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INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE.

The Fourth Department determined plaintiff’s injury from diving into the shallow end of a pool was not actionable:

It is well established that “[s]ummary judgment is an appropriate remedy in swimming pool injury cases when from his general knowledge of pools, his observations prior to the accident, and plain common sense’ . . . , the plaintiff should have known that, if he dove into the pool, the area into which he dove contained shallow water and, thus, posed a danger of injury” … . In light of that standard, we conclude that defendant met her burden on the motion, and that plaintiff failed to raise an issue of fact … . The record establishes that plaintiff lived on the same street as defendant, swam in the subject pool multiple times prior to the accident, was aware that striking the bottom of a pool was a risk when diving into the shallow end of the pool, and acknowledged that he knew the depth dimensions of defendant’s pool, i.e., where the shallow end started and ended. Under those circumstances, we conclude that plaintiff’s reckless conduct was the sole proximate cause of his injuries … . Furthermore, even assuming, arguendo, that defendant was negligent in failing to provide a “safety float line separating the shallow and deep end of [her] pool, [we conclude that] even the most liberal interpretation of the record eliminates any cause of this accident other than the reckless conduct of plaintiff” … . Brady v Domino, 2016 NY Slip Op 08687, 4th Dept 12-23-16

NEGLIGENCE (INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE)/SWIMMING POOLS (INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE)/DIVING (INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE)/SOLE PROXIMATE CAUSE (INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE)

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INDICTMENT COUNT RENDERED DUPLICITOUS BY TRIAL TESTIMONY. GOLFER ASSUMED THE RISK OF LOSING CONTROL OF HER GOLF CART ON A WET SLOPE.