Cimino v. Town of Hempstead
| Decision Date | 22 April 1985 |
| Citation | 110 A.D.2d 805,488 N.Y.S.2d 68 |
| Parties | Robert CIMINO, et al., Respondents, v. The TOWN OF HEMPSTEAD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Rivkin, Leff, Sherman & Radler, Garden City (Edward Hart, Frank Amoroso, Garden City, and Nancy Eisner, Baldwin, of counsel), for appellant.
Pester, Goldberg & Schiff, Carle Place (Robert F. Danzi and Mark H. Feldman, Carle Place, of counsel), for respondents.
Before MANGANO, J.P., and GIBBONS, BRACKEN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., defendant appeals from an order of the Supreme Court, Nassau County, dated June 22, 1984, which denied its motion for summary judgment dismissing the complaint.
Order reversed, on the law, with costs, motion granted, and complaint dismissed.
On August 5, 1979, plaintiff Robert Cimino suffered severe injuries when he was struck from behind by a large wave while he was exiting the water at the defendant Town of Hempstead's Malibu Beach. He thereafter commenced this negligence action against the town, alleging that the defendant, through its lifeguards, had a duty either to warn him of the existing wave conditions or to close the beach because of those conditions. We hold, as a matter of law, that neither duty existed in this case. Plaintiffs' version of the facts clearly shows that plaintiff Robert Cimino, upon first arriving at the beach, observed that the waves were high and the water conditions were generally turbulent. He was also told by other bathers that the ocean was "really rough" that day. He then entered the water and remained in it for some 20 minutes, experiencing its turbulence.
Less than two hours later, Mr. Cimino observed that the waves were 8 to 10 feet in height, and were knocking people down. He entered the water again and engaged in bodysurfing (a practice of riding the waves without a surfboard by planing on the chest and stomach) for about 15 minutes. He was then injured as he was exiting the water in order to have lunch.
We recognize that a duty of care is owed by a municipality to those who are lawfully present on its recreational premises (see Caldwell v. Village of Island Park, 304 N.Y. 268, 107 N.E.2d 441). However, we find the plaintiffs' claim that the town had a duty to warn Mr. Cimino of the wave activity to be without merit. It is clear from the record that the water conditions were readily observable to all at the beach, and were in fact not only...
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