                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 24, 2014                     517949
________________________________

MICHAEL TOYRYLA,
                    Respondent,
     v                                      MEMORANDUM AND ORDER

MICHAEL ST. DENIS et al.,
                    Appellants.
________________________________


Calendar Date:   May 27, 2014

Before:   Lahtinen, J.P., McCarthy, Garry, Lynch and Clark, JJ.

                             __________


      Law Office of Karen L. Lawrence, Dewitt (Marshall D.
Sweetbaum of Sweetbaum & Sweetbaum, Lake Success, of counsel),
for appellants.

      Williamson, Clune & Stevens, Ithaca (Allan C. VanDeMark of
counsel), for respondent.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Rumsey, J.),
entered July 30, 2013 in Cortland County, which denied
defendants' motion for summary judgment dismissing the complaint.

      On April 2, 2010, plaintiff was seriously injured when he
dove off a dock at the home of defendants – his sister and
brother-in-law – on Cayuga Lake. The day was unseasonably warm,
in the mid-80s. When plaintiff arrived, he joined the other
adults on the dock, while the children went swimming. The T-
shaped dock had a wooden ladder attached at the top of the T,
facing the shore. Plaintiff and his wife discussed whether
plaintiff would join her in a "polar plunge," but he declined,
indicating that he did not intend on going in the cold water.
                              -2-                517949

After a brief period, defendants and the children went into the
house, leaving plaintiff alone on the dock with his wife, and
they ultimately decided to dive into the lake. Standing on a
rung of the wooden ladder just above the water line, they dove
toward the shore. Plaintiff struck his head on the lake bottom,
suffering a tragic spinal chord injury that rendered him a
quadraplegic.

      Plaintiff commenced this negligence action claiming that
defendants failed to warn him that the water level in Cayuga Lake
was lower in the spring than during the regular summer swim
season. Following depositions, defendants moved for summary
judgment dismissing the complaint, contending that they had no
duty to warn plaintiff of the water levels since he had stated
that he had no intention of going in the water. Defendants also
argued that plaintiff's own reckless conduct was the sole
proximate cause of the accident. Supreme Court denied the
motion, and defendants now appeal.

      We affirm. In determining the propriety of the denial of
defendants' motion for summary judgment, we view the evidence in
the light most favorable to plaintiff, the nonmoving party (see
Branham v Loews Orpheum Cimemas, Inc., 8 NY3d 931, 932 [2007]).
In their submissions, defendants explain that Cayuga Lake water
levels are seasonably controlled in that the levels are lowered
in the fall to account for snowmelt and storm runoff to avoid
flooding, and increased in the spring. Defendants admitted that
they were aware of the water fluctuation, while plaintiff and his
wife denied having any such knowledge. There is no dispute that
plaintiff frequently swam at defendants' property, and often dove
off the dock. By plaintiff's account, the water was normally
about six feet deep near the ladder. Defendant Michael St. Denis
acknowledged that the water level was "pretty low" in April 2010.
Importantly, there is nothing in defendants' submissions to
refute the testimony of plaintiff's wife that you could not see
the lake bottom on the day of the accident.

      A landowner's duty to maintain property in a reasonably
safe condition and the duty to warn others of a dangerous
condition are distinct obligations (see McDonald v City of
Schenectady, 308 AD2d 125, 128 [2003]). The dangerous condition
                              -3-                517949

alleged by plaintiff here arises out of the reduced water level,
not from an unsafe condition on the dock. As a general rule, a
landowner's duty to warn people on his or her property of an
unsafe condition does not extend to open and obvious dangers (see
id. at 126). It is generally foreseeable that people will dive
off a dock, and there is no dispute here that diving off
defendants' dock was a regular occurrence during the summer
swimming season.

      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. Michael St. Denis 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 (see Kriz v Schum, 75 NY2d 25, 34 [1989]).
Whether defendants breached their duty of care by failing to
inform plaintiff of the reduced water level also remains a
question of fact (see Coe v Ta-Ga-Soke Campground, Inc., 162 AD2d
980, 981 [1990]). 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 (see Ziecker v Town of Orchard Park, 75
NY2d 761, 763 [1989]; Kriz v Schum, 75 NY2d at 36; Searles v Town
of Horicon, 166 AD2d 867, 868 [1990]; compare Tkeshelashvili v
State of New York, 18 NY3d 199, 206 [2011]; Johnson v Harrington,
215 AD2d 857, 858 [1995], lv denied 87 NY2d 802 [1995]).
Accordingly, defendants' motion for summary judgment was properly
denied.

     Lahtinen, J.P., McCarthy, Garry and Clark, JJ., concur.
                        -4-                  517949

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
