
    Robert Harrington, Claimant, v. State of New York, Defendant.
    (Claim No. 36129.)
    Court of Claims,
    April 30, 1962.
    
      McClung, Peters S Simon (Thomas J. Burke and Robert E. Simon of counsel), for claimant. Louis J. Lefkowitz, Attorney-General (Edward R. Murphy of counsel), for defendant.
   Richard S. Heller, J.

This claim asks damages for serious injuries received by the claimant when his head struck a submerged rock located in the bathing area of Hearthstone State Park on Lake George, Warren County, New York.

Claimant had gone to the pool with three friends for a picnic and swim on Sunday, June 29,1958. A service charge of 50 cents was paid which is the ordinary cost for each car admitted to the park.

Following the picnic the claimant, who had been to this bathing area before, decided to go swimming. He waded out from the sandy beach for about 20 or 25 feet where the water was waist high and ducked under, then took a shallow dive and his head hit a circular rock about 18 inches in diameter and 12 inches above the sandy bottom of the lake. He attempted to move the rock with his foot but was unable to accomplish the removal. Prior to the dive he did not see the rock which was submerged in front of him because the waves caused the water to be rough and choppy.

He returned to his picnic table to rest because his back hurt. Shortly thereafter he became dizzy and went home. The following day he went to the doctor and X rays revealed a fracture of the seventh cervical vertebra. He was hospitalized for about six weeks and wore a neck brace until October 10, 1958. He returned to his regular employment on September 4, 1958, although he was partially disabled.

The bathing area was a rather small sandy beach and a gradual slope from shore to the deeper area for swimming. The State provides lifeguards at the beach who patrol the underwater areas for obstructions and debris. Although the area of the accident was examined, no one ever encountered this large rock until claimant’s accident. The rock was still submerged in October, 1958.

Claimant was an invitee and the State owed' the duty of reasonable care to him when he went into the water and that care must extend to a common way for entering the water by shallow dives.

The court finds that there was a dangerous obstruction within the area designated for swimming and that the failure to remove the rock, or in the alternative to warn against the obstruction constitutes negligence by the State. (Roth v. State of New York, 262 App. Div. 370; Lawson v. State of New York, 207 Misc. 542; Piche v. State of New York, 202 Misc. 84; Violante v. State, Claim No. 35943, Court of Claims; Bensen v. Kristeller, 251 App. Div. 734, affd. 277 N. Y. 561.)

The court finds that the claimant was free of contributory negligence. There was nothing unusual in the manner in which he entered the water and he would not have been injured if the rock was not there.

Claimant’s special damages are $1,060.65 medical; $456 loss of wages. Claimant is entitled to an award in the sum of $9,600 for all damages, past, present and future.

The claim was duly filed and has not been assigned. The foregoing constitutes the written and signed decision of the court upon which judgment may be entered.  