Diving Into Shallow Water Raised Questions of Fact Re: Foreseeability and Defendants’ Negligence

The Third Department determined questions of fact had been raised about foreseeability and negligence in an action based upon plaintiff’s diving into shallow water incurring a spinal injury.  The incident occurred in April on an unusually hot day:

The dynamic of this case is that the accident occurred on an unseasonably warm spring day, well before the swimming season would normally commence. With the lake levels reduced, plaintiff’s professed expectations of water depth were tragically proven unfounded. Compounding the problem, as explained by plaintiff’s wife, was the fact that the water was not clear enough to see the bottom. Despite plaintiff’s initial protests about going in the water, the fact remains it was extremely hot, the children had been swimming and plaintiff was wearing swim trunks. [Defendant] acknowledged that “[i]t wouldn’t have surprised [him] for them to get in the water.” Under these circumstances, whether it was foreseeable that plaintiff would dive into the water presents a question of fact for the trier of fact to resolve … . Whether defendants breached their duty of care by failing to inform plaintiff of the reduced water level also remains a question of fact .. . Correspondingly, a triable issue of fact remains as to whether plaintiff was actually aware of the depth of the water and dove in reckless disregard of his own safety. As such, his conduct cannot be characterized as a superseding cause as a matter of law … . Toyryla v Denis, 2014 NY Slip Op 05483, 3rd Dept 7-24-14