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Herman v. State of New York

Court of Appeals of the State of New York
Oct 9, 1984
63 N.Y.2d 822 (N.Y. 1984)

Summary

In Herman v. State of New York, 63 N.Y.2d 822, 472 N.E.2d 24, 25, 482 N.Y.S.2d 248 (1984), the New York Court of Appeals examined the duty owed by property owners to warn of the existence of sandbars on the ocean floor and, on facts similar to this case, ruled that the State had no duty to warn of the "natural, shifting condition" of sandbars on the ocean floor.

Summary of this case from Brown v. U.S.

Opinion

Argued September 5, 1984

Decided October 9, 1984

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Gerard M. Weisberg, J.

Michael J. Grenthal and Michael J. Krakower for appellant.

Robert Abrams, Attorney-General ( Peter J. Dooley and Peter H. Schiff of counsel), for respondent.


MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

On August 4, 1976, plaintiff and three friends went swimming at the West End No. 2 section of Jones Beach, which plaintiff had frequented at least six times earlier that summer, and often before that. Plaintiff proceeded into the deepening water until it was waist-high, and executed a surface dive. His head struck a sand bar not visible to him from the surface, and he sustained serious permanent injuries. Allocating 50% of the responsibility to plaintiff's own culpable conduct, the Court of Claims entered judgment for plaintiff on the issue of liability, finding a duty to warn of a dangerous natural condition — unusual sand bar activity in that area, caused by the existence of a man-made jetty — which was not known or obvious to an ordinarily intelligent person but was known to defendant because of three previous accidents between 1952 and 1974. 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, and because plaintiff himself knew or should have known of any danger posed by the sand bars.

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. Here, defendant could not anticipate a danger to swimmers simply from the existence of the natural, shifting condition of sand bars in the ocean (cf. Preston v State of New York, 59 N.Y.2d 997) and, on a beach visited by millions of bathers, defendant was not placed on notice of a danger by virtue of three similar incidents over the preceding 24 years. Since defendant did not in these circumstances have a duty to warn, we do not reach the issue of causation.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

Order affirmed, with costs, in a memorandum.


Summaries of

Herman v. State of New York

Court of Appeals of the State of New York
Oct 9, 1984
63 N.Y.2d 822 (N.Y. 1984)

In Herman v. State of New York, 63 N.Y.2d 822, 472 N.E.2d 24, 25, 482 N.Y.S.2d 248 (1984), the New York Court of Appeals examined the duty owed by property owners to warn of the existence of sandbars on the ocean floor and, on facts similar to this case, ruled that the State had no duty to warn of the "natural, shifting condition" of sandbars on the ocean floor.

Summary of this case from Brown v. U.S.

In Herman, the Appellate Division also reasoned that the plaintiff knew or should have known of any danger posed by sandbars because he had frequented the area of the beach where his injury occurred approximately six times in the summer of his accident.

Summary of this case from Brown v. U.S.

In Herman v State of New York (63 N.Y.2d 822) it was said that such liability is only recognized where a property owner has notice of the condition of which a warning should be given as well as the unreasonable risk created by that condition.

Summary of this case from Roberts v. Town of Colchester
Case details for

Herman v. State of New York

Case Details

Full title:GLEN HERMAN, Appellant, v. STATE OF NEW YORK, Respondent. (Claim No…

Court:Court of Appeals of the State of New York

Date published: Oct 9, 1984

Citations

63 N.Y.2d 822 (N.Y. 1984)
482 N.Y.S.2d 248
472 N.E.2d 24

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