Sessv.McGorry

Supreme Court, Suffolk CountyJul 1, 2019
620663/17 (N.Y. Sup. Ct. 2019)
620663/172019 N.Y. Slip Op. 51106

620663/17

07-01-2019

Tristan Sess, Plaintiff, v. Mary McGorry and KEN MCGORRY, Defendants.

David J. Raimondo & Associates 2780 Middle Country Rd. Suite 312 Lake Grove, NY 11755 For Plaintiff Braff Harris & Sukoneck 570 W. Mt. Pleasant Ave, #200 Livingston, NJ 07036 For Defendants


David J. Raimondo & Associates 2780 Middle Country Rd. Suite 312 Lake Grove, NY 11755 For Plaintiff Braff Harris & Sukoneck 570 W. Mt. Pleasant Ave, #200 Livingston, NJ 07036 For Defendants Carmen Victoria St. George, J.

The following numbered papers were read upon this motion: Notice of Motion/Order to Show Cause 17-22 Answering Papers 27-40 Reply 43 Briefs: Plaintiff's/Petitioner's 41 Defendant's/Respondent's

Defendant homeowners in this premises liability action seek summary judgment dismissal of the complaint brought by their son's acquaintance, plaintiff Tristan Sess. Plaintiff was an invited guest on defendants' Westhampton Beach property and he became injured when he dove off the defendants' dock into shallow bay water on July 30, 2015, at approximately 1:30 a.m.

Relevant Background

While there are some discrepancies among the parties' testimony regarding details of the activities occurring on July 29, 2015 into the early morning hours of July 30th, they are not particularly relevant to the issues before the court. The following recitation of the factual background is based upon a reading of the deposition transcripts annexed to the defendants' motion papers.

In support of the instant motion, defendants submit their answer and the deposition testimony of plaintiff, defendants' son Patrick McGorry, and plaintiff's former girlfriend Katie Condron.

At the time of the incident, plaintiff was nineteen (19) years old and he was enlisted in the United States Navy, having previously attended the United States Merchant Marine Academy (USMMA) for approximately one and one-half (1 ½) years immediately prior to his enlistment. Plaintiff graduated high school in 2013, and by July 2013, he had entered the USMMA. He sought to apply for what is known as an "officer's contract" with the Navy SEALs upon his graduation from the USMMA; however, in March 2015 plaintiff determined that his chances of obtaining an officer's contract were low. Plaintiff decided to leave the USMMA in March 2015 and enlist in the United States Navy. Plaintiff was also an experienced sailor, having begun sailing at age seven and competing in sailing activities at age nine.

Navy "SEALs" is the acronym for the United States Navy's Sea, Air, and Land Teams.

Patrick McGorry is the son of the defendants. Plaintiff met Patrick McGorry in what McGorry described as a Navy special warfare mentor program. McGorry also aspired to one day become a Navy SEAL; however, he explained that being accepted into the mentor program does not mean that the person will become a SEAL. According to McGorry, "[t]he mentor program basically gets candidates for any special warfare contracts prior to enlisting in the Navy." The fact that a candidate may have a "contract" with the SEALs simply permits that person to "try out and go to BUD/S," which is the "process that you have to go through and the schooling to become a Navy SEAL, which has a high attrition rate." McGorry testified that only approximately ten to fifteen percent complete BUD/S and obtain a trident, which is the symbol of a Navy SEAL. McGorry himself did not complete the training because he injured his back in dive school; nevertheless, at the time of his deposition he was enlisted in the Navy as a combat medic and pharmacy technician stationed at a Naval hospital in Guam.

"BUD/S" is the acronym for Basic Underwater Demoliton/SEAL Training.

In 2015, plaintiff, McGorry and at least two other young men involved in the mentor program made it a habit to train together at a location near the McGorry summer home located in Westhampton Beach, New York. After the training sessions, the group would go to the McGorry summer home to barbecue, eat, and swim in Moriches Bay. Defendants' home has a dock with a boat slip that extends out into the Bay. According to the testimony, plaintiff had been at the McGorry home at least once prior to the date of the incident to eat and swim following training.

Plaintiff testified that he went to the McGorry home approximately one week before his accident. When he was there on that prior occasion, the group of young men barbecued and went into the Bay for a swim after they trained. In fact, they swam across the Bay. Plaintiff did not remember if he went into the water on that occasion at high or low tide. He also did not remember if he dove off the dock on that prior occasion. There is a ladder attached to the dock that leads into the water. Plaintiff recalled that he did not use the ladder; they jumped off the dock into the Bay on that prior occasion. In total, they spent "a fair amount" of time in the water and "multiple hours" at the house according to plaintiff. Plaintiff also recalled that he went into the water after it was dark outside but going into the water in the darkness did not concern him on this previous occasion. Plaintiff also testified that he did not recall the dock as being unsafe when he used it on that prior visit.

Plaintiff knew, in general, that the Bay was a tidal body of water. He had also been to the beach on the Bay and had sailed on the Bay years earlier.

It is undisputed that the dock where the incident occurred had no signs of any kind posted on it, including any signs concerning tidal fluctuations or indicating that the dock was under construction. It is also undisputed that there was an operational floodlight on a post that was located at the end of the dock closest to land (landward), but that there was no light at the end of the dock that protruded into the Bay (seaward). The light was not operated by a timer, but by an on/off switch on the post.

On July 29, 2015, in the late afternoon, plaintiff, McGorry and two or three other young men had finished their workout for that day. The group met at the McGorry Westhampton Beach home to eat and swim in the Bay. There was beer at the house on this occasion, and plaintiff testified that he had a "few beers" early in the day, but that he had his last beer as the sun was going down on July 29th. He also testified that he did not think that anyone else appeared to be intoxicated or impaired. Patrick testified that he believed plaintiff had one beer and that plaintiff was not impaired at the time of his accident.

McGorry's parents, the defendants, were not at their Westhampton Beach home on July 29th or July 30th, but they were aware that their son Patrick was having his friends come to their house following training.

During the day and evening hours of July 29th, prior to his accident at 1:30 a.m. on July 30th, plaintiff testified that he jumped off the dock at the same point where he ultimately dove into the water and struck his head on July 30, 2015. Patrick testified that, prior to the accident, in the late afternoon hours, they were "grilling, eating, and we were jumping into the water" off the dock for hours. Patrick also stated that they were "doing flips off the dock. Then we'd jump—then we'd sometimes come back in, go in the hot tub, and then we would go back out there, jump off the dock." According to Patrick, some people were diving off the dock and some were doing flips; "Sess liked to do flips." In the hours leading up to the accident, Patrick witnessed plaintiff diving off the dock "[a] couple times, but jumping off and doing flips were close to 100" times.

At about 10 p.m. on July 29th, plaintiff's then-girlfriend, Katie Condron, arrived at defendants' house with another girl. This was the first time that Katie had been to defendants' home. According to Katie, she got into the hot tub and the others went down to the dock and they were jumping into the water. When plaintiff was jumping into the water feet first from the end of the dock prior to his accident, Katie saw that when he stood up in the water it came to his chest level. Prior to the accident, Katie also observed plaintiff dive into the water from the dock. Katie got out of the hot tub and she, too, went onto the dock. As she walked to the dock, there was enough lighting to at least see the dock; however, Katie testified that when she was standing on the dock, before she eventually went into the bay waters, that she could not see the ground because of a lack of lighting. She also testified that, before she went into the water, plaintiff "said to me, be careful, it's shallow. And then I jumped in, and I was, like, out a little bit. And then they just kept jumping in and out, and . . . went to the hot tub, jumped in and jumped out. And then Tristan tried to shallow dive and that happened." According to Katie, when plaintiff told her that the water was shallow, he was standing next to her on the dock. It was only approximately ten minutes after plaintiff warned Katie about the shallow water that he dove in himself and was injured.

According to Patrick, none of the young men discussed the water's depth until plaintiff's girlfriend arrived at the house. When Katie arrived, Patrick recalled that he and the other young men had been in the water, which was waist-high at that time. Patrick testified that he was 5'10'' tall and plaintiff was 5'6". During conversation when Katie first arrived, plaintiff explained to her that they had been "hanging out," grilled earlier, and had been "just jumping off the dock." According to Patrick, Katie "was, like, 'Oh, I'm down to go in the water,' and then [plaintiff] said, 'Watch out. It's shallow.'" Patrick heard plaintiff make this statement to Katie when they were all at the edge of the dock.

Patrick testified that the light on the landward side of the dock was on, that the other lights from the house were on, and that the moonlight was bright, all of which lit up the dock.

Katie did not see plaintiff dive into the water for the last time because she was facing the other way. At the location where she was in the water at the time plaintiff dove in, the water was "[p]robably [at her] chest level." She was approximately 20 yards away from plaintiff when he dove in, and the water where she was located was deeper than the water closer to the dock.

Katie believed that plaintiff could see her in the water before his accident. She never thought to herself on the night of the accident that it was too dark or that she could not see. She became aware that plaintiff was hurt when he said he could not swim. Katie held his head above water and "the guys came down and helped him." Katie testified that the others were at the dock area, near the shore when the accident occurred. According to Katie, the young men put their arms under plaintiff and pulled him up onto the dock from the water.

According to Patrick, who did not witness the accident because he was inside the house, he heard screaming and he ran outside to the dock. Two of the other young men were already in the water assisting plaintiff, and they lifted the plaintiff up to Patrick who was standing on the dock. Patrick estimated that it was about four feet of distance from the water to the dock. The two young men were standing in water a little bit below their waist heights when they lifted plaintiff up onto the dock. Patrick recalled being able to see his friends' feet in the water as they handed plaintiff to him. Patrick testified that his two male friends, Katie, and plaintiff himself told Patrick that plaintiff dove in head first, hit his head against the bottom of the bay and became injured.

After the accident, Patrick observed that the tide "was on its way out. I would say it was a little bit below their waist height," but Patrick did not know if the tide was at its lowest point at the time of the accident.

At the time of his deposition on June 6, 2018, plaintiff was working for a pool company during the summer, cleaning and servicing pools and helping with pool construction on occasion. Plaintiff was also a student at Western State Colorado University studying exercise and sports science, about to enter his senior year. Plaintiff lives in Colorado during the school year. In addition to his experience sailing since he was seven years old, plaintiff testified that he also sailed in college. He had not sailed for the two summers prior to his deposition because he was busy working, not because of the subject accident.

Prior to his first visit to the defendants' home, plaintiff acknowledged that he had an understanding about the hazards of diving off a dock and into a bay just as he would have "the same concerns of diving into a shallow end of a pool." The specific concern that plaintiff had was that "[y]ou can hit your head" and hurt yourself. Plaintiff was generally aware that diving into shallow water could be a hazard, but he testified that he "didn't know that there was a danger of shallow water around the dock." On his first visit to the defendants' home, he said that the water was "deep enough to swim," and that he did not remember being able to stand up in the water during his first visit to defendants' home.

Plaintiff also acknowledged that, in his experience, when walking into the water from a beach, the water is usually shallow and gets deeper as you walk further into the water. In looking at a photograph during deposition, plaintiff demonstrated his familiarity with tides when he was asked what time of day the photo was taken. Although he did not know the time of day, plaintiff stated that the photo appeared to have been taken at low tide because "[y]ou can see a lot of growth on the ground. That would normally be underwater during high tide."

When asked what plaintiff thought the defendants did wrong that caused his accident, plaintiff responded that "[t]he dock that I was on I just could not tell how deep the water was. There was no signs of any nature specifying that. No lighting. I later found out the dock was under construction. I also did not have any notice of that." Plaintiff did not explain how the dock being "under construction" would have altered his behavior. Although plaintiff testified that he would not have dove off the edge of the dock if he had known how shallow the water was, he took responsibility for diving off the dock without knowing the depth of the water.

Plaintiff also marked a photograph with a line and an "X" to indicate the location from which he dove off the dock. He explained as follows: "I dove off for like a shallow dive. Upon entry into the water I hit my head on the bottom." Plaintiff explained what he meant by a "shallow dive" by testifying, "I put my hands above by head and I was going to try to go in at say—I don't know, something less than a 45-degree angle." Further according to plaintiff, "in my experience unless it is say 10 feet or more deep you should not dive straight down. So even in deep pools you don't want to do that. . . [b]ecause you could hit your head on the bottom." Plaintiff did not recall what happened to his hands, but he was "sure they hit the ground but it was not enough to stop my fall."

The Parties' Contentions

Plaintiff claims in his Bill of Particulars that the defendants negligently caused his injuries by permitting dangerous and defective conditions to exist on their property. The dangerous and defective conditions as alleged by plaintiff are the lack of all-weather lighting on the dock at the point of entry into the water, in violation of the Town of Southampton Code, lack of warning signs concerning tide changes, lack of a dock permit, lack of "under construction" signs, failure to obtain a certificate of completion for the dock under construction, failure to prohibit use of the dock, and failure to supervise/negligent supervision of the invitees on their property.

In moving to dismiss the complaint, defendants argue that plaintiff's actions were the sole proximate cause of his injuries, and that he assumed the risk of participation in recreational water activities. Having been to the defendants' home on at least one prior occasion and having engaged in the same activities as he did on the date of the incident, plus the fact that plaintiff was an experienced sailor, aspiring Navy SEAL, was aware of the depth of the water, and was someone familiar with water-related activities, plaintiff was fully able to comprehend the risk of diving into shallow water. Accordingly, when he did so and became injured, defendants claim that plaintiff's actions were the only cause of his injuries, thereby entitling defendants to summary judgment dismissal as a matter of law.

In opposition, plaintiff maintains not only that defendants have failed to sustain their prima facie burden, but that questions of fact exist, thereby precluding the granting of summary judgment. Plaintiff maintains that defendants failed to establish that their property was free of physical hazards and that defendants did not create or have actual or constructive notice of their existence. Plaintiff also maintains that defendants breached a statutory duty to have proper lighting on the dock in violation of the Town of Southampton Code, and that this breach raises a triable issue of fact. According to plaintiff, defendants also should have warned of the hazard of changing tides on the bay and recreating on the dock. Plaintiff allegedly failed to appreciate the risks, including the depth of the bay due to changing tides, because of inadequate lighting, thereby raising a triable issue of fact. Plaintiff also maintains that proximate causation is a question for the jury, and that the defenses of comparative negligence and assumption of the risk merely raise questions of fact for the jury to determine, but that these defenses do not bar plaintiff's recovery. Discussion

Summary Judgment Standard

The Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 NY2d 361[l974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]).

The proponent of a summary judgment motion must tender sufficient evidence to demonstrate the absence any material issue of fact (Winegrad v. New York University Medical Center, 64 MY2d 851, 853 [1985]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Id.) "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible for sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

Assumption of the Risk Doctrine

CPLR § 1411, adopted in 1975, provides in pertinent part that, "[i]n any action to recover damages for personal injury. . . the culpable conduct attributable to the claimant. . . including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant. . . bears to the culpable conduct which caused the damages."

In this case, one of the theories advanced by defendants to bar plaintiff from recovering damages is assumption of the risk. Despite enactment of CPLR § 1411, courts "have held that a limited vestige of the assumption of the risk doctrine—referred to as 'primary' assumption of the risk—survived the enactment of CPLR 1411 as a defense to tort recovery in cases involving certain types of athletic or recreational activities" (Custodi v. Town of Amherst, 20 NY3d 83, 87 [2012]). "Since the adoption of CPLR 1411, we have generally restricted the concept of assumption of the risk to particular athletic and recreative activities in recognition that such pursuits have 'enormous social value' even while they may 'involve significantly heightened risks'" (Id. at 88, citing Trupia v. Lake George Central School District, 14 NY3d 392, 395 [2010]). "Hence, the continued application of the doctrine 'facilitate[s] free and vigorous participation in athletic activities' (Benitez, 73 NY2d at 657), and fosters these socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from 'potentially crushing liability' (Bukowski, 19 NY3d at 358) " (Custodi, supra. at 88). Consistent with this justification each of our cases applying the doctrine involved a sporting event or recreative activity that was sponsored or otherwise supported by the defendant, or occurred in a designated athletic or recreational venue" (Id. at 88).

Benitez v. New York City Board of Education, 73 NY2d 650 (1989).

Bukowski v. Clarkson University, 19 NY3d 353 (2012).

Here, there is no question that the activities engaged in by plaintiff on July 29 and 30, 2015, including at the time of plaintiff's accident, were not part of any sporting event or recreative activity sponsored or otherwise supported by defendants. Plaintiff and his friends were simply engaged in a social gathering at defendants' summer home, hosted by defendants' son, Patrick McGorry. Moreover, diving into a body of water at 1:30 a.m. for entertainment is not the type of valuable voluntary activity that the doctrine of assumption of the risk seeks to encourage; rather, that sort of activity tends more toward the "horseplay" involved in Trupia, supra (Wolfe v. North Merrick Union Free School District, 122 AD3d 620 [2d Dept 2014] [assumption of risk doctrine not applicable to midnight game of manhunt that took place on premises of a school]).

Assumption of risk doctrine did not apply to school district whose student injured himself sliding down a stair bannister. --------

Defendants' reliance upon Jahier v Jahier (50 AD3d 966 [2d Dept 2008]) in which summary judgment was granted based on the doctrine of assumption of the risk is not dispositive of this matter considering the more recent Court of Appeals cases discussed herein. Also, unlike the evidence presented to this Court, the plaintiff in Jahier was found to be "highly familiar" with the pool at his grandparents' home; the pool had been in use for more than forty years before the accident without any incident or complaint, and defendants submitted evidence from a licensed professional engineer with experience in swimming pool construction that the pool was not constructed or maintained in violation of any town or state code on or before the date of the plaintiff's accident.

Accordingly, defendants have not established their prima facie entitlement to summary judgment as a matter of law based upon the doctrine of assumption of the risk; rather, well-settled principles of law applicable in premises liability cases apply to the defendants in this action.

Sole Proximate Causation

Alternately, defendants contend that plaintiff's conduct was the sole proximate cause of his accident; however, as property owners, defendants are charged with the duty to maintain their property in a reasonably safe condition (Katz v Westchester County Healthcare Corp., 82 AD3d 712, 713 [2d Dept 2011]). "A defendant moving for summary judgment dismissing a premises liability cause of action has the initial burden of making a prima facie showing that it neither created the defective condition nor had actual or constructive notice of its existence" (Richardson v. Brooklake Associates, L.P., 131 AD3d 1153, 1154 [2d Dept 2015]).

"Though negligence and proximate cause frequently overlap in the proof and theory which support each of them, they are not the same conceptually. Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint" (Sheehan v. City of New York, 40 NY2d 496, 501 [1976]). Although the issue of proximate cause is generally one for a jury to decide, where the premises merely furnish the condition or occasion for the occurrence of the event, rather than its cause, there is no liability (Margolin v. Friedman, 43 NY2d 982 [1978], citing Sheehan, supra at 503; Ely v. Pierce, 302 AD2d 489 [2d Dept 2003]). When only one conclusion may be drawn from the established facts, proximate cause may be determined as a matter of law (Canals v. Tilcon New York, Inc., 135 AD3d 683 [2d Dept 2016]).

As noted by the Court, plaintiff alleges various acts of negligence against defendants, namely that there was a lack of all-weather lighting on the dock at the point of entry into the water, in violation of the Town of Southampton Code, lack of warning signs concerning tide changes, lack of a dock permit, lack of "under construction" signs, failure to obtain a certificate of completion for the dock under construction, failure to prohibit use of the dock, and failure to supervise/negligent supervision of the invitees on their property.

Defendants fail to address any of the specific allegations of negligence attributed to them by plaintiff. Defendants do not even specifically state in their motion papers that their property/dock was free from defective/dangerous conditions, or that any alleged defective/dangerous condition was not the proximate cause of plaintiff's injuries, let alone submit any proof in support thereof (see Custodi, supra at 90 [defendants did not advance the argument that, assuming ordinary premises liability principles apply, their duty to make premises reasonably safe did not include a duty to alter the height differential at the base of their driveway to accommodate rollerbladers]).

There is no evidence submitted concerning the tidal fluctuations at the time and location of the subject accident. There is no evidence submitted as to defendants' compliance with the local Code or the adequacy of the lighting (cf. Wolfe, supra [defendant established that plaintiff's own conduct was sole proximate cause in part by submitting affidavit of expert who opined that lighting was sufficient to illuminate subject staircase]). Defendants do not address the alleged violation of the Southampton Town Code in their papers. There is not even any evidence submitted by defendants as to the length of the dock from which plaintiff dove so that a determination could be made by the Court as to whether defendants violated the Code. There is also no evidence submitted as to what comprised the alleged construction on the dock, or about the alleged failure to obtain a certificate of completion. Accordingly, the Court cannot begin to determine whether defendants' alleged negligence can be eliminated as substantial factor in causing plaintiff's injuries.

Defendants instead cite that plaintiff was an experienced swimmer and sailor and was in a Navy SEALs training/mentor program. Defendants further emphasize that plaintiff admits his awareness of the dangers posed by diving into shallow water, and the fact that the testimony of plaintiff's former girlfriend and that of Patrick McGorry establish that plaintiff commented on the shallow water before he voluntarily chose to dive off the dock.

The Court notes that although plaintiff admitted his general awareness of the dangers of diving into shallow water, he also testified that there was no lighting on the seaward end of the dock, that he could not tell how deep the water was, and that he would not have dove off the dock if he had known how shallow the water was.

Only the trier of fact can determine the credibility of plaintiff's statements that he could not tell how deep the water was and that he would never have dove off the dock if he knew it was shallow after it weighs all the evidence, including but not limited to plaintiff's water activity experience, his admission that he attempted to execute a "shallow dive," his time spent in the bay waters at defendants' home on the day of the accident plus one week earlier, and the testimony of Katie and Patrick.

Based upon the foregoing, it is this Court's determination that defendants have failed to establish their prima facie entitlement to summary judgment as a matter of law based upon their contention that plaintiff's actions were the sole proximate cause of his injuries.

In view of the foregoing determination, it is unnecessary to determine whether the plaintiff's papers submitted in opposition are sufficient to raise a triable issue of fact (see Levin v Khan, 73 AD3d 991 [2d Dept 2010]; Kjono v Fenning, 69 AD3d 581[2d Dept 2010]).

Defendants' summary judgment motion is denied.

The foregoing constitutes the Decision and Order of this Court. Dated: July 1, 2019 Riverhead, NY CARMEN VICTORIA ST. GEORGE, J.S.C.