Ziecker v. Town of Orchard Park

— Judgment reversed on the law without costs and complaint dismissed. Memorandum: On July 4, 1976 plaintiff, who was then a few weeks short of his eighteenth birthday, and several friends went swimming at Green Lake in the Town of Orchard *975Park. Plaintiff ran into the water until it reached his knees, then dove forward into approximately 2 to 2 Vt. feet of water. He struck his head on the sandy bottom and sustained injuries that rendered him a quadriplegic.

Plaintiff commenced a negligence action against the town and others. After a jury trial, he was found to be 70% liable for his injuries and was awarded $4,500,000 of the total $15,000,000 award. We reverse.

Plaintiff argues that the town had a duty to warn bathers of the danger of diving into the shallow water. Even if we assume, however, that such duty existed, we find that plaintiff’s reckless conduct was, as a matter of law, the sole proximate cause of his injury. Proximate cause is defined as that " 'which in a natural sequence, unbroken by any new cause, produces that event and without which that event would not have occurred.’ Rider v. Syracuse Rapid Transit Ry. Co., 171 N.Y. 139, 147 * * *. Where the actual cause of the injury is undisputed, the question of whether the defendant’s negligence was the proximate cause of plaintiff’s injury is a question of law for the court. See Rivera v. City of New York, 11 N.Y.2d 856, 857 * * *; see also Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315”. (Caraballo v United States, 830 F2d 19, 22.) Here, as in Caraballo, it was not defendant’s failure to post signs or supervise adequately that caused plaintiff’s injury. It was his own act — diving into 2 Vi feet of water — which was an unforeseeable superseding cause barring defendant’s liability (see, Howard v Poseidon Pools, 72 NY2d 972; Boltax v Joy Day Camp, 67 NY2d 617).

All concur, except Pine and Davis, JJ., who dissent and vote to affirm, in the following memorandum.