Berger v. State

33 Misc. 2d 901, 227 N.Y.S.2d 279, 1962 N.Y. Misc. LEXIS 3444

• Court: New York Court of Claims
• Decided: April 25, 1962
• Docket: Claim No. 34109
• Status: Published

Opinion

Richard S. Heller, J.

This is a claim for permanent injuries suffered by the infant claimant when he was struck on the back of the head by the knee of a lifeguard at Jones Beach, a State-owned facility, on July 15, 1956, at about 1:20 p.m.

The infant, accompanied by his father, mother and some friends, had gone to the beach for a day’s recreation. After lunch the infant was digging a hole in the sand when the lifeguard came running from the water returning to his station. The boy was sitting in the shallow hole and was bent forward digging with his back to the water. The lifeguard attempted to hurdle over him at the same time that the boy straightened up. The result was the contact of the lifeguard’s knee with the back of the infant’s head.

Mitchell was knocked unconscious and was removed to the first-aid station. The boy recovered temporarily and then lapsed into unconsciousness again. He was then taken by ambulance to a hospital for examination and was discharged in a short time after the examination without treatment.

The following day the infant complained of headaches, nausea and difficulty with his eyes. Sometime later his mother became concerned because of his complaints and took him to a doctor for examination. On July 23, 1956, he was admitted to the New York Polyclinic Medical School and Hospital for various tests. He was discharged on July 28,1956.

None of the attending doctors were called upon to testify at the trial. In their place a doctor, basing his opinions on the hospital records, answered hypothetical questions and testified that in his opinion the infant had suffered brain damage.

At the time of the accident the infant was 7 years of age; at the time of the trial he was 12 years of age, attending a progressive school and doing two years of academic work in one year.

It is the opinion of the court that the lifeguard was negligent and that the infant was free of any contributory negligence.

Hospital and medical bills amount to $985.88. Claimant Irwin Berger is entitled to an award in the sum of $985.88. Mitchell Berger, by Irwin Berger, his guardian ad litem, is entitled to an award in the sum of $2,500.