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October 1, 1991


The opinion of the court was delivered by: Wexler, District Judge.


In the above-referenced action, plaintiffs Lee Paulison, Jr., ("plaintiff" or "Paulison"), and his parents, Lee Paulison, Sr. and Linda A. Paulison sue defendants Suffolk County ("the County") and the Town of Brookhaven ("the Town") to recover damages for permanent spinal injuries sustained by Lee Paulison, Jr. when, on July 16, 1988, he dove from a tree diving platform into shallow water of Lower Yaphank Lake (the "lake") in Yaphank, New York. Paulison alleges that the County and the Town were negligent based on, inter alia, the failure to use reasonable care to maintain the premises in a safe condition. Currently before the Court are motions by all parties for summary judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. After a brief statement of the background facts, the Court will turn to address the motions.


As noted above, the site of the accident at issue is Lower Yaphank Lake, located adjacent to Yaphank Avenue, in Yaphank, Town of Brookhaven, County of Suffolk, New York. County Road 21 ("C.R. 21") runs approximately six or seven feet roughly parallel to the waters' edge of the lake. According to the papers, plaintiff Lee Paulison was nineteen years old at the time the accident occurred on July 16, 1988. Plaintiff had been to the lake prior to the date of the accident, on the Fourth of July weekend, for between half an hour to an hour. On that prior visit, he climbed over a low guardrail at the edge of the roadway to get to the lake. Apparently, the distance between the guardrail and the shoreline is three to four feet. There were no bouys or flags on the lake, no lifeguards, no fences, nor signs prohibiting swimming, diving or trespassing along the lake. According to plaintiff, the only signs at the lake prohibited littering.

Plaintiff claims to have observed, on that prior visit, the tree from which he would eventually dive on his next visit. The tree was stripped and had horizontal wooden slats or "steps" nailed to the trunk, which lead to a two-by-six wooden board on top of the tree. There was also a rope hanging from the tree, about fifteen feet off the ground, from which people could apparently swing and jump into the water. The depth of the water near the tree was estimated to be four to five feet. Approximately twenty to thirty feet to the left of the tree was a wooden platform on a watergate ("watergate" or "sewage gate"). The depth of the water by the watergate was between seven and eight feet, a drop of approximately five feet from the tree area. There were no signs indicating the drop in depth between the tree and watergate. Plaintiff denies knowledge of the shallow depth of the water by the tree, since on his earlier visit he swam near the watergate area.

On his first visit, plaintiff observed three people dive from the tree headfirst, although plaintiff himself did not dive from the tree. In addition, plaintiff claims he did not see anyone standing in the water near the tree since the divers exited the water by the watergate. According to the papers, plaintiff dove head first from the watergate several times on the earlier visit, and exited the lake by the watergate.

On July 16, 1988, plaintiff was at the lake for one and one-half hours before his injury occurred. All events that occurred were witnessed by plaintiff's companions and recorded during depositions, since plaintiff has no memory of the accident. It is alleged that when he arrived at the lake, several people were swimming, and some of those were diving from the tree platform.

After plaintiff dove from the watergate and swam for twenty minutes, he stood in a line of approximately ten to fifteen people that had formed to jump from the tree. Plaintiff dove straight up and straight down from the tree platform, entering headfirst into the water, and struck his head on the bottom of the lake. Plaintiff's companion, Joseph Boyle, found plaintiff lying on the bottom of the lake and pulled him out of the water. The County has stipulated to the fact that it owns and operates Lower Yaphank Lake three hundred feet west of C.R. 21, which area encompasses the site of the accident.

Plaintiffs commenced this action to recover damages for personal injuries sustained by Lee Paulison, Jr., which have rendered him permanently disabled and a quadriplegic. Plaintiffs allege negligence on the part of the Town and the County by reason of their failure to exercise reasonable care in their management, ownership, operation and control of the property. As noted above, each party currently moves for summary judgment.

The County alleges that the proximate cause of plaintiff's injuries was his reckless action in diving from the tree into the shallow water of the lake. The County claims that there was no duty to warn since the hazard was apparent, particularly in light of plaintiff's familiarity with the site. In addition, the County argues that the maintenance, operation and control of the lake rests, in part, with the Town of Brookhaven Department of Planning, Environment and Development. More specifically, the County alleges that the Town owed a duty of care with respect to the destruction of vegetation in Lower Yaphank Lake, and that the destruction or alteration of the "diving" tree falls within the wetlands ordinance which the Town allegedly failed to enforce.

The Town seeks to dismiss both plaintiffs' complaint and the County's cross-claim on the ground that it cannot be liable for the accident which took place on land owned by the County. More particularly, the Town argues that since it is undisputed that the County owns the land and portion of Lower Yaphank Lake in question, the Town owed no tort duty to the other parties.

As to the County's allegation that the Town failed to enforce a flood prevention ordinance, the Town claims that there is no proof that the Town's flood prevention plan has anything to do with the depth of Lower Yaphank Lake. In addition, the Town claims that the County has made no showing to establish the Town's alleged failure to enforce its wetlands preservation ordinance.

Plaintiff argues that the proximate cause of his injuries was, inter alia, the County's negligence as a landowner and its violations of the New York State Sanitary Code, promulgated under authority of New York Public Health Law ยง 225. See Plaintiff's Notice of Cross-Motion at exhibit B. Plaintiff contends that the lake falls under that statute's definition of a bathing beach, and claims that the County permitted this site to be used for years as a bathing beach due to the continued open and notorious use of the area for swimming, jumping and diving. Plaintiff ...

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