New York State Court of Claims

New York State Court of Claims

JARMOLOWSKI v. THE STATE OF NEW YORK, #2001-028-571, Claim No. 101390, Motion Nos. M-64058, CM-64228


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
SAMUEL J. LURIE, ESQ.BY: Robert R. MacDonnell, Esq.
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
December 4, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion and Claimant's cross-motion:
• abNotice of Motion and Supporting Affidavits of Michael White (White Affidavit) and J. Thomas Wardell (Wardell Affidavit) and Supporting Affirmation of Michele M. Walls, Esq., (Walls Affirmation) with annexed Exhibits A- I, filed September 17, 2001.

• abNotice of Cross Motion and Affidavits in Opposition of Stanislaw Jarmolowski (Jarmolowski Affidavit), Piotr Pietrzak ( Pietrzak Affidavit), Thomas Ebro (Ebro Affidavit) with annexed Exhibit 1, Michael J. Kalsher (Kalsher Affidavit) with annexed Exhibits 1-2 and Frank Hayes (Hayes Affidavit) and Supporting Affirmation of Robert R. MacDonnell, Esq., (MacDonnell Affirmation) with annexed Exhibits 1-11, filed October 29, 2001.

• abReply Affirmation of Michele M. Walls, Esq. (Walls Reply), with annexed Exhibit A., filed November 9, 2001.

• abDefendant's Memorandum of Law, rec'd September 17, 2001.

• abFiled Papers: Amended Claim and Verified Answer to Amended Claim.

Before the Court are Defendant's motion for summary judgment and Claimant's cross-motion for partial summary judgment as to liability. Briefly, the undisputed facts that give rise to this claim are that Claimant, Stanislaw Jarmolowski, together with friends, traveled by car to Lake George to vacation over the Labor Day holiday weekend in September, 1999. It was this group's first visit to Lake George. Following their drive from New Jersey to Lake George, the Claimant, together with his friends on September 4, 1999 registered as guests at the Nomad Motel. On September 5, 1999 Claimant and his party went to visit other vacationers staying at O'Sullivan's Motel on Lake George. Together, this group proceeded to the beach area behind O'Sullivan's Motel. At the beach, an eighty foot long wooden dock extended approximately seventy feet into Lake George. Both the beach and dock were owned and operated by O'Sullivan's Motel. Claimant waded into the water from the beach on two occasions, each time venturing approximately two meters[1] from shore where the water was knee-deep. Thereafter, Claimant and his friend "Mirek" [2] went onto the dock for the purpose of jumping into the lake. Approximately halfway out onto the dock, Claimant picked up his pace and proceeded in front of Mirek to the end of the dock where he attempted a headfirst dive into the water. Unbeknownst to Claimant, the water at the end of the dock was less than three and one -half feet deep. In effectuating the dive, he struck his head on the lake bed, rendering himself a quadriplegic.

Pursuant to the Public Health Law, facilities such as O'Sullivan's Motel, referred to as temporary residences, are required to be inspected annually by the Department of Health and operate under a certificate of occupancy issued by DOH on an annual basis. These inspections include, inter alia, observation of the bathing beach and pool facilities, if any, for compliance with the New York State Sanitary Code (Sanitary Code). O'Sullivan's Motel was inspected on July 28, 1999 (see, Walls Affirmation, Exhibit I, copy of inspection form). Pursuant to the Environmental Conservation Law, O'Sullivan's Motel was required to pay an annual fee to the Lake George Park Commission for placing its dock into Lake George.

Defendant asserts that it can not be held liable for the "negligent inspection" of the dock or bathing beach at O'Sullivan's Motel as such actions were immune as discretionary acts (Walls Affirmation, ¶29); or for the lowering of the water level in Lake George which was beyond the State's control (Id., ¶ 30, Wardell Affidavit) and that absent a special relationship the actions of DOH in furtherance of the Public Health Law and Sanitary Code are governmental in nature for which the State can not be cast in liability (Id., ¶ 31). Lastly, defendant asserts that claimant's actions were the cause of his injuries (Id., ¶ 32).

Claimant, in response to Defendant's motion and in support of his cross-motion, clarified the theories of liability upon which he was proceeding as follows:
Defendant's brief erroneously attacks claims never made by plaintiff [sic]. Plaintiff [sic] has not based his case against the State by claiming the State is liable simply because it negligently inspected this dock, nor does plaintiff [sic] claim that the State is liable simply because it failed to enforce the Sanitary Code against a third party. The provisions of the Sanitary Code are relevant to plaintiff's claim only insofar as it sets forth a standard of conduct which binds the State as landowner, and its violation constitutes some evidence of negligence. In addition to the State's failure to adhere to its Code's standards, the State is also liable under common law negligence for failing as a landowner to maintain its property in a safe condition in view of foreseeable dangers.

(MacDonnell Affirmation, ¶ 10; see also, Id at ¶ 70, [Plaintiff [sic] never claimed the State owed him a special duty]). In reply, the State argues that it owes no duty simply by virtue of its ownership of the lake bed (Walls Reply ¶ 9) and that the provisions of the Sanitary Code do not apply to it in this instance.

The court's obligation, on a motion for summary judgment, is "issue-finding, rather than

issue-determination" (Ferrante v. American Lung Ass'n, 90 NY2d 623, 630; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Vopelak v Tedeschi, 281 AD2d 809, 811). The rule governing summary judgment is well established. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562). "[R]egardless of the sufficiency of the opposing papers" in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable (Ayotte v Gervasio, 81 NY2d 1062, 1063, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324). In a negligence claim, the claimant will generally be entitled to summary judgment only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the claimant's conduct either was not really involved or was clearly of exemplary prudence in the circumstances (Andre v Pomeroy, 35 NY2d 361, 365 [citation omitted]).

Upon the Court's review, it appears that Claimant has carefully based his breach of duty argument on the State's position as landowner so as to avoid dismissal of this claim based upon the State exercising a purely governmental function; namely, the regulation and inspection of temporary residences such as O'Sullivan's Motel (see, Joslyn v Village of Sylvan Beach, 256 AD2d 1166 [ summary judgment properly granted to County based on allegation of failure to enforce against beach owner provisions of Sanitary Code absent special duty]; see also, Putnam Lake Community Council Bathing Beaches v Deputy Com'r of State of New York, 90 AD2d 850; Rainbow Beach Ass'n, Inc. v New York State Dept. of Health, 187 AD2d 891 [State Sanitary Code, 10 NYCRR 6.1 et seq., was enacted for the purpose of promoting and protecting public health]).

As a general rule, it is well established that a landowner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances, which include the likelihood of injury to third parties, the potential that any such injury would be of a serious nature, and the burden of avoiding the risk (Basso v Miller, 40 NY2d 233, 241). The duty owed by the State to individuals who enter upon State-owned property is the same as that of any other landowner: to maintain the premises in a reasonably safe condition under the prevailing circumstances (see, Basso v Miller, supra, at 240-241; Matter of Boettcher v State of New York, 256 AD2d 882). However, it is well settled that "[t]he State is not ... under an obligation to insure against every injury incurred" on its premises (Matter of Boettcher v State of New York, supra, at 882; see, Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874, 875). The State, as a landowner, has a duty to exercise reasonable care in the maintenance and control of its parks to prevent injury to foreseeable users of its facilities (Preston v State of New York, 59 NY2d 997). Where it conducts dangerous activities or allows dangerous conditions to exist, the State must undertake reasonable measures to prevent an injury or neutralize the condition (Preston v State of New York, supra, 59 NY2d at 998-999; Scurti v City of New York, 40 NY2d 433, 441-442). Whether the State undertook reasonable measures in this case "requires a factual weighing of the severity of potential injuries against the burden on the landowner to avoid the risk" (Mesick v State of New York, 118 AD2d 214, 217, lv. denied 68 NY2d 611) Fundamentally, a landowner is not an insurer of the safety of those present on his or her property and no liability will be imposed for an injury resulting not from any condition present on the land but from the manner in which the injured party engaged in a voluntary activity over which the landowner exercised no supervision or control (see, Prairie v. Sacandaga Bible Conference Camp, 252 AD2d 940) .

"Liability for negligence may result only from the breach of a duty running between a tortfeasor and the injured party." Kimmell v Schaefer, 89 NY2d 257, 263). "Although the existence of a duty is an issue of law for the courts [citation omitted], once the nature of the duty has been determined as a matter of law, whether a particular defendant owes a duty to a particular plaintiff is a question of fact" (Id., 89 NY2d at 263). In this particular instance, this Court is constrained to acknowledge that as a general proposition a landowner has a duty to use reasonable care to keep its property in a reasonably safe condition (see, Searles v Town of Horicon, 166 AD2d 867 [Brant Lake]; Paulison v Suffolk County, 775 FSupp 50 [Lower Yaphank Lake]; Taylor v Village of Ilion, 265 AD2d 841, [Steele Creek] ). Whether there exists a duty in this claim and whether that duty extends to the State and this particular claimant cannot be resolved on summary judgment.[3] The role of the Lake George Park Commission, a statutory creature (see, ECL§ 43-0101, et seq. and White Affidavit) whose legislative charge is, inter alia, to "regulate the use of the lake and area near or adjacent thereto for appropriate residential, conservation, health, recreational and educational purposes" (ECL § 43-0101) is not settled on the record. The Court is aware that the Park Commission issues a permit to property owners who desire to extend a dock into Lake George (Walls Reply, ¶ 5), and that there is a statutorily prescribed annual fee for such docks (ECL § 43- 0125) however, to what extent, if any, the Park Commission can exercise control over that dock is unanswered.[4] In the Court's view, the State's role cannot be resolved on the papers submitted herein. It may be that of a lessor; or, the State may exercise the level of control over the Lake George recreational area to compel the Court to view the State as an operator of a park, if in fact this is a park, as suggested by Claimant (Affidavit, ¶¶ 2, 80[i] )[5], or the State may be acting in its governmental capacity overseeing an area "forever wild" (Walls Reply ¶28). Moreover, unanswered are questions regarding the interplay, if any, between the annual inspections of temporary residences conducted by the Department of Health and the Park Commission as they may relate to notice of unsafe, dangerous or noncompliant situations along the lakefront.[6] The fact that the State is acting in a proprietary capacity does not mean, however, that it may be held liable in every circumstance in which liability could be imposed upon a private landowner (see, Weiner v Metropolitan Transportation Auth., 55 NY2d 175, 182). Claims against the State which are alleged to arise out of its ownership of land must be carefully scrutinized to determine whether the alleged act or omission implicates a proprietary responsibility or a governmental one (Miller v State of New York, 62 NY2d 506, 513; McEnaney v State of New York, 267 AD2d 748, 750). Notwithstanding the parties respective arguments, the record, for the reasons stated, does not permit the Court, as a matter of law, "[t]o pinpoint a spot along the continuum [between proprietary and governmental functions] where the complained -of act should be categorized" (Sebastain v State of New York; 93 NY2d 790, 794).

Defendant urges the Court to find Claimant's conduct in diving into the lake head first was an assumption of risk based upon both his experience as a swimmer and his disregard of the words "no diving" written on the dock (Walls Affirmation, ¶ 32). Assuming arguendo the existence of a duty owed by defendant to claimant, it is established that a defendant is relieved of liability where, after his negligence, an unforeseeable superseding force intervenes which breaks the chain of causal connection and itself causes the injury (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Mesick v State of New York, 118 AD2d 214, 218 ). Further, a claimant's own conduct may be a superseding force absolving a negligent defendant from liability (see, e.g., Olsen v Town of Richfield, 81 NY2d 1024; Smith v Stark, 67 NY2d 693; Boltax v Joy Day Camp, 67 NY2d 617, 620). There is growing support for the proposition, particularly in diving cases, albeit with dissent, that the diver's conduct of diving into water of unknown depth, is such an act of recklessness as to constitute a superseding cause (see, e.g. Lionarons v General Electric Company, 215 AD2d 851, affd 86 NY2d 832 [reckless dive into water he could only assume was of sufficient depth]; Johnson v Harrington, 215 AD2d 857 appeal denied 87 NY2d 802 [diving into water at night without local knowledge]; Butler v Marshall, 243 AD2d 971; see also, Mortis v Dittl, 275 AD2d 940 [4th Dept.]). However, in order to be a superseding cause, a plaintiff's negligence must be more than mere contributory negligence, which would be relevant in apportioning culpable conduct. Rather, such conduct, in addition to being unforeseeable, must rise to such a level of culpability as to replace the defendant's negligence as the legal cause of the accident. In this Court's view, claimant's conduct is an issue of fact to be resolved at trial particularly, where, as here, the dock extended a distance into the lake. There exists material questions of fact, inter alia, regarding what claimant observed - was "no diving" written upon the dock, and if so, where;[7] what claimant could have readily observed - was the lake bed visible from the end of the dock; and did two people dive into the water from that dock prior to claimant's unfortunate leap.

On the basis of the foregoing discussions, it is abundantly clear that there are so many issues to be determined, such an admixture of questions of law and fact, that disposition of this matter on the basis of the submissions presented to the court, is inappropriate and that a trial is necessary.

Accordingly, the motion and cross-motion are each denied in their entirety.

The parties shall appear ready for trial on December 11, 2001 at 10:00 a.m. at the Court of Claims, Justice Building, 7th Floor, Courtroom 2, Albany.

December 4, 2001
Albany, New York

Judge of the Court of Claims

[1] The Claimant was originally from Poland. His deposition was conducted through an interpreter.
[2] Claimant's deposition identifies the individual as "Mirek" and Claimant's papers included an affidavit from Piotr Pietrzak, who identifies himself as the individual who went onto the dock with Claimant.
[3] Foreseeability of injury does not determine the existence of duty. The duty owed by one member of society to another is a legal issue for the courts. While moral and logical judgments are significant components of the analysis, the Court is also bound to consider the larger social consequences and to tailor duty so that the legal consequences of wrongs [are limited] to a controllable degree (Eiseman v State of New York, 70 NY2d 175, 187).
[4] The affidavit of Michael White, Executive Director of the Lake George Park Commission, explains the permitting process but does not satisfy the Court that the Park Commission is powerless to address a situation such as is presented in this claim.
[5] See also, Bacorn v State of New York, 20 Misc 2d 369, 373, [Lake George is a large and important public body of water, title to which and sovereign power over which is in the State. The reach of that power in trust for the People is as great as the uses and possibilities of the lake for navigation, as a water-power reservoir and not excluding recreational uses] suggesting the State's role in administering Lake George is more akin to a governmental function rather than a proprietary one.
[6] These issues also raise material questions of fact regarding notice to the Defendant (see, Gordon v American Museum of Natural History, 67 NY2d 836, 837).
[7] Contrary to Claimant's assertion (MacDonnell Affirmation, ¶ 21), the Affidaivt of Frank Hayes does not address the actual condition of the dock at the time of plaintiff's [sic] accident.