PAULISON v. SUFFOLK COUNTY

No. CV 89-2441

775 F. Supp. 50 (1991) | Cited 0 times | E.D. New York | October 1, 1991

MEMORANDUM AND ORDER

In the above-referenced action, plaintiffs Lee Paulison, Jr.,("plaintiff" or "Paulison"), and his parents, Lee Paulison, Sr.and Linda A. Paulison sue defendants Suffolk County ("theCounty") and the Town of Brookhaven ("the Town") to recoverdamages for permanent spinal injuries sustained by LeePaulison, Jr. when, on July 16, 1988, he dove from a treediving platform into shallow water of Lower Yaphank Lake (the"lake") in Yaphank, New York. Paulison alleges that the Countyand the Town were negligent based on, inter alia, the failureto use reasonable care to maintain the premises in a safecondition. Currently before the Court are motions by allparties for summary judgment, pursuant to Rule 56(c) of theFederal Rules of Civil Procedure. After a brief statement ofthe background facts, the Court will turn to address themotions.

BACKGROUND

As noted above, the site of the accident at issue is LowerYaphank Lake, located adjacent to Yaphank Avenue, in Yaphank,Town of Brookhaven, County of Suffolk, New York. County Road 21("C.R. 21") runs approximately six or seven feet roughlyparallel to the waters' edge of the lake. According to thepapers, plaintiff Lee Paulison was nineteen years old at thetime the accident occurred on July 16, 1988. Plaintiff had beento the lake prior to the date of the accident, on the Fourth ofJuly weekend, for between half an hour to an hour. On thatprior visit, he climbed over a low guardrail at the edge of theroadway to get to the lake. Apparently, the distance betweenthe guardrail and the shoreline isthree to four feet. There were no bouys or flags on the lake,no lifeguards, no fences, nor signs prohibiting swimming,diving or trespassing along the lake. According to plaintiff,the only signs at the lake prohibited littering.

Plaintiff claims to have observed, on that prior visit, thetree from which he would eventually dive on his next visit. Thetree was stripped and had horizontal wooden slats or "steps"nailed to the trunk, which lead to a two-by-six wooden board ontop of the tree. There was also a rope hanging from the tree,about fifteen feet off the ground, from which people couldapparently swing and jump into the water. The depth of thewater near the tree was estimated to be four to five feet.Approximately twenty to thirty feet to the left of the tree wasa wooden platform on a watergate ("watergate" or "sewagegate"). The depth of the water by the watergate was betweenseven and eight feet, a drop of approximately five feet fromthe tree area. There were no signs indicating the drop in depthbetween the tree and watergate. Plaintiff denies knowledge ofthe shallow depth of the water by the tree, since on hisearlier visit he swam near the watergate area.

On his first visit, plaintiff observed three people dive fromthe tree headfirst, although plaintiff himself did not divefrom the tree. In addition, plaintiff claims he did not seeanyone standing in the water near the tree since the diversexited the water by the watergate. According to the papers,plaintiff dove head first from the watergate several times onthe earlier visit, and exited the lake by the watergate.

On July 16, 1988, plaintiff was at the lake for one andone-half hours before his injury occurred. All events thatoccurred were witnessed by plaintiff's companions and recordedduring depositions, since plaintiff has no memory of theaccident. It is alleged that when he arrived at the lake,several people were swimming, and some of those were divingfrom the tree platform.

After plaintiff dove from the watergate and swam for twentyminutes, he stood in a line of approximately ten to fifteenpeople that had formed to jump from the tree. Plaintiff dovestraight up and straight down from the tree platform, enteringheadfirst into the water, and struck his head on the bottom ofthe lake. Plaintiff's companion, Joseph Boyle, found plaintifflying on the bottom of the lake and pulled him out of thewater. The County has stipulated to the fact that it owns andoperates Lower Yaphank Lake three hundred feet west of C.R. 21,which area encompasses the site of the accident.

Plaintiffs commenced this action to recover damages forpersonal injuries sustained by Lee Paulison, Jr., which haverendered him permanently disabled and a quadriplegic.Plaintiffs allege negligence on the part of the Town and theCounty by reason of their failure to exercise reasonable carein their management, ownership, operation and control of theproperty. As noted above, each party currently moves forsummary judgment.

The County alleges that the proximate cause of plaintiff'sinjuries was his reckless action in diving from the tree intothe shallow water of the lake. The County claims that there wasno duty to warn since the hazard was apparent, particularly inlight of plaintiff's familiarity with the site. In addition,the County argues that the maintenance, operation and controlof the lake rests, in part, with the Town of BrookhavenDepartment of Planning, Environment and Development. Morespecifically, the County alleges that the Town owed a duty ofcare with respect to the destruction of vegetation in LowerYaphank Lake, and that the destruction or alteration of the"diving" tree falls within the wetlands ordinance which theTown allegedly failed to enforce.

The Town seeks to dismiss both plaintiffs' complaint and theCounty's cross-claim on the ground that it cannot be liable forthe accident which took place on land owned by the County. Moreparticularly, the Town argues that since it is undisputed thatthe County owns the land and portion of Lower Yaphank Lake inquestion, theTown owed no tort duty to the other parties.

As to the County's allegation that the Town failed to enforcea flood prevention ordinance, the Town claims that there is noproof that the Town's flood prevention plan has anything to dowith the depth of Lower Yaphank Lake. In addition, the Townclaims that the County has made no showing to establish theTown's alleged failure to enforce its wetlands preservationordinance.

Plaintiff argues that the proximate cause of his injurieswas, inter alia, the County's negligence as a landowner and itsviolations of the New York State Sanitary Code, promulgatedunder authority of New York Public Health Law § 225. SeePlaintiff's Notice of Cross-Motion at exhibit B. Plaintiffcontends that the lake falls under that statute's definition ofa bathing beach, and claims that the County permitted this siteto be used for years as a bathing beach due to the continuedopen and notorious use of the area for swimming, jumping anddiving. Plaintiff concludes, therefore, that defendant'sviolation of the Public Health Law was negligence per se, andwas the proximate cause of plaintiff's injuries.

DISCUSSION

Pursuant to Rule 56 of the Federal Rules of Civil Procedure,a party is entitled to summary judgment when it is shown that"there is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106S.Ct. 2548, 91 L.Ed.2d 265 (1986). In Celotex, the SupremeCourt noted that "[t]he plain language of Rule 56(c) mandatesthe entry of summary judgment . . . against a party who failsto make a showing sufficient to establish the existence of anelement essential to that party's case, and on which that partywill bear the burden of proof at trial." See 477 U.S. at 322,106 S.Ct. at 2552. The Court further reasoned that in such asituation, "there can be no `genuine issue as to any materialfact,' since a complete failure of proof concerning anessential element of the non-moving party's case necessarilyrenders all other facts immaterial." Id. at 323-24, 106 S.Ct.at 2552-53. Where genuine factual issues exist, they "can beresolved only by a finder of fact because they may reasonablybe resolved in favor of either party." Anderson v. LibertyLobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91L.Ed.2d 202 (1986). With these principles in mind, the Courtturns to address the motions at bar.

In order to prove negligence, the plaintiff must demonstrate(1) the existence of a legal duty owed by defendants toplaintiff; (2) a breach of that duty; and (3) injury toplaintiff proximately resulting from such breach. Akins v.Glens Falls City School District, 53 N.Y.2d 325, 441 N.Y.S.2d644, 648, 424 N.E.2d 531, 535 (Ct.App. 1981) (citing Prosser,Torts [4th Ed.] § 30 p. 143). With regard to premisesliability, the New York Court of Appeals, in the case of Bassov. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868(Ct.App. 1976), abandoned the multiple standards of care owedby owners or occupiers of land based upon the status of thosefound on the property (i.e., invitee, licensee, or trespasser),and adopted a single standard of liability requiring an ownerto maintain reasonably safe conditions in view of all thecircumstances, "`including the likelihood of injury to others,the seriousness of the injury, and the burden of avoiding therisk.'" Id. at 568, 352 N.E.2d at 872 (citation omitted). Seealso Fellis v. Old Oaks Country Club, Inc., 163 A.D.2d 509, 558N YS.2d 183, 184 (2d Dep't 1990) (citations); Larini v.Biomass Industries, Inc., 918 F.2d 1046, 1052 (2d Cir. 1990);Huang v. Lee, 734 F. Supp. 71, 72 (E.D.N.Y. 1990).

A primary independent factor in determining foreseeability,and thus to a great extent liability, is the likelihood of aplaintiff's presence on the land. The duty of the owner willvary with the likelihood of plaintiff's presence at theparticular time and place of the injury. Basso, 386 N.Y.S.2d at568, 352 N.E.2d at 872. Consideration of who plaintiff is andwhat his purpose is upon the land are factors which may beconsidered in deciding what wouldbe reasonable care under the circumstances. Id.

Assuming that defendants owed plaintiff a duty to warn,plaintiff must prove that defendants' conduct was the legalcause of his injury. As the New York Court of Appeals noted inKriz v. Schum, 75 N.Y.2d 25, 550 N.Y.S.2d 584, 588,549 N.E.2d 1155, 1159 (Ct.App. 1989), "[i]t is well settled that becausethe determination of legal causation turns upon questions offoreseeability and `what is foreseeable and what is normal maybe the subject of varying inferences, as is the question ofnegligence itself, these issues generally are for the factfinder to resolve.'" Id. (citations omitted). Therefore,summary judgment is appropriate in those instances "`where onlyone conclusion may be drawn from the established facts.'" Id.However, notwithstanding that a defendant's negligence mighthave been a causal factor in an accident, summary judgment maybe appropriate "where the reckless conduct of the plaintiffconstituted an unforeseeable superseding event, sufficient tobreak the causal chain and thus absolve the defendant ofliability." Id. at 589, 549 N.E.2d at 1160 (citations omitted).

In order to act as a superseding cause, "a plaintiff'snegligence must be more than mere contributory negligence,which would be relevant in apportioning culpable conduct.Rather, such conduct, in addition to being unforeseeable, mustrise to a level of culpability as to replace the defendant'snegligence as the legal cause of the accident." Mesick v. Stateof New York, 118 A.D.2d 214, 504 N.Y.S.2d 279 (3d Dep't 1986)(citation omitted). Once a prima facie case of negligence hasbeen established, it is for the finder of fact to determinelegal cause. Derdiarian v. Felix Contracting Corp., 51 N.Y.2d308, 434 N.Y.S.2d 166, 169, 414 N.E.2d 666, 670 (Ct.App. 1980).In light of the principles discussed above, the Court turns toconsider the parties' arguments in the case at bar.

The County

In order for the County to have this action dismissed in itsfavor, it must prove that it had no duty to plaintiff, or thatthe proximate cause of plaintiff's injury was his ownrecklessness. Since the County is the landowner, it had a dutyto maintain its premises in a reasonably safe condition.Basso, 386 N.Y.S.2d at 568, 352 N.E.2d at 872. As for proximatecause, the question of whether plaintiff's diving off the treecan be considered reckless is a triable issue of fact. Drawingall reasonable inferences in plaintiff's favor, Donahue v.Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987), it is important to note that plaintiff alleges that hehad no knowledge of the depth of the water at the diving spot.In swimming and diving injury cases, courts have held that aplaintiff's lack of awareness of the water's depth is enough todeny a defendant's summary judgment motion on the issues ofrecklessness and causation. Kriz, 550 N.Y.S.2d at 589, 549N.E.2d at 1160; Coe v. Ta-Ga-Soke Campgrounds, 162 A.D.2d 980,557 N.Y.S.2d 207, 208 (4th Dep't 1990). In this case, whetherthe shallow waters were readily observable, or whetherplaintiff should have known the water near the tree wasshallow, are open questions of fact.

In Mesick, 504 N.Y.S.2d at 280, plaintiff was rendered apermanent quadriplegic when, while at a creek located on stateproperty, he ran to grab a rope attached to a tree whichextended out toward the water, but slipped and fell head firstonto rocks. Despite posted restrictions which limited the useof the area to fishing, the site was frequently used forswimming, and swimmers often used the rope to swing out intothe water. Id. at 280-81. The court found that it was notunforeseeable that plaintiff would try to gain a "running startat the rope, nor that he could have slipped while running atthe rope." Id. at 282. Similarly, in this case, it was notunforeseeable that plaintiff would have dived from a tree onwhich wooden planks and a platform were attached, and whereplaintiff had witnessed others swimming and diving withoutincident. Therefore, aquestion of fact remains as to the foreseeability ofplaintiff's actions, thus precluding summary judgment in theCounty's favor.

Plaintiff

In order for plaintiff to be entitled to summary judgment, hemust show that the County owed a duty, that it breached thatduty; and that the breach was the proximate cause of hisinjury; or, in the alternative, that the County's failure toenforce the statute was negligence per se. Based on thediscussion above, it is clear that open issues of fact existwhich bar summary judgment as between the County and plaintiff.

As noted above, the County, as landowner, has a duty tomaintain its premises in a reasonably safe condition. TheCounty's arguments that it does not owe a duty to plaintiffbecause the lake was not a public recreation area, and that itnever consented to have trespassers use the land, is withoutmerit since, according to Basso, the County must maintain itspremises in a safe condition to invitees and trespassers alike.See 386 N.Y.S.2d at 568, 352 N.E.2d at 872. It remains for thejury to determine whether the County acted reasonably in themaintenance of the premises. See Toure v. New York City Bd. ofEd., 127 A.D.2d 759, 512 N.Y.S.2d 150, 151 (mem.) (2d Dep't1987).

According to Herman v. State of New York, 63 N.Y.2d 822, 482N YS.2d 248, 472 N.E.2d 24 (Ct.App. 1984), to be liable indamages for failure to warn of a dangerous condition, aproperty owner must have notice of the condition as well as theunreasonable risk it creates. Id. at 249, 472 N.E.2d at 25.There is, however, no duty to warn against a condition that canbe readily observed. Olsen v. State of New York, 30 A.D.2d 759,291 N.Y.S.2d 833 (4th Dep't 1968), aff'd, 25 N.Y.2d 665, 306N YS.2d 474, 254 N.E.2d 774 (Ct.App. 1969); Casela v. City ofTroy, 161 A.D.2d 991, 557 N.Y.S.2d 562 (3d Dep't 1990); Ciminov. Town of Hempstead, 110 A.D.2d 805, 488 N.Y.S.2d 68, 69 (2dDep't), aff'd, 66 N.Y.2d 709, 496 N.Y.S.2d 425, 487 N.E.2d 282(Ct.App. 1985). Plaintiff claims that diving and swimmingoccurred at the site during warm weather for years without anyinterference from County authorities. Plaintiff further allegesthat County authorities drove past the lake on a daily basis,and should have known that people were swimming there. Thus,whether or not the County had notice of the tree's alteration,or that Lower Yaphank Lake had been used in the past as a placefor swimming and diving, is a question of fact.

Whether or not Lower Yaphank Lake may be considered a bathingbeach under New York Law may also be determined by the jury.Section 6-2.2(a) of the New York Sanitary Code, promulgatedunder authority of Public Health Law § 225, defines a bathingbeach as a bathing place where, inter alia, a lake is used "forbathing or swimming with the express or implied permission orconsent of the owner. . . ." See Plaintiff's Notice ofCross-Motion at exhibit B. Hence, in the case at bar it is forthe jury to determine whether implied consent was given. If itis decided that Lower Yaphank Lake is a bathing beach, then thejury must go on to determine whether the County violated thestatute and whether these violations were the proximate causeof plaintiff's injuries. Accordingly, plaintiff's motion forsummary judgment must be likewise denied.

The Town

As noted above, the Town does not own the area of LowerYaphank Lake where the accident occurred, and this Court findsthat it does not owe any duty for purposes of tort liability inthe instant case. The County's allegations that the Town failedto enforce its flood prevention and wetlands protectionordinances are immaterial. Neither ordinance has anything to dowith the Town's responsibility for accidents that occur onCounty-owned property. In order to impose liability upon amunicipality for failure to enforce a statute or regulation,there must be a "special relationship creating a municipal dutyto exercise care for the benefit of a particular class ofindividuals." O'Connor v. City of New York, 58 N.Y.2d 184, 460N YS.2d 485, 487, 447 N.E.2d 33, 35 (Ct.App. 1983) (citationsomitted). It is insufficient to attempt to form a basis formunicipal liabilitywhere regulations were intended to protect "all members of thegeneral public similarly situated," rather than specificindividuals. Id. The wetlands protection ordinance is designedto protect the environment and the public at large, not createspecific tort liability towards individuals. Similarly, theflood ordinance is designed to protect the public's nearbyresidences, and not to protect people from injuries occurringon property that is not owned by the Town. In short, theseordinances do not create a specific duty owed by the Town toplaintiff. Therefore, neither plaintiff nor the County hascreated a triable issue of fact as to the Town's obligations.Since there are no issues of material fact as to the Town'snegligence, the Town's motion far summary judgment must begranted. Fed.R.Civ.P. 56(c).

CONCLUSION

For the reasons stated above, the motions for summaryjudgment by Suffolk County and plaintiff, pursuant to Rule56(c) of the Federal Rule of Civil Procedure, are denied. Thedefendant Town of Brookhaven's motion for summary judgment isgranted; the Clerk of the Court is directed to enter judgmentfor the Town. Jury selection will proceed October 4, 1991 at8:30 a.m.; trial will commence October 7, 1991.

SO ORDERED.

MEMORANDUM AND ORDER

In the above-referenced action, plaintiffs Lee Paulison, Jr.,("plaintiff" or "Paulison"), and his parents, Lee Paulison, Sr.and Linda A. Paulison sue defendants Suffolk County ("theCounty") and the Town of Brookhaven ("the Town") to recoverdamages for permanent spinal injuries sustained by LeePaulison, Jr. when, on July 16, 1988, he dove from a treediving platform into shallow water of Lower Yaphank Lake (the"lake") in Yaphank, New York. Paulison alleges that the Countyand the Town were negligent based on, inter alia, the failureto use reasonable care to maintain the premises in a safecondition. Currently before the Court are motions by allparties for summary judgment, pursuant to Rule 56(c) of theFederal Rules of Civil Procedure. After a brief statement ofthe background facts, the Court will turn to address themotions.

BACKGROUND

As noted above, the site of the accident at issue is LowerYaphank Lake, located adjacent to Yaphank Avenue, in Yaphank,Town of Brookhaven, County of Suffolk, New York. County Road 21("C.R. 21") runs approximately six or seven feet roughlyparallel to the waters' edge of the lake. According to thepapers, plaintiff Lee Paulison was nineteen years old at thetime the accident occurred on July 16, 1988. Plaintiff had beento the lake prior to the date of the accident, on the Fourth ofJuly weekend, for between half an hour to an hour. On thatprior visit, he climbed over a low guardrail at the edge of theroadway to get to the lake. Apparently, the distance betweenthe guardrail and the shoreline isthree to four feet. There were no bouys or flags on the lake,no lifeguards, no fences, nor signs prohibiting swimming,diving or trespassing along the lake. According to plaintiff,the only signs at the lake prohibited littering.

Plaintiff claims to have observed, on that prior visit, thetree from which he would eventually dive on his next visit. Thetree was stripped and had horizontal wooden slats or "steps"nailed to the trunk, which lead to a two-by-six wooden board ontop of the tree. There was also a rope hanging from the tree,about fifteen feet off the ground, from which people couldapparently swing and jump into the water. The depth of thewater near the tree was estimated to be four to five feet.Approximately twenty to thirty feet to the left of the tree wasa wooden platform on a watergate ("watergate" or "sewagegate"). The depth of the water by the watergate was betweenseven and eight feet, a drop of approximately five feet fromthe tree area. There were no signs indicating the drop in depthbetween the tree and watergate. Plaintiff denies knowledge ofthe shallow depth of the water by the tree, since on hisearlier visit he swam near the watergate area.

On his first visit, plaintiff observed three people dive fromthe tree headfirst, although plaintiff himself did not divefrom the tree. In addition, plaintiff claims he did not seeanyone standing in the water near the tree since the diversexited the water by the watergate. According to the papers,plaintiff dove head first from the watergate several times onthe earlier visit, and exited the lake by the watergate.

On July 16, 1988, plaintiff was at the lake for one andone-half hours before his injury occurred. All events thatoccurred were witnessed by plaintiff's companions and recordedduring depositions, since plaintiff has no memory of theaccident. It is alleged that when he arrived at the lake,several people were swimming, and some of those were divingfrom the tree platform.

After plaintiff dove from the watergate and swam for twentyminutes, he stood in a line of approximately ten to fifteenpeople that had formed to jump from the tree. Plaintiff dovestraight up and straight down from the tree platform, enteringheadfirst into the water, and struck his head on the bottom ofthe lake. Plaintiff's companion, Joseph Boyle, found plaintifflying on the bottom of the lake and pulled him out of thewater. The County has stipulated to the fact that it owns andoperates Lower Yaphank Lake three hundred feet west of C.R. 21,which area encompasses the site of the accident.

Plaintiffs commenced this action to recover damages forpersonal injuries sustained by Lee Paulison, Jr., which haverendered him permanently disabled and a quadriplegic.Plaintiffs allege negligence on the part of the Town and theCounty by reason of their failure to exercise reasonable carein their management, ownership, operation and control of theproperty. As noted above, each party currently moves forsummary judgment.

The County alleges that the proximate cause of plaintiff'sinjuries was his reckless action in diving from the tree intothe shallow water of the lake. The County claims that there wasno duty to warn since the hazard was apparent, particularly inlight of plaintiff's familiarity with the site. In addition,the County argues that the maintenance, operation and controlof the lake rests, in part, with the Town of BrookhavenDepartment of Planning, Environment and Development. Morespecifically, the County alleges that the Town owed a duty ofcare with respect to the destruction of vegetation in LowerYaphank Lake, and that the destruction or alteration of the"diving" tree falls within the wetlands ordinance which theTown allegedly failed to enforce.

The Town seeks to dismiss both plaintiffs' complaint and theCounty's cross-claim on the ground that it cannot be liable forthe accident which took place on land owned by the County. Moreparticularly, the Town argues that since it is undisputed thatthe County owns the land and portion of Lower Yaphank Lake inquestion, theTown owed no tort duty to the other parties.

As to the County's allegation that the Town failed to enforcea flood prevention ordinance, the Town claims that there is noproof that the Town's flood prevention plan has anything to dowith the depth of Lower Yaphank Lake. In addition, the Townclaims that the County has made no showing to establish theTown's alleged failure to enforce its wetlands preservationordinance.

Plaintiff argues that the proximate cause of his injurieswas, inter alia, the County's negligence as a landowner and itsviolations of the New York State Sanitary Code, promulgatedunder authority of New York Public Health Law § 225. SeePlaintiff's Notice of Cross-Motion at exhibit B. Plaintiffcontends that the lake falls under that statute's definition ofa bathing beach, and claims that the County permitted this siteto be used for years as a bathing beach due to the continuedopen and notorious use of the area for swimming, jumping anddiving. Plaintiff concludes, therefore, that defendant'sviolation of the Public Health Law was negligence per se, andwas the proximate cause of plaintiff's injuries.

DISCUSSION

Pursuant to Rule 56 of the Federal Rules of Civil Procedure,a party is entitled to summary judgment when it is shown that"there is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106S.Ct. 2548, 91 L.Ed.2d 265 (1986). In Celotex, the SupremeCourt noted that "[t]he plain language of Rule 56(c) mandatesthe entry of summary judgment . . . against a party who failsto make a showing sufficient to establish the existence of anelement essential to that party's case, and on which that partywill bear the burden of proof at trial." See 477 U.S. at 322,106 S.Ct. at 2552. The Court further reasoned that in such asituation, "there can be no `genuine issue as to any materialfact,' since a complete failure of proof concerning anessential element of the non-moving party's case necessarilyrenders all other facts immaterial." Id. at 323-24, 106 S.Ct.at 2552-53. Where genuine factual issues exist, they "can beresolved only by a finder of fact because they may reasonablybe resolved in favor of either party." Anderson v. LibertyLobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91L.Ed.2d 202 (1986). With these principles in mind, the Courtturns to address the motions at bar.

In order to prove negligence, the plaintiff must demonstrate(1) the existence of a legal duty owed by defendants toplaintiff; (2) a breach of that duty; and (3) injury toplaintiff proximately resulting from such breach. Akins v.Glens Falls City School District, 53 N.Y.2d 325, 441 N.Y.S.2d644, 648, 424 N.E.2d 531, 535 (Ct.App. 1981) (citing Prosser,Torts [4th Ed.] § 30 p. 143). With regard to premisesliability, the New York Court of Appeals, in the case of Bassov. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868(Ct.App. 1976), abandoned the multiple standards of care owedby owners or occupiers of land based upon the status of thosefound on the property (i.e., invitee, licensee, or trespasser),and adopted a single standard of liability requiring an ownerto maintain reasonably safe conditions in view of all thecircumstances, "`including the likelihood of injury to others,the seriousness of the injury, and the burden of avoiding therisk.'" Id. at 568, 352 N.E.2d at 872 (citation omitted). Seealso Fellis v. Old Oaks Country Club, Inc., 163 A.D.2d 509, 558N YS.2d 183, 184 (2d Dep't 1990) (citations); Larini v.Biomass Industries, Inc., 918 F.2d 1046, 1052 (2d Cir. 1990);Huang v. Lee, 734 F. Supp. 71, 72 (E.D.N.Y. 1990).

A primary independent factor in determining foreseeability,and thus to a great extent liability, is the likelihood of aplaintiff's presence on the land. The duty of the owner willvary with the likelihood of plaintiff's presence at theparticular time and place of the injury. Basso, 386 N.Y.S.2d at568, 352 N.E.2d at 872. Consideration of who plaintiff is andwhat his purpose is upon the land are factors which may beconsidered in deciding what wouldbe reasonable care under the circumstances. Id.

Assuming that defendants owed plaintiff a duty to warn,plaintiff must prove that defendants' conduct was the legalcause of his injury. As the New York Court of Appeals noted inKriz v. Schum, 75 N.Y.2d 25, 550 N.Y.S.2d 584, 588,549 N.E.2d 1155, 1159 (Ct.App. 1989), "[i]t is well settled that becausethe determination of legal causation turns upon questions offoreseeability and `what is foreseeable and what is normal maybe the subject of varying inferences, as is the question ofnegligence itself, these issues generally are for the factfinder to resolve.'" Id. (citations omitted). Therefore,summary judgment is appropriate in those instances "`where onlyone conclusion may be drawn from the established facts.'" Id.However, notwithstanding that a defendant's negligence mighthave been a causal factor in an accident, summary judgment maybe appropriate "where the reckless conduct of the plaintiffconstituted an unforeseeable superseding event, sufficient tobreak the causal chain and thus absolve the defendant ofliability." Id. at 589, 549 N.E.2d at 1160 (citations omitted).

In order to act as a superseding cause, "a plaintiff'snegligence must be more than mere contributory negligence,which would be relevant in apportioning culpable conduct.Rather, such conduct, in addition to being unforeseeable, mustrise to a level of culpability as to replace the defendant'snegligence as the legal cause of the accident." Mesick v. Stateof New York, 118 A.D.2d 214, 504 N.Y.S.2d 279 (3d Dep't 1986)(citation omitted). Once a prima facie case of negligence hasbeen established, it is for the finder of fact to determinelegal cause. Derdiarian v. Felix Contracting Corp., 51 N.Y.2d308, 434 N.Y.S.2d 166, 169, 414 N.E.2d 666, 670 (Ct.App. 1980).In light of the principles discussed above, the Court turns toconsider the parties' arguments in the case at bar.

The County

In order for the County to have this action dismissed in itsfavor, it must prove that it had no duty to plaintiff, or thatthe proximate cause of plaintiff's injury was his ownrecklessness. Since the County is the landowner, it had a dutyto maintain its premises in a reasonably safe condition.Basso, 386 N.Y.S.2d at 568, 352 N.E.2d at 872. As for proximatecause, the question of whether plaintiff's diving off the treecan be considered reckless is a triable issue of fact. Drawingall reasonable inferences in plaintiff's favor, Donahue v.Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987), it is important to note that plaintiff alleges that hehad no knowledge of the depth of the water at the diving spot.In swimming and diving injury cases, courts have held that aplaintiff's lack of awareness of the water's depth is enough todeny a defendant's summary judgment motion on the issues ofrecklessness and causation. Kriz, 550 N.Y.S.2d at 589, 549N.E.2d at 1160; Coe v. Ta-Ga-Soke Campgrounds, 162 A.D.2d 980,557 N.Y.S.2d 207, 208 (4th Dep't 1990). In this case, whetherthe shallow waters were readily observable, or whetherplaintiff should have known the water near the tree wasshallow, are open questions of fact.

In Mesick, 504 N.Y.S.2d at 280, plaintiff was rendered apermanent quadriplegic when, while at a creek located on stateproperty, he ran to grab a rope attached to a tree whichextended out toward the water, but slipped and fell head firstonto rocks. Despite posted restrictions which limited the useof the area to fishing, the site was frequently used forswimming, and swimmers often used the rope to swing out intothe water. Id. at 280-81. The court found that it was notunforeseeable that plaintiff would try to gain a "running startat the rope, nor that he could have slipped while running atthe rope." Id. at 282. Similarly, in this case, it was notunforeseeable that plaintiff would have dived from a tree onwhich wooden planks and a platform were attached, and whereplaintiff had witnessed others swimming and diving withoutincident. Therefore, aquestion of fact remains as to the foreseeability ofplaintiff's actions, thus precluding summary judgment in theCounty's favor.

Plaintiff

In order for plaintiff to be entitled to summary judgment, hemust show that the County owed a duty, that it breached thatduty; and that the breach was the proximate cause of hisinjury; or, in the alternative, that the County's failure toenforce the statute was negligence per se. Based on thediscussion above, it is clear that open issues of fact existwhich bar summary judgment as between the County and plaintiff.

As noted above, the County, as landowner, has a duty tomaintain its premises in a reasonably safe condition. TheCounty's arguments that it does not owe a duty to plaintiffbecause the lake was not a public recreation area, and that itnever consented to have trespassers use the land, is withoutmerit since, according to Basso, the County must maintain itspremises in a safe condition to invitees and trespassers alike.See 386 N.Y.S.2d at 568, 352 N.E.2d at 872. It remains for thejury to determine whether the County acted reasonably in themaintenance of the premises. See Toure v. New York City Bd. ofEd., 127 A.D.2d 759, 512 N.Y.S.2d 150, 151 (mem.) (2d Dep't1987).

According to Herman v. State of New York, 63 N.Y.2d 822, 482N YS.2d 248, 472 N.E.2d 24 (Ct.App. 1984), to be liable indamages for failure to warn of a dangerous condition, aproperty owner must have notice of the condition as well as theunreasonable risk it creates. Id. at 249, 472 N.E.2d at 25.There is, however, no duty to warn against a condition that canbe readily observed. Olsen v. State of New York, 30 A.D.2d 759,291 N.Y.S.2d 833 (4th Dep't 1968), aff'd, 25 N.Y.2d 665, 306N YS.2d 474, 254 N.E.2d 774 (Ct.App. 1969); Casela v. City ofTroy, 161 A.D.2d 991, 557 N.Y.S.2d 562 (3d Dep't 1990); Ciminov. Town of Hempstead, 110 A.D.2d 805, 488 N.Y.S.2d 68, 69 (2dDep't), aff'd, 66 N.Y.2d 709, 496 N.Y.S.2d 425, 487 N.E.2d 282(Ct.App. 1985). Plaintiff claims that diving and swimmingoccurred at the site during warm weather for years without anyinterference from County authorities. Plaintiff further allegesthat County authorities drove past the lake on a daily basis,and should have known that people were swimming there. Thus,whether or not the County had notice of the tree's alteration,or that Lower Yaphank Lake had been used in the past as a placefor swimming and diving, is a question of fact.

Whether or not Lower Yaphank Lake may be considered a bathingbeach under New York Law may also be determined by the jury.Section 6-2.2(a) of the New York Sanitary Code, promulgatedunder authority of Public Health Law § 225, defines a bathingbeach as a bathing place where, inter alia, a lake is used "forbathing or swimming with the express or implied permission orconsent of the owner. . . ." See Plaintiff's Notice ofCross-Motion at exhibit B. Hence, in the case at bar it is forthe jury to determine whether implied consent was given. If itis decided that Lower Yaphank Lake is a bathing beach, then thejury must go on to determine whether the County violated thestatute and whether these violations were the proximate causeof plaintiff's injuries. Accordingly, plaintiff's motion forsummary judgment must be likewise denied.

The Town

As noted above, the Town does not own the area of LowerYaphank Lake where the accident occurred, and this Court findsthat it does not owe any duty for purposes of tort liability inthe instant case. The County's allegations that the Town failedto enforce its flood prevention and wetlands protectionordinances are immaterial. Neither ordinance has anything to dowith the Town's responsibility for accidents that occur onCounty-owned property. In order to impose liability upon amunicipality for failure to enforce a statute or regulation,there must be a "special relationship creating a municipal dutyto exercise care for the benefit of a particular class ofindividuals." O'Connor v. City of New York, 58 N.Y.2d 184, 460N YS.2d 485, 487, 447 N.E.2d 33, 35 (Ct.App. 1983) (citationsomitted). It is insufficient to attempt to form a basis formunicipal liabilitywhere regulations were intended to protect "all members of thegeneral public similarly situated," rather than specificindividuals. Id. The wetlands protection ordinance is designedto protect the environment and the public at large, not createspecific tort liability towards individuals. Similarly, theflood ordinance is designed to protect the public's nearbyresidences, and not to protect people from injuries occurringon property that is not owned by the Town. In short, theseordinances do not create a specific duty owed by the Town toplaintiff. Therefore, neither plaintiff nor the County hascreated a triable issue of fact as to the Town's obligations.Since there are no issues of material fact as to the Town'snegligence, the Town's motion far summary judgment must begranted. Fed.R.Civ.P. 56(c).

CONCLUSION

For the reasons stated above, the motions for summaryjudgment by Suffolk County and plaintiff, pursuant to Rule56(c) of the Federal Rule of Civil Procedure, are denied. Thedefendant Town of Brookhaven's motion for summary judgment isgranted; the Clerk of the Court is directed to enter judgmentfor the Town. Jury selection will proceed October 4, 1991 at8:30 a.m.; trial will commence October 7, 1991.

SO ORDERED.

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