Campbell v. Muswim Pools, Inc.

147 A.D.2d 977, 537 N.Y.S.2d 412, 1989 N.Y. App. Div. LEXIS 1292

Opinion

— Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiffs decedent was fatally injured when he dove into the four-foot-deep above-ground swimming pool owned by defendants Capaldo. Decedent was an experienced swimmer who was familiar with the Capaldo pool when he was injured during a game of “sharks and minnows”. Special Term denied defendant Esther Williams Pools’ motion for summary judgment with respect to plaintiffs cause of action alleging a design defect. Decedent dove either impulsively or deliberately into the Capaldo swimming pool. In either case, his conduct was the sole proximate cause of his injuries (see, Smith v Stark, 67 NY2d 693). Under the circumstances, defendants were entitled to summary judgment dismissing the complaint (see, Howard v Poseidon Pools, 72 NY2d 972; Smith v Stark, supra). Accordingly, we modify the order of Special Term by granting summary judgment to defendant Esther Williams Pools and dismissing the action against it. (Appeals from order of Supreme Court, Monroe County, Patlow, J. — summary judgment.) Present — Dillon, P. J., Boomer, Green, Pine and Davis, JJ.