Citation Numbers: 178 A.D.2d 504, 577 N.Y.S.2d 144, 1991 N.Y. App. Div. LEXIS 16557
Filed Date: 12/16/1991
Status: Precedential
Modified Date: 10/31/2024
In an action to recover damages for personal injuries, etc., the defendant William Drum appeals from an order of the Supreme Court, Nassau County (O’Brien, J.), entered August 9, 1991, which denied his motion for summary judgment dismissing the complaint insofar as it is asserted against him.
Ordered that the order is reversed, on the law, with costs, the appellant’s motion for summary judgment is granted, the complaint is dismissed insofar as it is asserted against him, and the action against the remaining defendants is severed.
The record shows that the plaintiff and the appellant’s daughter consumed alcoholic beverages at a bar. They then proceeded to the appellant’s house and, after turning on one outside light, began swimming and diving in the pool, which had a water level of only four and one-half feet. The two had been swimming and diving for approximately 45 minutes when the accident occurred. The plaintiff was an experienced swimmer who had taken several swimming classes and had learned about diving principles. Under these circumstances we find that it was the plaintiff’s reckless conduct, rather than the negligence of the appellant, which was the sole proximate cause of her injuries (see, Howard v Poseidon Pools, 72 NY2d 972; Boltax v Joy Day Camp, 67 NY2d 617; Smith v Stark, 67 NY2d 693). Lawrence, J. P., Balletta, Rosenblatt and O’Brien, JJ., concur.