Johnson v. Cherry Grove Island Management, Inc.

Lawrence, J.,

concurs in part and dissents in part and votes to reverse the order, on the law, grant the motions, and dismiss the complaint, with the following memorandum: I concur with my colleagues that summary judgment should be granted in favor of the defendant Cherry Grove Discotheque, Inc., for the reasons stated in their decision.

However, I find that the defendants Cherry Grove Island Management, Inc., and Fire Island Construction Associates, Ltd., are also entitled to summary judgment dismissing the complaint insofar as asserted against them. The plaintiff claims these defendants were negligent in that they failed to place depth markings at or in the pool and to warn her of the dangers inherent in diving into the pool. Nevertheless, at her examination before trial, the plaintiff testified that prior to her dive, she merely "looked” at the pool and noticed only its shape and approximate size. She did not notice either the diving board and ladders at the deep end of the pool or the semicircular stairway leading into the pool at the shallow end, which features concededly existed on the day of the accident. Moreover, she did not look for any markings on the edge of the pool. While the plaintiff, an admittedly experienced swimmer, claimed that she believed the pool was all one depth, she concededly did not know what that depth was. She made no *829effort to ascertain how deep the water was at the place where she dove in, and she made no claim that she was not in a position to ascertain the depth before she dove in. Consequently, it is clear that, by her own reckless conduct, the plaintiff caused her own injuries and she failed to raise a factual issue as to whether any alleged negligence by these defendants was a proximate cause of her injuries. The majority’s reliance on Denkensohn v Davenport (75 NY2d 25) is misplaced. In that case, the injured plaintiff was not in a position to know the depth of the pool into which she dove, and to the extent she was able to ascertain the depth, she could have reasonably presumed, under all the circumstances, that the water was deep enough to sustain a dive.