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DEWICK v. VILLAGE OF PENN YAN

July 14, 1997

AMBER DEWICK, Individually and as Administratrix of the Estate of Daniel Dewick, deceased and MAYNARD KERRICK, Individually and as Administrator of the Estate of Trina Kerrick, deceased, Plaintiffs,
v.
VILLAGE OF PENN YAN, VILLAGE OF PENN YAN PARKS DEPARTMENT, MAYOR NISSEN, TRUSTEE R. HAMILTON, JR., TRUSTEE L. MACKERCHAR, and TRUSTEE J. MACIEJEWSKI, Defendants.



The opinion of the court was delivered by: LARIMER

 INTRODUCTION

 Defendants now move for judgment on the pleadings to dismiss the complaint for failure to allege a constitutional violation. *fn1" For the reasons set forth below, defendants' motion is granted and the complaint is dismissed.

 BACKGROUND

 On June 19, 1995, Trina Kerrick ("Kerrick"), was swimming in Keuka Lake at Indian Pines Village Park in the Village of Penn Yan. She apparently was not a strong swimmer and at some point she began to have difficulty staying afloat. Plaintiffs contend that there was a steep drop-off from a sandbar in the area where Kerrick was swimming caused by a strong undercurrent. The current was allegedly caused by a utility plant owned by the Village of Penn Yan, located on a channel between Keuka Lake and an adjacent lake.

 Kerrick apparently was caught in the current, found herself in deep water and began to struggle in the water. Daniel DeWick ("DeWick") heard Kerrick's cries for help and attempted to rescue her. He, too, was not a strong swimmer. Unfortunately, the rescue attempt failed, and both Kerrick and DeWick drowned.

 The parties dispute whether the beach was officially open for bathing on the day of the accident. Defendants contend that the beach was not open for swimming, no lifeguards were present, and that a sign was posted at the beach warning bathers that no swimming was permitted while lifeguards were not on duty.

 The representatives of both Kerrick and DeWick commenced this action in federal court. *fn2" In the federal complaint, plaintiffs allege a breach of due care toward both decedents and set forth several acts of negligence on the part of defendants. Plaintiffs contend that defendants knew or should have known that bathers were using the beach at the time of the accident and were negligent in: (1) failing to patrol the beach area to keep bathers out of the water; (2) failing to provide adequate lifesaving equipment or personnel; and (3) failing to put swimming buoys in place and adequately mark the drop-off area or warn of the danger it posed.

 In Count 2 of the complaint, plaintiffs set forth their civil rights claim which is the subject of the pending motion. Plaintiffs contend that the defendants' actions violated decedents' constitutional rights because the "intentional wanton and willful" acts of defendants deprived both decedents of life without due process of law. Plaintiffs claim that defendants engaged in a policy of failing to properly train or supervise village employees to keep bathers out of the water when the beach was not open to the public and that this policy or practice amounted to deliberate indifference to a known risk of danger.

 DISCUSSION

 I. Plaintiffs' Constitutional Claims

 The Due Process Clause of the Fourteenth Amendment provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law." The Supreme Court has stated that the Due Process Clause was "intended to secure the individual from the arbitrary exercise of the powers of government." Daniels v. Williams, 474 U.S. 327, 331, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986) (citations omitted). The Court has been reluctant, however, "to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. City of Harker Heights, 503 U.S. 115, 125, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992). Thus, the Due Process Clause guards against governmental conduct that "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense," Collins, 503 U.S. at 128 at 1070; simple negligence is ...


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