Olsen v. Town of Richfield

Mahoney, J.

Appeal from an order of the Supreme Court (Thomas, J.), entered September 30, 1991 in Otsego County, which denied the motions by defendants County of Otsego, Robert Boss and Jenny Boss for summary judgment dismissing the complaint against them.

In August 1988 plaintiff, 18 years old at the time, sustained *543spinal injuries following a dive from the First Arch Bridge in the Town of Richfield, Otsego County, into an area where the creek below formed a natural pool. An experienced swimmer, plaintiff had dove from the bridge hundreds of times without incident and went swimming in the natural pond adjacent to the bridge sometimes several times a day during the summer months. According to him, this accident occurred when his left foot slipped on the concrete bridge platform as he executed the dive which caused him to enter the water at a steeper angle and to make a deeper dive than the usual shallow dive that he performed. He subsequently commenced this action against, among others, the County of Otsego, as owner of the bridge, asserting negligence in failing to take any action to prohibit diving or to post warning signs, and. the landowners who owned the creek bed, alleging negligence in failing to post their property against trespassers. Claiming that it had breached no duty to plaintiff and that plaintiffs own actions in diving off the bridge constituted a superseding act of negligence discharging it from liability, the County moved for summary judgment dismissing the complaint against it. The landowners moved for similar relief on grounds that they did not own or control the subject property. Following Supreme Court’s denial of both motions, this appeal ensued.

Addressing first the County’s motion, we agree that issues of fact exist regarding the County’s breach of its duty of care in maintaining the subject bridge in a safe condition and whether plaintiffs conduct was the sole legal cause of this accident. In view of the proximity of this relatively low-lying bridge (approximately 12 to 13 feet above water level) to a known recreational area used by members of the public for swimming, the presence of pedestrians thereon was entirely foreseeable and under prevailing case authority gives rise to a cognizable duty of care owing from the County to such users (see, Roberts v Town of Colchester, 139 AD2d 819, 821; Mesick v State of New York, 118 AD2d 214, 217, lv denied 68 NY2d 611). These circumstances also raise factual questions regarding the reasonableness of the County’s action in failing to prohibit jumping or diving from the bridge, either by the erection of no swimming or diving signs or barriers to prevent jumping or diving.

Similarly, we agree that the issue of causation cannot be decided as a matter of law. In negligence actions arising out of diving accidents, it is now clear that the element of causation *544can be resolved as a matter of law on a summary judgment motion in two instances: (1) where "the record eliminates any legal cause other than the reckless conduct of the plaintiff” (Howard v Poseidon Pools, 72 NY2d 972, 974; accord, Kriz v Schum, 75 NY2d 25, 34), and (2) where notwithstanding that a defendant’s negligence was a causative factor of the accident, the conduct of the plaintiff was so reckless that it constituted an unforeseeable superseding event sufficient to break the causal chain and thus absolve the defendant of liability (Kriz v Schum, supra, at 35). In our view, the County’s failure to act to prohibit diving in the area despite its admitted knowledge that the subject site was used as a recreational area, the proximity of the bridge to the area and the low height thereof, accompanied by the fact that there had been a prior injury to a swimmer at the location, creates questions of fact regarding whether the County’s derelictions contributed to this accident and removes this case from the first category previously noted (cf., supra; Ziecker v Town of Orchard Park, 75 NY2d 761; Treston v Allegretto, 180 AD2d 616; Culkin v Parks & Recreation Dept., 168 AD2d 912, lv denied 77 NY2d 806; Coe v Ta-Ga-Soke Campgrounds, 162 AD2d 980). Nor do we believe that plaintiff’s act of slipping off the concrete bridge during the execution of a dive was so foreseeable and rises to such a level of culpability so as to replace the County’s negligence as the legal cause of this accident as a matter of law. It is clearly foreseeable that a relatively low-lying bridge located adjacent to a known natural pool used by members of the public for swimming would be used as a diving platform and that one’s footing could slip as he or she attempted to dive off it (see, Roberts v Town of Colchester, 139 AD2d 819, 821, supra; Mesick v State of New York, 118 AD2d 214, supra; cf., Culkin v Parks & Recreation Dept., supra; Boltax v Joy Day Camp, 113 AD2d 859, affd 67 NY2d 617).

Regarding the motion for summary judgment of defendants Robert Boss and Jenny Boss, while there is some evidence in the record that they owned the land adjacent to the bridge and were aware that the bridge was used as a diving platform, because it is clear that they did not own or control the bridge and there is no evidence of their control over the natural pool into which plaintiff dove, they are entitled to summary judgment dismissing the complaint against them (cf., James v Stark, 183 AD2d 873; Searles v Town of Horicon, 166 AD2d 867).

Weiss, P. J., and Levine, J., concur.