A Beach Accident and a Life Changer

The True Tale:

Great composers and lyricists have the anointed gift of separating human emotions by turning their special creations into poetry. On point, and most recently, I saw a TV commercial announcing the future showing of an old movie filmed upon a hit Broadway musical. The film was “Annie”, based upon the popular and iconic Harold Gray comic strip, “Little Orphan Annie.” All the songs were charming with music and lyrics by the superbly talented Martin Charnin and Charles Strause. I saw “Annie” on Broadway when it opened almost a half century ago, and one beautiful song is still in my memory! Which one? “Tomorrow.”

The melody was magical. The lyrics, inspirational. I offer just the first stanza of “Tomorrow” so as to refresh the memory of those who might remember it, and for those who will read the inspiring words for the first time: “The sun will come out tomorrow. Bet your bottom dollar that tomorrow, there’ll be sun…” Where am I going with this “Tomorrow” stuff? Sadly, here’s the tragic story…

I’ll call him Billy (a fictitious name), who was all of 16 years of age. It was a beautiful summer day with a clear blue sky when he and three teenage friends decided to spend the day at a private beach owned and operated by the town in which they lived. What better way to enjoy relaxation and have fun? Soft white sand, clear bright sun and sparkling blue water making ripples of small waves that flowed to the surf and back!

Billy and his friends stretched out a blanket on the hot sand, placing a cooler of cold soft drinks and sandwiches on top. What could be better? “I’m going in the water first and then we can grab some sun before lunch.” That said, Billy started to trot towards the clear blue water, which turned into white foam as it hit the beach, with a light tide before returning to the main body of water. Maintaining his trot, he splashed his feet into the warm surf as many beach lovers do, and kept up his trotting pace until the water was up to his waist. Billy then dove into it—a refreshing action as a prelude to submerging himself. What happened afterward is the tragedy that follows…

When Billy dove into the water, his head violently struck a solid object. At that very instant, he felt as if a sudden bolt of lightening had attacked his entire body from head to foot. Unable to move, he cried out for help. Hearing Billy’s frantic screaming, his friends rushed into the waist high surf and carried Billy back to the sand. 911 was called. Within minutes, EMTs were at the scene. Upon examination, they could tell from Billy’s total lack of body response that he was severely injured. A rescue medevac helicopter was immediately called. It responded within minutes. Once on the ground, an emergency crew carried Billy’s limp body on board.

The ‘copter zoomed quickly to the nearest hospital where, after neurologically testing Billy, the sad news was reported to his parents and friends. Billy had suffered a significant cervical (neck) fracture and was given a disastrous diagnosis. The doctors reported that Billy was rendered a quadriplegic! His head struck something below the surface of the water and caused a most significant fracture of his cervical spine—a sandbar!

For many years, Billy was treated in various rehab facilities. He received quality care with years of therapy and training, so he was able to maneuver a specialized motorized chair that he could operate by blowing into a tube. As a quadriplegic, he was paralyzed from his neck down, including his arms. Already well into his twenties, his will to survive demonstrated a rare, bright, and even upbeat optimism. In fact, his amazing disposition carried over to other quadriplegics to whom he would always provide encouragement. His inspiring personality was so visible that he became a favorite of staff members, and particularly to one of his regular nurses. And like an emotional storyline of a Hollywood movie, they fell in love and ultimately became husband and wife.

Regarding the legal issues, Billy’s dad retained a lawyer friend to bring an action against the town. It soon became apparent, however, that although the lawyer was well-intentioned, the case, if there was one, was far beyond his ability or experience to pursue. And that’s when we were brought in.

The perplexing question our legal team had to face was, how could fault be attached to the town for the existence of a sand bar that was hidden below the surface of the water? But after intense investigation and deep research, we discovered the answer. And here is how we did it and what happened during the jury trial that, to the average lawyer, would have appeared almost impossible…

Through our research, we learned the geological science of how a sandbar is formed. Our study included such questions as whether certain climate, wind, water temperature, and other factors, could make a sandbar predictable during certain specific conditions.  Simply stated, sandbars are formed when wave currents pull sand from the beach back into the water mass.  Atmospheric conditions are a factor! Wind is a factor! The temperature of the water is a factor! The position of the sun is a factor! The size and force of the wave that hits the beach is a factor! The temperature of the air is a factor! The position of the moon during certain summer days is a factor! And more. Further, sandbars had formed at that beach during the same period of time when many of the named factors were in play. And we stressed during the trial that the town, through its beach supervisor, knew or with the exercise of reasonable care should have known that sandbars did form on its beach. And when created, the sandbars were hidden slightly below the surface of the water, and could be dangerous to swimmers!

To confirm our theory, we engaged a highly credentialed oceanographer as our expert witness. Having earned a Ph.D. in his specialty, he had devoted much of his academic research to how sandbars are formed. Without hesitation, he set out to the jury in layman’s language all of the factors set forth above. At the conclusion of his strong testimony, there was little doubt that the town, through its beach supervisor, should have tested the water for sandbars since he should have known of the possible danger that lurked below the surface of the water. Further, it was argued that he failed to warn swimmers of the existence of a dangerous sandbar that under the climate conditions existing at the time, he should have pursued an investigation. In fact, we called the supervisor as a witness, and under a strong examination he admitted that sandbars had formed in prior summer seasons, that he had full authority over the beach, and that he could even close it down if there was any danger in the water to swimmers. What started as an almost impossible case turned out to be one that the town finally ended by offering a fair and substantial settlement.

Back to “Annie” and that inspirational song, “Tomorrow.” Again, the first few lines: “The sun will come out tomorrow. Bet your bottom dollar that tomorrow there’ll be sun…” Billy is an inspiration to all. For him, the sun will always “come out tomorrow.” That’s the way he has lived his life following his tragic accident.

And for Billy and his devoted wife, you can “Bet your bottom dollar that tomorrow there’ll be sun.” End of story!

For the past thirty-five years, Finz & Finz, P.C. has litigated some of New York’s most complicated personal injury cases. Even when facing seemingly insurmountable odds, our trial team leaves no stone unturned—employing extreme effort and unbridled dedication to our deserving clients. In doing so, we provide the greatest opportunity for them to, in fact, see the sun come out “Tomorrow.”

The Message:

• “WHEN DARK CLOUDS DISAPPEAR AND BRIGHT SUN SHINES THROUGH, EVEN A MOST DIFFICULT WORLD CAN BECOME BRIGHTER”

Leonard L. Finz, age 96, is a decorated WWII veteran (1^st Lt., Field Artillery, Philippines), a former New York State Supreme Court Justice, Peer-Reviewed as “One of America’s Preeminent Lawyers”, and the Founder of Finz & Finz, P.C.