Johnson v. Harrington

215 A.D.2d 857, 626 N.Y.S.2d 324, 1995 N.Y. App. Div. LEXIS 5026

Opinions

Spain, J. Appeal from an order of the Supreme Court (Lynch, J.), entered June 14, 1994 in Schenectady County, which denied defendants’ motion for summary judgment dismissing the complaint.

Plaintiff Scott Johnson (hereinafter plaintiff) was injured on May 17, 1991 at approximately 10:30 p.m. in the waters of Lake George. Plaintiff sustained serious injuries and was rendered a quadriplegic as a result of entering the water headfirst at the end of defendants’ dock and striking his head on rocks contained in a crib bed.

Plaintiff, a self-employed painter and carpenter, had painted defendants’ boathouse, deck and dock the year before. Defendants were not satisfied with the color they had chosen and hired plaintiff in April 1991 to repaint the boathouse, deck and dock. The work was to be completed by Memorial Day weekend. Defendants’ agreement with plaintiff did not contain any restrictions, prohibitions or warnings regarding entering their property or swimming in the lake.

Prior to arriving at defendants’ property on the day in question, plaintiff and a friend went to a local restaurant where plaintiff admitted to consuming 2 to 3 beers while shooting pool. They left the restaurant at approximately 10:00 p.m. and went to defendants’ property so that plaintiff could show his friend the site. After an inspection of defendants’ boathouse, deck and dock, plaintiff decided to go for a swim. He entered the water headfirst from the end of the 16-foot dock and struck his head on the crib bed. The crib bed was just below water level.

Plaintiffs allege that defendants knew the crib bed was there and that they failed to take any precautions to make the area safer or to warn of the dangerous condition hidden beneath the water. Defendants argue that they owed no duty to plaintiff and, further, that they did not proximately cause plaintiff’s injuries. Supreme Court found, inter alia, triable issues of fact regarding defendants’ failure to warn. We reverse.

Assuming, arguendo, that defendants owed a duty to plain tiff, in order to establish liability plaintiffs must show that defendants’ negligence was a proximate cause of plaintiff’s injuries (see, Howard v Poseidon Pools, 72 NY2d 972, 974; Boltax v Joy Day Camp, 67 NY2d 617, 619). In negligence actions arising out of diving accidents, the element of causation can be resolved as a matter of law when no other legal cause exists other than the reckless conduct of the plaintiff or that the plaintiff’s conduct was so reckless as to be an unforeseeable superseding event (see, Olsen v Town of Richfield, 81 NY2d 1024, 1026; see also, Kriz v Schum, 75 NY2d 25, 34-35; Howard v Poseidon Pools, supra).

In the case at bar, plaintiff’s decision to proceed headfirst into the lake is found to be reckless conduct. Unlike a well-maintained pool, a lake, especially to someone unfamiliar with its characteristics, poses many common dangers.

Footnotes

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* Plaintiff expanded those dangers by entering the lake without local knowledge, at night in the darkness. Plaintiff’s disregard of his own common sense concerning his safety at the time of the accident was the proximate cause of his injuries (see, Mosher v State of New York, 145 AD2d 682, 683, Iv denied 73 NY2d 708).

Mercure, White and Casey, JJ., concur.

Lakes contain floating debris (e.g., tree limbs, pieces of docks and decking) and countless hidden underwater perils, and seasonal changes can cause known rock formations to shift.