The United States of America appeals from the November 19, 1986 judgment of the United States District Court for the Eastern District of New York (Weinstein, Ch. J.), finding it 30 percent liable under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (1982), for the injuries sustained by plaintiff Gregory Caraballo. Reversed and complaint dismissed.
Newman, Cardamone and Winter, Circuit Judges.
CARDAMONE, Circuit Judge:
This appeal by the government is from a judgment of 1.2 million dollars in favor of plaintiff awarded in the United States District Court for the Eastern District of New York (Weinstein, Ch. J.) following a bench trial. Plaintiff brought suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (1982), seeking damages for the injuries he suffered in an unfortunate diving accident in a national park. We reverse.
Six years ago on a hot July 25th Saturday afternoon what began as a clamming expedition for a group of friends at Gateway National Recreation Area in Brooklyn, New York, ended in tragic consequences for one of the group, the plaintiff, Gregory Caraballo. On that day Caraballo, who was then 39 years old, and three friends drove to Gateway Park, parked Caraballo's auto in a parking area just off the eastbound side of the Belt Parkway, and walked a quarter of a mile along a footpath to the beach. The party arrived in mid-afternoon when the tide was up. While waiting for it to do down, plaintiff decided to go swimming. Just offshore, about 10 feet from the beach, stood the remnant of an old pier. This wood piling consisted of two vertical boards, the left of which -- facing the water from the beach -- was two feet, four inches high. The vertical board on the right was four feet, five inches high. These two vertical pieces were connected by a horizontal beam, 22 feet long and one foot wide.
Plaintiff testified that others were wading, swimming and diving off this wood piling, so he decided to go in. It was then five o'clock in the afternoon. He said that he walked out to the left side of the piling in water up to his knees; the water was about two feet deep. After claiming onto the horizontal beam, which was just about awash at its left end, plaintiff stated that he walked along its 22 foot length to the right end. Caraballo drove head first into the shallow water, struck his head on the sandy bottom, and suffered the most serious kind of injury -- permanent quadriplegic paralysis.
As a result of this accident, Caraballo sued the government for negligence pursuant to the Federal Tort Claims Act. The trial court calculated his damages at $3.9 million, and having found plaintiff 70 percent negligent and the government 30 percent negligent, awarded plaintiff $1,170,808.50. In determining that the government was 30 percent negligent, the district judge concluded that the government had failed adequately to warn that swimming and diving were prohibited. He found that whatever signs were present in the area were insufficient to warn the public -- particularly the Hispanics who were heavy users of the area. The district court also credited plaintiff's witnesses who testified that there were inadequate patrols on the beach and found the wood piling to be an "attractive nuisance."
In its appeal from the judgment, the government contends that plaintiff's reckless conduct was the sole proximate cause of his injury, that it had no duty to warn the plaintiff about the wood piling, and that the "discretionary function exception," 28 U.S.C. § 2680(a) (1982), bars this suit.
In considering the government's arguments, we begin by observing that in waiving its sovereign immunity under the Federal Tort Claims Act, the United States is liable "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674 (1982). Under the Act, the law of the state where the trot occurred applies. 28 U.S.C. § 1346(b); Hatahley v. United States, 351 U.S. 173, 182, 100 L. Ed. 1065, 76 S. Ct. 745 (1956); Montellier v. United States, 315 F.2d 180, 185 (2d Cir. 1963). Because this incident occurred in New York, the law of that State controls.
A landowner in New York, such as the United States Park Service, must maintain its property in a reasonably safe condition under the circumstances. Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 (1976). To prove that the government was negligent in maintaining the beach where plaintiff was injured in Gateway Park, plaintiff was required to prove the existence of a duty toward him, a breach of that duty, and injury resulting as a proximate cause of defendant's breach of its duty. See Akins v. Glens Falls City School District, 53 N.Y.2d 325, 333, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981); W. Prosser, Law of Torts § 30 (4th ed. 1971).
A. Government's Negligence
The district court concluded that the government was negligent because whatever signs existed were not in Spanish in an area heavily used by Hispanics, and because the beach was inadequately patrolled, as indicated by the fact that for some time on the day of the accident no one had stopped people from swimming and using the beach. The signage requirement appears troublingly overly-broad to us and, as will be seen in a moment, is a conclusion that we need not rule on in this case. In response to the adequacy of its patrol, the government claims it is absolved of such negligence under the "discretionary function" exception to the Federal Tort Claims Act. See United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984) (certification of an airplane is discretionary function); Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953) (government not liable for results that come from its establishing plans, specifications, or programs implicating policy judgments); Wysinger v. United States, 784 F.2d 1252, 1254 (5th Cir. 1986) (Forest Service decision not to post lifeguard at site of fatal swimming accident absolves government under "discretionary function" exception). The discretionary function may not save the government from liability in this case because once it decides to act, it is responsible for its actions that are ...