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PLAINTIFF, WHILE ATTENDING A BEACH-FRONT PARTY, SUFFERED SEVERE INJURY WHEN HE DOVE OFF A BULKHEAD INTO SHALLOW WATER; HIS ACTION AGAINST THE PROPERTY OWNER FOR FAILURE TO WARN SHOULD NOT HAVE BEEN DISMISSED; THE PROPERTY OWNER’S INDEMNIFICATION ACTION AGAINST THE PERSON WHO RENTED THE AREA FOR THE PARTY WAS DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s action against the owner of beach-front property where a party was being held should not have been dismissed. Plaintiff dove off a bulkhead into shallow water and suffered severe injury. Plaintiff alleged a negligent failure to warn against diving. Apparently the water was murky and the bulkhead extended 40 feet into a bay along a boat channel. In addition, the Second Department determined that the person who rented the area for the party (Hanson) did not agree, in the rental agreement, to indemnify the property owner for the owner’s alleged negligence:

The plaintiff testified that he believed the waters to be deep in the area in which he dove because the bulkhead was adjacent to a boating channel, it extended approximately 40 feet into the bay from the beach, and he had seen people swimming earlier in the day. … [I]t cannot be said as a matter of law that the plaintiff knew or should have known that he was diving into shallow waters, and thus, that his conduct constituted the sole proximate cause of the accident or an unforeseeable superseding event sufficient to absolve [the owner] of liability … . Moreover, [the owner] did not demonstrate, as a matter of law, that the plaintiff’s blood alcohol level was the sole proximate cause, or a superseding cause, of the accident … . …

“When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … . “The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances” … . Particularly with agreements to indemnify, “[a]lthough the words might ‘seem to admit of a larger sense, . . . they should be restrained to the particular occasion and to the particular object which the parties had in view'” … .

Here, the indemnification provision on which [the owner] relies is contained in the agreement Hanson signed to rent the Community Center for a party. Hanson demonstrated … that a promise on his part to indemnify PPI for its alleged negligence in relation to its ownership and maintenance of the beach area and bulkhead cannot be “clearly implied from the language and purpose of [that] entire agreement and the surrounding facts and circumstances” … . Reilly v Patchogue Props., Inc., 2022 NY Slip Op 01334, Second Dept 3-2-22

 

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SUPREME COURT DID NOT MAKE THE REQUIRED FINDINGS RE: WHETHER DEFENDANT SHOULD... PLAINTIFF DID NOT HAVE TO PROVE THE EXISTENCE OF A RETAINER AGREEMENT TO DEMONSTRATE...