54 Misc. 2d 448 | New York Court of Claims | 1967
The claim herein was brought for personal injuries sustained by the infant claimant on August 22, 1963, at Belleayre Mt. Ski Center in Highmount, Ulster County, New York; and, for the related medical expenses and loss of services sustained by her father. Said personal injuries were allegedly caused by the negligence of the State of New York in the operation of the aerial chair lift at said ski center. The title of the claim was amended during the trial to reflect the marital status of said infant claimant as of February 28, 1966. The claim was duly filed.
The chair lift was 2,950 feet in length with a vertical rise of 783 feet. The individual double chairs were suspended from a continuous cable which was moored on 19 metal towers and 2 terminal structures. The chair lift was attended by three State employees, one at the base terminal and two at the top terminal. During August, 1963," and specifically on August 22, 1963, the operating hours for the chair lift and passengers were between 9:30 a.m. and 5:50 p.m.
The chairs on the lift were double chairs, so that two persons could sit adjacent to one another. Each chair, however, was an individual unit with a safety bar and footrest. "When the lift cable was placed in motion at 9:30 a.m., it operated continuously, unless shut down for an emergency, until the lift was closed for the evening at about 6:00 p.m.
Claimants’ counsel contended that the State assumed the status of a common carrier in its operation of said chair lift; and, consequently, owed the infant claimant the duty “ to use the utmost foresight as to possible dangers and the utmost prudence in guarding against them.” (Vogel v. State of New York, 204 Misc. 614, 620.) The common carrier doctrine was followed in Grauer v. State of New York (15 Misc 2d 471, affd. 9 A D 2d 829) and Battalla v. State of New York (26 A D 2d 203). However, all of the above decisions involved aerial chair lift accidents which occurred prior to April 23, 1963. At the legislative session of 1963, subdivision 9 of section 2 of the Public Service Law was amended, effective April 23, 1963, to provide that ‘ ‘ The term ‘ common carrier ’ * * * includes * * '* any such agency for public use in the conveyance of persons or property within this state other than by use of ski tows and other passenger tramways operated at ski centers ”, As the incident herein occurred on August 22,1963, we are bound by said legislative amendment and find that the State was not a common carrier in the operation of said chair lift. However, we also find that the State owed claimants the duty to exercise reasonable care in the operation of said chair lift. As stated in Grauer v. State of New York (9 A D 2d 829, 830): “In view of the fact however that the lift was a constantly moving device it is obvious on the face of it that the State owed a duty to use every reasonable care to see to it that each passenger
On August 22, 1963, Ruth Friedman was 16 years of age and had been reared in the Hebrew faith by parents who adhered to ultra-orthodox tenets. She had been educated in Yeshiva schools and her own religious adherence included a strict observance of the laws, traditions, and customs of the Hebrew religion. She had completed her sophomore year in high school and was in good physical and mental health. She was athletically inclined and in the Summer of 1963 was employed as a counsellor and lifeguard at Camp ■Shiroh, an Orthodox Jewish children’s camp located at Parksville, Sullivan County, New York. She had one day off a week which she generally spent with a Jack Katz, 19 years of age, and another counselor. As August 22 was her day-off, she and Jack Katz decided to take a picnic lunch and drive to Belleayre Mt. Ski Center for an afternoon of sightseeing. The other counselor could not accompany them on that date. They arrived at Belleayre in the early afternoon and, after parking the car, walked to the chair lift terminal at the base of the mountain. Mr. Katz purchased two round-trip tickets and they ascended the mountain via said chair lift. At the trial, both Miss Friedman and Mr. Katz testified that no one advised them at the base terminal or at the apex terminal that the lift operation closed for passenger traffic at 5:50 p.m. Both of them denied observing any signs advising the hours of operation of the ski lift for passenger traffic. However, at the examination before trial of Miss Friedman conducted on October 9, 1965, she stated that she knew the closing time was 5:30 p.m. because of “ the sign”. However, she could not remember whether she or Mr. Katz saw the sign; or, whether the sign was at the top or bottom of the mountain.
After arriving at the top of the chair lift, they walked away from the ski lift area, through the picnic area to an area, where they were out of sight of the ski lift terminal, and had their picnic lunch. They then wandered around the area sight-seeing. Miss Friedman testified that it started to become colder, she was dressed in a cotton skirt, light blouse, and sneakers, and that she thought she looked at her watch and, as it was about 5:10 p.m., she said they should go back down the mountain. Mr. Katz thought it was about 5 -.30 p.m. when they decided to go back down the mountain. It took them about 10 to 15 minutes to walk to the chair lift area. When they arrived there, they found it deserted but the chair lift was still in operation. Mr. Katz suggested that they walk the trial down but Miss Friedman was cold and tired and, as they had purchased round-trip tickets,
Claimants called Rabbi Herschel Stahl to testify as an expert witness on the Hebrew law and the orthodox interpretation and observance of said law. The Rabbi knew Miss Friedman and her family and he knew that she had been reared in an orthodox observance of her faith. Rabbi Stahl advised the court that under the Hebrew law, the Shulchcm Arukh, there is a specific law, the Jichud, which absolutely forbids a woman to stay with a man in a place which is not available to a third person. To violate this Jichud would be an overwhelming moral sin which would not only absolutely ruin this young girl’s reputation but also the reputation of her parents. It was his opinion that a girl who had been trained in a 100% orthodox home, as Miss Friedman was, might go even to the lengths of jumping to her death to avoid violation of the Jichud. The court was treated to a skillful, albeit rather vehement, cross-examination of Rabbi Stahl. It led us to the conclusion that, while a member of the liberal or conservative wings of Judaism might disagree with the Rabbi’s interpretation of Hebrew law, it was entirely within the realm of possibilities,' that a 100% orthodox member of Judaism, which Miss Friedman was, would agree with said interpretation. It appears to the court that the point is not whether Rabbi Stahl gave us an
In an effort to extricate herself from this situation, Miss Friedman worked her way out of the chair to a position where she was holding onto the bottom of the chair. Her next recollection was that she found herself on the ground. When she was able to get to her feet, her face was covered with blood and she was in pain. She worked her way up the mountain to the terminal lodge and broke into the lodge to use the telephone, but the phone was dead. She then struggled down the mountain to the intermediate cabin and broke into that building to use the telephone, but the phone was dead. She then made her way down the mountain to the base lodge where she again broke in and this time found a telephone in working order. She telephoned the State Police who sent help to the lodge. The chair lift was placed in operation, Mr. Katz brought down and Miss Friedman was taken to a physician for first aid.
The State moved to dismiss the claim on the grounds that the claimants had not sustained their burden of proving negligence on the part of the State; and, that Miss Friedman had been contributorily negligent. We .reserved decision on said motion. We now deny said motion.
The State’s witnesses testified there was a sign at the base of the mountain which indicated that passengers would not be loaded to go up the mountain after 5:30 p.m. At the trial, the infant claimant did not remember seeing any such sign but, as stated previously, she did state at her examination before trial that she knew the closing time Avas 5:30 p.m., because either she or Mr. Katz saw a sign which so indicated. Obviously, this must have been the sign but we do not consider it had any relevancy to the policy of loading passengers at the top of the mountain; or, to the issues in this claim. Both Miss Friedman and Mr. Katz stated they were not told they had a 5:50 p.m. deadline to meet if they wished to ride down the mountain; and, they were
The first step in the procedure for closing the lift in the evening was for the attendant at the base terminus to telephone the summit attendants and advise them that no more passengers would be on the lift, after the passenger in a certain numbered chair. After those passengers alighted, the two attendants at the top were supposed to inspect the top of the mountain to determine whether any other tourists or sightseers were on the mountain. On August 22, the attendants searched the area to the right of the mountain but not to the left. One attendant did ask a man who came from the left area, where the infant cláimant was, whether he saw anyone in that area. This man said 11 No ” and the attendant accepted this and did not inspect said area. We consider this a negligent performance of duty. There was a loudspeaker mounted at the apex terminus. It could be heard all over the mountaintop but it was not used to announce that the lift was closing down for the night. We consider this a negligent performance of duty.
At about 5:50 p.m., the two apex attendants boarded the chair lift. Mr. Aley, one of the attendants, stated that, as was his custom, he looked over his shoulder to observe whether any passengers got on the chair lift after the attendants. He could see the chair lift loading platform until he reached tower 7. However, because of the contours of the mountain, there was a blind spot from tower 7 to tower 16, where one could not observe either the top or the base loading platforms. There was sight distance from the base to the apex loading platforms. We consider that the State’s witness admitted the expectable possibility that passengers could and would load onto the chairs
The State contended that the fencing and signs at the summit loading platform were sufficient to protect against passengers loading on the chair lift when attendants were not present. However, this contention does not withstand scrutiny. There was a log type fence around the loading platform with an entrance gate, about 4 feet wide, leading onto the loading platform. There was a rope to stretch across this opening; and, there was a sign in the center area of the chair lift which faced this opening and which stated, “No loading without attendant.” Mr. Aley thought he had put up the rope barrier but he could not be positive that he had done so. However, and more importantly, there was an 18 feet wide gap in the fence area traversed by the chairs. We do not recollect testimony relative to the spacing between double chairs. However, from the photographs, Exhibits 1 ‘ BB ’ ’ and “ E ”, we estimate there was about 50 to 60 feet between chairs. It thus became possible, with safety, to walk through the 18 feet wide gap onto the loading platform, with the loading sign to one’s left and not in the direct line of sight, and to load onto said chairs; which is what these two young people did. We find that to leave this gap in the fencing, while the lift was operating without attendants, was negligence on the part of the State. Further, we point out that even if these young people had seen the sign, which they did not, they were not injured while loading onto the lift. So that if we found them contributorily negligent in this aspect, which we do not, the effects of such negligence had been dissipated and they were safely on their way down the mountain when the chair lift was stopped leaving them suspended in a precarious position.
It is our opinion, and we find, that the State did not exercise reasonable care to protect this infant claimant. There were no fixed safety standards for the operation of aerial chair lifts in New York State in 1963. However, the manager of the ski area was familiar with the Safety Code for Aerial Tramways,
(c) “ * * An attendant shall be on duty at all loading and unloading areas during operation of the tramway.”
(d) “ * * * An attendant shall be on duty at the power end of the tramway during its operation. An additional attendant at the end opposite the power end shall be provided if the length of the tramway exceeds 800 feet or if the attendant at the power end is unable to observe each passenger clearly at all times during his travel from the loading point to the highest unloading point of the tramway.” (12 NYCRR 32.51 [c], [d].)
We consider these rules of 1965 to be merely a codification of what common sense and ordinary reasonable care required of the State, or any other tramway operator, in 1963. We find that the State was negligent in the operation of said chair lift; and, that said negligence was the proximate cause of the injuries sustained by the claimant herein.
For the reasons set forth above, we find that infant claimant was free from contributory negligence. If the claimant had been an adult, we still would find freedom from contributory negligence. In evaluating the issue of contributory negligence, as it related to this infant, the fact of freedom from negligence is even more evident when we consider her age, judgment, experience, and education. The State’s negligence placed this 16-year-old girl in an untenable position. As stated in claimants ’ brief, ‘ ‘ In that type of situation, the famous dictum of Mr. Justice Cakdozo that ‘ danger invites rescue ’ might well be adapted into ‘ peril invites escape ’.”
The State Police brought Miss Friedman to a Dr. Rottkov for emergency treatment. The doctor found that she had sustained a .severe laceration of the nose and a possible fracture. He performed emergency first aid and treated her for shock. Subsequently, she was removed to the Liberty Maimonides Hospital where she remained from August 23, 1963 to September 2, 1963. She was confined to bed until August 26, 1963. The diagnosis at said hospital was (1) compound fracture of the nose; (2) laceration, 1 1/2 cm., of the left eyelid; (3) whiplash injury of the neck with minimal forward slipping, C2 and 03; (4) anxiety with nightmares; (5) multiple bruises and abrasions
On March 18,1964, Miss Friedman testified that she ‘1 blacked out ” and fell on a subway platform in New York City. She went to Dr. Emanuel Dubrow, her family pediatrician, who treated her for a slight laceration of the right labia majora. Miss Friedman stated she again lost consciousness on May 15, 1964, while she was at school. She again went to Dr. Dubrow who made a tentative diagnosis of post-traumatic convulsive disorder and had her admitted to Beth Israel Hospital on the
The State’s expert, Dr. Drislane, was a board certified neurologist and an assistant professor in clinical neurology at Albany Medical Center. He examined Miss Friedman in March, 1967. After taking her history, which included a fainting spell about two months after said accident and six fainting spells in all, he performed a neurological examination and an electroencephalogram. He made no abnormal findings and the electroencephalogram was normal, as was the electroencephalogram taken in 1964. He also examined the X rays of the pneumoencephalogram taken in 1964 and found same to be normal. It was his opinion that Miss Friedman was not suffering from a post-traumatic convulsive disorder. Thus, we have two qualified experts in their fields disagreeing diametrically on the diagnosis related to this young lady, Standing alone, we would tend to accept the opinion of the attending physician as one who was closer to the case with more of an opportunity for observation. However, in response to the following question at the end of
“ Q. Is your opinion that she will be required to take Dilantin for the rest of her life based upon the fact that you are not sure that she has a convulsive disorder, and the better part of discretion requires that she continue to take Dilantin? A. That’s very accurately put, yes.” We find that claimants have not sustained their burden of proving that the infant claimant sustained a post-traumatic convulsive disorder as a result of the accident of August 22, 1963. We find that claimants are not entitled to be reimbursed for the medical and hospital expense of 1964 as they relate to Dr. Kirschenbaum, Dr. Dubrow, or Beth Israel Hospital. The State’s motion to strike testimony relative to convulsive disorder, upon which we reserved decision, is granted.
We find that the infant claimant sustained the facial injuries, as detailed above, and other diagnosed injuries, in the accident of 1963; that said facial injuries required the treatment of 1963 and 1965; we find that the infant claimant will require further surgery to rectify part of the slight remaining facial disfigurement caused by the "accident of 1963; we find that the infant claimant has two, facial scars which, upon our trial observation, have faded but are still perceptible; we find that the infant claimant suffered pain as a result of this accident; and, we find that the infant claimant suffers from headaches, irritability, and forgetfulness, which are related to the accident of 1963. We find that Mr. Friedman is entitled to reimbursement for medical expenses in the sum of $2,231.53. All of these expenses were incurred prior to February 28, 1966, the date upon which the infant claimant was married. Any expenses incurred after that date would be the problem of this emancipated infant and her new husband, even though she was separated from him at the date of this trial. We find that claimants did not sustain their burden of proving any loss of services incurred by Mr. Friedman as the result of the injuries to his daughter.
The infant claimant is awarded the sum of $35,000.00. The claimant Joseph Friedman is awarded the sum of $2,231.53.