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Mikhail Tkeshelashvili et al v. State of New York

November 22, 2011

MIKHAIL TKESHELASHVILI ET AL., APPELLANTS,
v.
STATE OF NEW YORK, RESPONDENT.



The opinion of the court was delivered by: Read, J.:

This opinion is uncorrected and subject to revision before publication in the New York Reports.

On a sunny late summer's afternoon --- the Saturday of Labor Day weekend in 2005 --- claimant Mikhail Tkeshelashvili, his wife and children and two male friends went on an outing to Colgate Lake, located in the Town of Jewett*fn1 in Greene County.

Colgate Lake formed following construction in 1887 of Colgate Lake Dam, a log crib and stone masonry structure, to supply water power for a saw mill at a time when logging was a major industry in the area.*fn2 The length of the 15-foot high dam was 275 feet, with two spillways. These spillways were roughly three feet below the dam's crest, and the top of the spillways was, in turn, no more than four feet above the lakebed, which was level for several feet in front of the spillway's face before gradually dropping away to the deepest part of the lake.

Colgate Lake is a quite shallow 26-acre body of water, with a mean depth of 4.6 feet and a maximum depth of 10 feet. It is fed only by the natural water runoff from the surrounding watershed. As a result, the lake's water level fluctuates seasonally depending on snowmelt and rainfall amounts: in times of relative drought, and especially during summer months, the lake recedes, but when runoff was abundant, as in the spring, water would flow over the dam's spillway. And because of its age and method of construction, the dam leaked, prompting citizen complaints and periodic repairs to the dam's impoundment or lake face: lower water levels made the lake less desirable for recreation and less aesthetically appealing, as the water would take on a brownish cast.

Colgate Lake and its environs, acquired by the State of New York in 1975, is situated in a portion of the Catskill Park Forest Preserve designated as "wild forest."*fn3 Among the four classifications of State land in the Preserve, "wild forest" is the second most pristine. As required by Article XIV of the New York Constitution, these lands are open to the public, but infrastructure and amenities are minimal so as to "protect the natural wild forest setting and to provide those types of outdoor recreation that the public can enjoy without impairing the wild forest atmosphere or changing the character of fragile areas within wild forest boundaries." Thus, other than parking lots and a connecting foot trail, Colgate Lake was undeveloped and unsupervised in 2005: there was no beach (only a grassy, open field on the edge of the lake nearest the parking lot), no designated swimming area, no lifeguards or other staff, no flush toilets (there was one privy) and no showers.

Claimant and his family made more than 20 day trips to Colgate Lake during 2005 and the preceding five years. Indeed, he could not recall exactly how many times he had visited the lake "because [there were] a lot of times." On September 4, 2005, claimant entered the water by diving from the dam's eastern spillway in the same manner as in his many past visits. He climbed onto the dam, removed his shirt and flip flops, jumped onto the spillway and "did not stop at all" before plunging into the water headfirst, with his arms outstretched over his head, attempting to dive flat and skim the water roughly parallel to the bottom of the lake. This time, though, he struck his head on the lakebed, suffering a spinal cord injury that rendered him quadriplegic. Claimant was 43 years old, 5 feet 8 inches tall and weighed 170 pounds.

Claimant acknowledged that on past visits to Colgate Lake he had observed the water flowing over the spillway, while at other times the water was below the spillway's top. He testified at his deposition that he knew the water was below the spillway on September 4, 2005, but had "no clue" how deep the water was because it was too murky for him to see the bottom. Photographs taken by an investigator from the New York State Department of Environmental Conservation (DEC) three days after claimant's accident show the water level to be perhaps two feet below the top of the eastern spillway, which means that the water was about two feet deep at the spillway's face on the impoundment or lake side. These photographs were taken the same time of day as claimant's accident occurred, and under similar sunny weather conditions. This shallowness is confirmed by the deposition testimony of one of claimant's friends, who dove in after him and hit his hands on the lake's stone bottom, bruising his palms. When he stood up, the "water was a little over [his] knees," but much deeper after "one or two steps."

Lois Keegan, who witnessed claimant's ill-fated dive, described what happened:

"I saw people, three gentlemen in their thirties, being loud, and laughing, approaching the spillway . . . [then] one man who I later learned was [claimant], remove[d] his shirt and enter[ed] the water. This man didn't hesitate, he walked right to the edge of the spillway, pulled his shirt off, and dove headfirst into the water. I thought this was unusual, because the water is shallow. After diving, the man surfaced, but I noticed he didn't lift his head."

Ms. Keegan sensed something was amiss, so she "asked the other men if their friend was ok, but they disregarded my questions, finally the skinny man said, 'He's just playing!' I knew something was wrong."

Ms. Keegan's boyfriend, Jay Ward, a certified National Ski Patrolman trained in outdoor emergency care, jumped into the water at her urging and swam out to claimant, who had floated into deeper water. Mr. Ward turned claimant over in the water, stabilized his neck and back and brought him to shore to await rescue personnel. The emergency crew arrived quickly, and claimant, who had little or no sensation in his extremities, was airlifted by helicopter to Albany Medical Center.

Claimant and his wife, suing derivatively (collectively, "claimants"), filed this claim for damages, alleging that the State negligently failed to maintain Colgate Lake and Colgate Lake Dam in a reasonably safe condition. Claimants theorized that the State was liable because the water level at Colgate Lake was prone to drop due to leaks in the dam, and "the State took no steps to warn visitors who swam and dived into Colgate Lake about the danger of lowered water levels caused by the leak."

In May 2008, claimants moved for summary judgment on the issue of liability, and the State moved for summary judgment dismissing the claim. The Court of Claims, by order entered October 6, 2008, ruled in the State's favor. Citing our decision in Olsen v Town of Richfield (81 NY2d 1024 [1993]), the judge concluded that "based upon [claimant's] substantial prior experience, [he] knew or should have known both that Colgate Lake was shallow and that the actual depth of the lake fluctuated"; therefore, his dive "constitute[d], as a matter of law, an intervening act which was so extraordinary or far removed from the [State's] conduct as to be unforeseeable" (21 Misc 3d 1113A at *9 [Ct Cl 2008] [internal quotation marks omitted]).

The judge further considered claimant's deposition testimony that he had "no clue" about the water's depth at the spillway as further support for dismissing the claim. Citing Lionarons v General Elec. Co. (215 AD2d 851 [3d Dept 1995], affd 86 NY2d 832 [1995]), he observed that "[d]espite his long experience swimming at Colgate Lake and diving from the spillway, notwithstanding his awareness that water levels at the lake fluctuated and in spite of his observation that water was not flowing through the spillway immediately prior to diving, the claimant failed to determine the level of the lake before entering the water. Furthermore, claimant stated in his affidavit that because the water was 'dark' he was unable to see the lake bottom prior to diving. A headfirst dive into 'dark' water without first determining its depth is clearly reckless conduct in circumstances, such as those present here, where the claimant was aware that the water level of the lake fluctuated. This is particularly true where the claimant, through long experience at the accident site, knew that the water was shallow. The fact that the claimant and others had successfully completed dives from the spillway of the dam on prior occasions does not render claimant's conduct any less reckless or more foreseeable" (id. [internal citations omitted]). Finally, the judge noted that although there was proof that leaks in the dam "were a continuing and long-standing problem," there was no proof, "expert or otherwise, that the rate at which the water leaked from the dam was any greater in September 2005 than it was on the many occasions [claimant] was at Colgate Lake during the preceding five year ...


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