Summary
finding no liability on the part of defendant where plaintiff jogged into waist-deep water, executed a surface dive, and struck his head on a submerged sandbar, and ruling that "[u]nder Herman, property owners are relieved of the duty to warn of sandbars"
Summary of this case from Brown v. U.S.Opinion
October 22, 1990
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the order and judgment is affirmed, with costs, one bill of costs payable to the respondents appearing separately and filing separate briefs.
On July 22, 1985, the plaintiff and a friend went swimming in East Hampton, New York, at a place known as "Waves Beach". The plaintiff jogged about 10 yards into the surf until the water was up to his waist and made a surface dive. He hit his head on a submerged sandbar and as a result sustained serious and permanent injuries.
The trial court correctly granted summary judgment in favor of the defendants pursuant to the principal enunciated in Herman v State of New York ( 63 N.Y.2d 822, affg 94 A.D.2d 161), a case involving almost identical facts. Under Herman, property owners are relieved of the duty to warn of sandbars. The imposition of such a duty would be impractical, owing to the transitory nature of sandbars (see also, La Rocco v. State of New York, 8 A.D.2d 644). The plaintiff's efforts to distinguish Herman are unavailing. Moreover, a person who participates in a sport such as swimming assumes the reasonably foreseeable risks inherent therein (see, Herman v. State of New York, 94 A.D.2d 161, 164, affd 63 N.Y.2d 822, supra; see also, Sartoris v. State of New York, 133 A.D.2d 619). Bracken, J.P., Sullivan, O'Brien and Ritter, JJ., concur.