By: Devon Reiff, Esq.
Back in May of 2006, a settlement was reached with the State of New York in which it agreed to pay $200,000 to my client, a woman who narrowly escaped being killed by a flying beach umbrella at Robert Moses State Park.
That story was carried by the New York newspapers including the New York Times on May 18. As the Times reported, Phyllis Caliano-Bahaj “was lounging on the beach on July 19, 1999, watching her son…and three friends play in the sand when the weather turned stormy and gusty. A 6-foot, 15-pound striped umbrella that was either being used by a lifeguard or rented by a beach patron flew up and struck her in the forehead, ‘like a torpedo,’ her lawyer said. The resulting gash needed 13 stitches, and she was left with permanent nerve damage to her neck and persistent pain.”
Before that settlement was reached, in November 2003, New York State Court of Claims Judge S. Michael Nadel had held the State fully responsible for the accident — regardless of who actually owned the umbrella — saying that there had been ample warning that the weather was turning stormy and umbrellas needed to be taken down or secured, and that it was up to the State to “safeguard its patrons.” Given the judge’s decision, a spokesman for the New York State Attorney General agreed that settling the case seemed “appropriate.”
At the post-settlement press conference, Ms. Caliano-Bahaj’s attorney, I stated: “Summer’s coming…[and] Believe it or not, beach umbrellas like this can be a real hazard to your health.” When those at the press conference seemed to take that comment in a less-than-serious way, I was “a little worried about the reaction,” and so I added, “It’s no joke.”
No joke, indeed. Since at least as early as 1932, the New York courts have recognized that pole-style beach umbrellas are not to be taken lightly in terms of the potential risks they present. In the case of Gerhardt v. Manhattan Beach Park, Inc., 237 A.D. 832, 261 N.Y.S. 185 (2d Dept. 1932), the Appellate Division, Second Department, affirmed a jury verdict in favor of a woman who was struck in the head by a large beach umbrella that had been blown into the air by the wind at a private beach in Brooklyn.
In its opinion, the court stated: “The facts sufficiently established that the danger of one of the large beach umbrellas being carried through the air by the wind and weather was or could have been known to the defendants in time to prevent what occurred. The claim that there was a failure to prove defendants’ ownership of the particular beach umbrella in question is not controlling in the light of the duty of the defendants, who conducted a place of entertainment or recreation to which patrons were invited on payment of an admission fee, to safeguard their patrons from danger which might reasonably have been anticipated. In the circumstances, the defendants were obligated to see to it that danger should be minimized to the extent that reasonably prudent men might foresee the necessity of doing so.”
The New York Court of Appeals affirmed the Appellate Division holding at 262 N.Y. 698, 188 N.E. 126 (1933). While much has changed in the 84 years between 1932 and 2016 in terms of what people wear to the beach and the activities they engage in once they are there, very little has changed in terms of the danger posed by beach umbrellas. They remain little more than unguided missiles just waiting to be launched haphazardly into the air or along the ground by a strong gust of wind.
Since cell phones now capture almost everything on video, a number of instances where several large beach umbrellas are shown blowing around populated beaches can be found on YouTube and other news sources under such titles as: (1) “Dance of the Umbrellas;” (2) “Beach Family Ignores Flying Umbrella;” and (3) “Flying Beach Umbrellas.”
For the most part, these occurrences are often perceived as more comical than serious with lifeguards or resort employees chasing the umbrellas along the beach or even into the water. However, as I observed at the press conference for my seriously injured client Phyllis Caliano-Bahaj: “It’s no joke.”Unfortunately, with all of the litigation-driven advances in technology and safety in motor vehicles, consumer products, construction practices and medical care, beach umbrellas have somehow escaped improvement.
Most beach umbrellas are still simply stuck into the sand or a sleeve in a weighted base where they are just one wind gust away from causing a catastrophe. Life guards, parks department and resort employees as well as members of the public continue to treat beach umbrellas as a harmless devices that shade people from the sun instead of the “hazards” I warned the public about over 10 years ago and the New York Courts identified as a “danger” as far back as 1932. Regrettably, none of this helped Lottie Michelle Belk on June 22, when she was at “her favorite place,” Virginia Beach “celebrating her birthday and a marriage anniversary.” As the Washington Post reported (as did many other news outlets): “A big gust of wind lifted a beach umbrella out of the sand, blew it down, and struck Belk in the torso. She later died at a Virginia Beach hospital.” The article went on to state: While incidents have happened with beach umbrellas, it is rare for one to result in a death, many local rescuers said. A man from Henrico County in Virginia lost his eye after a wind-blown beach umbrella struck him last year at Bethany Beach in Delaware.”
An emergency service worker said “from time to time, people get hit by flying umbrellas or flying debris.” But, he said, “I’ve never heard of someone dying.” (Well, now you have.) While plaintiffs’ trial lawyers are often depicted as the “bad guys” who encourage frivolous law suits designed to earn their clients undeserved recoveries and enormous legal fees for themselves, quite the opposite is true. It is really those attorneys alone who are willing to spend years of their time and risk huge sums of their own money to fund groundbreaking litigation for catastrophically injured (or dead) clients who have made motor vehicles, planes, trains and countless other products safer; doctors, hospitals and pharmaceutical companies more accountable; construction sites safer for workers; and municipalities more responsible for their police departments. That is what makes Lottie Michelle Belk’s death all the more tragic. From all accounts, this was a kind, gentle lady who simply wanted to celebrate her birthday and anniversary at the place she loved best, the beach.
Trial attorneys have long argued (and proven) the danger posed by beach umbrellas is very real and “no joke.” For that very reason, it is difficult to imagine why beach umbrellas are not fitted with some sort of device or tether that presents then from flying away as soon as it gets windy. Lifeguards, parks department employees as well as the people working at hotels and resorts should be trained to immediately take down these umbrellas (not simply fold them up) as soon as the weather turns windy (or threatens to). It is far easier to reopen an umbrella than it is to undo the injuries suffered by people struck by one of them. In the case of a death, there is simply no excuse for continued inaction.