintiff had visited multiple times that summer. While swimming, the plaintiff executed a surface dive and struck a submerged sand bar that was not visible from the surface, resulting in serious injuries. The Court of Claims found that the State had a duty to warn about the unusual sand bar activity, which was not known or obvious to an ordinarily intelligent person, but the Appellate Division disagreed, stating that the natural and shifting nature of the sand bars made any warning impractical.

On August 4, 1976, plaintiff and three friends went swimming at the West End No. 2 section of Jones Beach… His head struck a sand bar not visible to him from the surface, and he sustained serious permanent injuries.

Issue

Did the State have a duty to warn swimmers about the submerged sand bars at Jones Beach, and could it be held liable for the injuries sustained by the diver?

Did the State have a duty to warn swimmers about the submerged sand bars at Jones Beach, and could it be held liable for the injuries sustained by the diver?

Rule

To be liable for failure to warn of a dangerous condition, a property owner must have notice of the condition and the unreasonable risk it creates. The existence of a natural, shifting condition does not automatically impose a duty to warn.

To be liable in damages for failure to warn of a dangerous condition, a property owner must have notice of the condition itself as well as the unreasonable risk it creates.

Analysis

The court analyzed whether the State had a duty to warn about the sand bars, considering the natural and highly transitory nature of the condition. It concluded that the State could not have anticipated a danger to swimmers based solely on the existence of the sand bars, especially given that the beach was frequented by millions and the State had not been placed on notice by previous incidents.

Here, defendant could not anticipate a danger to swimmers simply from the existence of the natural, shifting condition of sand bars in the ocean… defendant was not placed on notice of a danger by virtue of three similar incidents over the preceding 24 years.

Conclusion

The Court of Appeals affirmed the Appellate Division's decision, concluding that the State had no duty to warn about the sand bars and could not be held liable for the diver's injuries.

Order affirmed, with costs, in a memorandum.

Who won?

The State prevailed in the case because the court found that it had no duty to warn about the natural and shifting condition of the sand bars, which made liability for the diver's injuries untenable.

The Appellate Division reversed and dismissed the complaint, refusing to impose a duty to warn, both because of the natural, highly transitory character of the sand bars, making any warning impractical and of little value…

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