New York State Court of Claims

New York State Court of Claims
CRUZ v. THE STATE OF NEW YORK, # 2018-029-084, Claim No. 128602


After a trial on liability for infant claimant's injuries sustained in a fall at the Franklin D. Roosevelt State Park pool, the court found defendant not liable for negligence and dismissed the claim.

Case information

UID: 2018-029-084
Claimant short name: CRUZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128602
Motion number(s):
Cross-motion number(s):
Claimant's attorney: THE NOLL LAW FIRM, P.C.
By: Anthony Genova, Esq.
By: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 14, 2018
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


In this claim for negligence, Paula Cruz alleges that her infant son, Anthony Martinez ("Anthony"), was injured on July 17, 2016, after tripping and falling over a backboard near a public pool in Franklin D. Roosevelt ("FDR") State Park in Yorktown Heights, New York.(1) Anthony was ten years old at the time of the incident. A trial on the issue of liability was held on July 9, 2018.

Anthony provided the only testimony in support of the claim.(2) The court admitted the following three claimant's exhibits on stipulation: two photographs of the accident area (Exhs. 1 and 2); and a Patron Accident Report (Exh. 3).

Defendant presented two witnesses, Lucas Hendrickson and Dylan Ruskstuhl, both lifeguards at the FDR State Park pool on the day claimant was injured. The following State exhibits were admitted on stipulation: FDR State Park Emergency Action Plan (Exh. B); New York State Office of Parks, Recreation and Historic Preservation Water Safety Manual (Exh. C); map of the pool (Exh. D); photographs of the pool (Exhs. E-F, I-K); a Patron Accident Report (Exh. L); Swimming Pool Monitoring Report (Exh. N); Daily Report on Swimming Operation (Exh. O); Lifeguard Skills Training Report (Exh. P); photographs of a child and an adult backboard (Exhs. Q-R); deposition transcript of Paula Cruz (Exh. S); deposition transcript of Anthony Martinez (Exh. T); and deposition transcript of Fabio Martinez (Exh. U).

Fabio Martinez was subpoenaed by both claimant and defendant to testify at trial as a mutual witness, but Mr. Martinez did not appear. Pursuant to CPLR 3117 (a)(3)(iv), the court admitted the deposition transcript of Fabio Martinez (no relation to claimant) into evidence at trial (Exh. U). The parties stipulated that Anthony's mother, the guardian claimant, did not witness the accident.

Anthony Martinez testified that he is twelve years old and was ten at the time of the accident.(3) On July 17, 2016, he entered the FDR State Park pool and stayed in the pool for approximately two hours. At first he was with his mother and his cousin, but they left at some point. At about 3:30 p.m., he heard the lifeguard blow the whistle and instruct people in the pool to get out. He exited the pool and saw an injured boy lying on the deck with lifeguards caring for him. According to Anthony, he stood around "looking at the kid." Lifeguards were telling people to stand away from the injured boy, and to move back. Anthony asked his friend "Coco" if he saw what happened. Coco and Coco's father, Fabio Martinez, were standing next to him. He saw yellow police-style tape to keep people back.

Anthony then testified that he took a few steps back and fell over a stretcher that had been left by one of the lifeguards. The lifeguard helping the injured boy came right over to help him. At his deposition, Anthony testified that after he fell, a lifeguard left his lifeguard station chair, came over to him, and took him to the "house." Anthony got a Band-Aid and then his mother arrived. He identified the backboards (stretchers) depicted in State exhibits Q and R as the same style as the one he tripped over, and explained the markings he had made at his deposition (see Exh. T) on a photograph of the pool area (see Exh. 2). There is a circle around a small ladder in the pool, which Anthony used to get out. A dot to the left of the ladder represents the injured boy on the deck near the pool. Another circle, a little to the right and back from the boy, represents where Anthony was standing, and a line a little behind Anthony represents the stretcher.

On cross-examination, Anthony testified that his mother and cousin left him in the pool alone and he found a friend to play with. When he exited the pool via the ladder, as did Mr. Martinez and Coco, he did not go to find his mother. He saw lifeguards around the injured boy. Other lifeguards came with a stretcher. He was "curious," so he went to see what had happened, and stood in back of two or three people in the group around the injured boy. He was asking others around him if they knew anything. After the lifeguards told him two to three times to step back onto the grassy area, he stepped back and fell over the stretcher. He was still looking at the injured boy when he moved back.

Claimant made a motion to conform the pleadings to the proof and the court reserved on the motion. After claimant rested, defendant made a motion to dismiss based on failure to establish a prima facie case of negligence, arguing that no evidence was presented by claimant that proper procedures were not adhered to by the lifeguards. The court reserved on the motion.

Lucas Hendrickson testified that he was in his third season as a lifeguard at FDR State Park on July 17, 2016. Lifeguards occupying a lifeguard chair are not supposed to respond to the accident scene. Lifeguards in lifeguard chairs have to keep watching patrons in the pool. Pursuant to the Emergency Action Plan ("EAP"), lifeguards are to take two backboards (generally one adult and one pediatric) to the victim (see Exh. B.9). There is no directive in the EAP about where to place backboards, but it is standard operating procedure to place them within a few feet for easy access to the victim. The backboards do not have wheels (see Exhs. Q and R).

On the day of the incident, he responded to the scene within about ten seconds after the trauma whistle. After he arrived, the lifeguards started to clear the pool. They blew the whistle, told everyone to get out of the pool, and in a very direct voice, to move to the grassy area. Lifeguard Stan Torres brought the pediatric backboard, then went back to retrieve the adult one. After Torres handed the pediatric backboard to him, Mr. Hendrickson placed it behind the victim within his reach.

When Mr. Hendrickson got to the scene, another lifeguard named Marcellus Brinkerhoff was already assisting the injured boy. Mr. Hendrickson helped with stabilizing the injured boy on the backboard while other lifeguards tried to control the crowd by forming a line around the boy. No tape or rope was used to secure the area where aid was being administered. An ambulance arrived and a stretcher with wheels was placed on the deck. The ambulance was not called for anyone other than the injured boy he helped to stabilize. Mr. Hendrickson was on the pool deck from the time the trauma was called until the ambulance arrived. He did not see anyone fall that day, and he had no knowledge of Anthony's accident.

On cross-examination, Mr. Hendrickson testified that he ran directly to the injured child after the trauma whistle, and was focused on him.

Dylan Ruskstuhl testified that he works as the seasonal Chief Supervising Lifeguard at FDR State Park. He described the guidelines for emergency situations set forth in the Emergency Action Plan (Exh. B), and the policies and procedures in the Water Safety Manual (Exh. C). Mr. Ruskstuhl explained that lifeguards working at the Park are trained to follow these guidelines, policies and procedures, which provide that: lifeguards do not come down from their chairs unless they are replaced by another lifeguard; on witnessing a patron in need of rescue, a lifeguard initiates an emergency response with one long whistle, and makes a "T" with his or her arms if there is a suspected trauma; responding lifeguards bring a child backboard and an adult backboard; if a patron is injured, a supervisor initiates the clearing of the pool; patrons are told to exit the pool via megaphone and direction from lifeguards on the deck to exit and move back to the grassy area; police-style tape is used only to close the diving board; and lifeguards are not permitted to touch patrons, so they use a firm voice in directing them to keep back from the injured person.

On the day of the accident here, Mr. Ruskstuhl was the supervisor. He recalled that: the emergency whistle was sounded, the trauma sign was made, and patrons were directed to exit the pool and move back; the backboards were placed within five or six feet of the injured boy; the lifeguards began setting up a perimeter; an ambulance that was called drove onto the pool deck and a stretcher with wheels was placed near the injured boy; at the time, there were still patrons near the boy; there are always patrons who want to get close to take videos and pictures; and the lifeguards followed procedure that day.

Mr. Ruskstuhl did not witness Anthony fall. On cross-examination, he testified that he was in charge of crowd control and he had to cut through the crowd to get to the injured boy, and he learned of Anthony's accident at the end of the day during discussions with staff.

In its closing brief, defendant focused on the testimony from deposition transcripts admitted into evidence.

Anthony testified at his deposition (Exh. T) that: the stretcher was already at the pool when he got out; Mr. Martinez was in the water with him; Mr. Martinez was with him when he fell; the injured boy was not yet on the stretcher when he fell; he saw yellow police tape to keep people away. He also testified that: "they" put the stretcher down behind him after he got out of the pool; after he fell, a lifeguard left his lifeguard station chair, came over to him, and took him to the "house"; Anthony got a Band-Aid and then his mother arrived.

At his deposition (Exh. U), Fabio Martinez testified through a Spanish interpreter that he is not related to Anthony, that he knows him and his family, and his son goes to school with him. He was in the FDR State Park pool with his son when he heard the lifeguard whistle on July 17, 2016. They were all told to get out of the pool but not where to go. After he exited the pool with his son and Anthony, he saw lifeguards coming with a stretcher(4) . The lifeguards dropped the stretcher in front of him and Anthony, who was standing to his left, then went to help the injured boy. Three lifeguards stayed nearby. The stretcher started to roll towards them and he jumped over it, but it hit Anthony's leg and he fell, hurting his arm. Anthony was taken to a station. Mr. Martinez did not tell the lifeguards or park personnel that he had witnessed Anthony's accident, rather he alerted Anthony's mother. He denied seeing any police tape.

Mr. Martinez explained the significance of markings he placed on a photograph of the pool area (Exh. E at trial [deposition at Exh. A]). Facing the water from the deck, he placed an "x" to represent the injured boy in front of them, a line representing the stretcher, and dots representing him and Anthony behind the stretcher.

At her deposition (Exh. S), Paula Cruz testified that through a Spanish interpreter that while she was on the grassy area she could see her son Anthony in the pool; when the boy fell, the lifeguards blew the whistle and screamed for people to get out of the pool; she did not see Anthony exit the pool; she started to go to Anthony but people were blocking her; she saw him trip over the stretcher while the injured boy was lying on it; when she reached him he was standing and crying; a lifeguard had put a bandage on his arm and given him an ice pack; Anthony said he tripped over the stretcher and his arm hurt; the next morning she took Anthony to the hospital because he was crying, and it was determined that he had a broken wrist and needed surgery. Ms. Cruz also testified at her deposition that: the lifeguard gave her the bandage and an ice pack at a little house and told her to put it on Anthony; and she did not think it was necessary to call an ambulance for her son.

Claimant's burden is to prove the State was negligent in its maintenance of the FDR State Park pool, by a preponderance of the credible admissible evidence. In determining whether claimant has met that burden, "the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Cody v State of New York, UID No. 2015-040-009 [Ct Cl, McCarthy, J., Feb. 25, 2015]; see also Shirvanion v State of New York, 64 AD3d 1113 [3d Dept 2009]). To prove negligence, claimant must establish that the State owed him a duty of care, breached that duty, and the breach proximately caused the claimed injury (see Akins v Glens Falls City School Dist., 53 NY2d 325 [1981]; see also Buckley v State of New York, UID No. 2011-039-259 [Ct Cl, Ferreira, J., Oct. 14, 2011]).

As a landowner, the State is charged with the duty of maintaining its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Basso v Miller, 40 NY2d 233 [1976]; see also Preston v State of New York, 59 NY2d 997 [1983]). To establish a breach of that duty, claimant must prove: the existence of a hazardous condition that the State created or had actual or constructive notice existed; the State failed to act reasonably to remedy the condition; and the condition proximately caused claimant's injury (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see also Gill v Town of N. Hempstead, 83 AD3d 777, 777-778 [2d Dept 2011]; Byrd v State of New York, 206 AD2d 449, 450 [2d Dept 1994]). The State is not an insurer of the safety of those using the property for recreational purposes (see Preston at 999; see also Waters v New York City Hous. Auth., 116 AD2d 384, 387 [2d Dept 1986], affd by 69 NY2d 225 [1987]). The mere happening of an accident does not render the State liable.

After listening to and observing the witnesses at trial, and considering the depositions and other admitted exhibits, the court has determined that claimant has failed to prove, by a preponderance of the credible evidence, that defendant should be held liable for his claimed injury. Anthony was twelve-years-old when he testified and he appeared to understand the difference between telling the truth and lying. The court found him to be capable and well spoken, and credible in that he appeared to believe his memory of what happened was accurate. However, Anthony's testimony about what happened differed markedly from the testimony of both Mr. Martinez and his mother, leaving the court with three divergent versions of the accident: in Anthony's, the backboard was behind him and he tripped over it stepping back; in Mr. Martinez', a stretcher in front of them rolled and hit Anthony in the leg causing him to fall; and in Ms. Cruz', her son tripped over a stretcher already occupied by the injured boy.

Anthony's testimony is also inconsistent, and contradicted by other evidence in material respects. He testified that he saw yellow police tape to keep people away from the injured boy, but the two lifeguards presented by the State testified that yellow tape is only used to close the diving board. He testified at his deposition that a lifeguard came down from his chair to help him, which the State's witnesses and exhibits established would have been contrary to the conditions of employment (see Exhs B at 10 [Emergency Action Plan], and C [Water Safety Manual]). Then he testified at trial that the lifeguard helping the injured boy was the one who came to his aid. While the court does not believe that Anthony was being deliberately deceitful, the inconsistencies throughout result in his testimony carrying little evidentiary weight.

Even if the court were to accept Anthony's version of the accident as definitive proof that the lifeguards put a backboard down behind him, doing so would have been reasonable under the circumstances; there was a traumatic injury requiring emergency medical attention, and claimant was in the way. Testimony from the State's witnesses, both lifeguards who responded to the scene, indicate the lifeguards followed protocol and brought both an adult and a pediatric backboard to the scene, and both backboards were kept within five to six feet of the trauma injury. The lifeguards' supervisor testified that his job was traffic control and crowd dispersion and he stated many times that "no one was listening to us." While it is quite normal for a ten-year-old to be curious about an incident, that does not make the State negligent when they were properly responding to a traumatic injury requiring medical attention. Claimant did not present prima facie evidence that defendant breached its duty of care.

In reality, the only possible negligence involved in this matter would be that of the adult who was supposed to be supervising Anthony. In depositions, Ms. Cruz testified that she left Anthony in the pool, and Mr. Martinez testified that he and his son were with Anthony in the pool and on the deck. However, there is no evidence that Mr. Martinez was supervising the boy, and the evidence indicates he was also disobeying the lifeguards' initial orders to move back. In any event, the point is moot due to the court's finding of no negligence by defendant.

The court finds defendant not liable for negligence, dismisses Claim No. 128602, and denies as moot claimant's motion to conform the pleadings to the proof, and defendant's motion to dismiss. The Clerk of the Court is directed to enter judgment accordingly.

September 14, 2018

White Plains, New York


Judge of the Court of Claims

1. Ms. Cruz is claiming on Anthony's behalf.

2. Anthony testified that he knew the difference between telling the truth and a lie.

3. As the trial transcript was not ordered, testimony is summarized from the audio recording of the trial.

4. Presumably meaning the backboard.