Jacques v. Village of Lake Placid

• Decision Date: 01 June 1972
• Citation: 332 N.Y.S.2d 743,39 A.D.2d 163
• Parties: Donald JACQUES et al., Respondents, v. VILLAGE OF LAKE PLACID, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 743

332 N.Y.S.2d 743

39 A.D.2d 163

Donald JACQUES et al., Respondents, v. VILLAGE OF LAKE PLACID, Appellant.

Supreme Court, Appellate Division, Third Department.

June 1, 1972.

McCormick, LaPan & Brooks, Saranac Lake (John T. De Graff, James M. Brooks and Margrethe R. Powers, of counsel), for respondents.

Herron, Lawler & Fischer, Malone (Henry A. Fischer, Jr., Malone, of counsel), for appellant.

Before HERLIHY, P.J., and COOKE, SWEENEY, SIMONS and KANE, JJ.

KANE, Justice.

This is an appeal from a judgment of the Supreme Court, entered December 3, 1970 in Essex County, upon a verdict rendered at a Trial Term in favor of plaintiffs.

The Village of Lake Placid owns and maintains a public recreation area on the westerly shore of Mirror Lake consisting of a wooded park, a sand beach and a swimming dock. The park area was lighted at night and open to the public continuously. The beach was open generally during daylight hours from June to September and the Village employed lifeguards to supervise the use of the beach area. When the beach area was closed for swimming, the public was allowed to walk through the park and beach area, and fish from the dock. There are four entrance-ways to the beach but only one sign was used to close the beach and that was usually placed on the right side of the beach house facing the water. There were no Village ordinances regulating the hours of beach operation. The Village police patrolled the park on a routine basis and were responsible for ejecting bathers when the beach was closed.

On July 28, 1968 at approximately 2:00 A.M. respondent Donald Jacques sustained grievous injuries when he dived off the dock in shallow water and struck his head on the bottom of the lake. Jacques suffered a fracture of the fifth cervical vertebra, causing a compression of the spinal cord and rendering him a quadriplegic for the remainder of his life.

Appellant argues that the evidence did not show any negligence on the part of the Village and the plaintiff was negligent as a matter of law. On the issue of the negligence of the Village, we cannot say that the verdict was contrary to the weight of the evidence. The duty of a municipality which operates a recreational area is more than that of a private landholder and that duty goes beyond the mere maintenance of the physical condition of the facility in a reasonably safe condition (Caldwell v. Village of Island Park, 304 N.Y. 268, 273, 107 N.E.2d 441, 443). The park area, beach and swimming dock admittedly had no barriers, real or suggested to dissuade visitors from venturing onto the dock when the beach was closed for swimming. The area was shown to be somewhat of a tourist attraction, used frequently by them as well as local residents. The summer population of the Village generally quadrupled, recreation being a significant economic factor for the municipality and its business. Extensive use of this facility was readily foreseeable and the duty of supervision and maintenance had to be commensurate with the consequences that might be reasonably anticipated. In view of the park area being open continuously, it was incumbent upon the Village to demarcate the closed area from that park area. The presence of a single sign near the beach house where towels were rented was not a sufficient deterrent. There was demonstrated an abundance of knowledge that swimming took place after closing and it could be easily concluded that the patrol by the police was a casual effort, ineffective also as a deterrent.

The construction of the dock with a diving edge extending into an area of three to five feet of water depth and the lack of warning signs showing water depth also presented issues of fact as to negligent construction and maintenance.

It is inferable from the evidence that the volunteer firemen of the Village, of whom respondent was a member, were granted more leniency regarding use of the swimming area when closed. In fact, although disputed, testimony indicated that on the very night in question the police patrolling requested the firemen, including respondent, to keep the noise down.

The question of Jacques' legal status was sharply in dispute, but, considering all of the proof, it was properly submitted to the jury as an issue of fact. Jacques had a right to be at the park at the time of his injury, and whether going swimming relegated him to the status of a trespasser or licensee was an issue of fact. The open availability of the park, the sporadic enforcement procedures (including inferences that firemen were given special consideration of use), and the lack of visible barriers marking the forbidden area, all raised questions for jury determination. (Collentine v. City of New York, 279 N.Y. 119, 17 N.E.2d 792; Christian v. City of Binghamton, 28 A.D.2d 611, 279 N.Y.S.2d 1001.)

On the issue of contributory negligence, again the record demonstrates an issue of fact. Jacques had been to the park swimming on one other occasion some 12 years prior to the accident, at a time when the dock construction was considerably different. On the night in question, he was with other firemen whose greater knowledge of the area and permission to use it he depended upon, and, although there was testimony regarding warnings to him, it was disputed. He successfully accomplished one dive from the lifeguard chair, and the second and last dive was from the diving edge, which from its very presence he could assume sufficient depth of water. (Wartels v. County Asphalt, 29 N.Y.2d 372, 328 N.Y.S.2d 410, 278 N.E.2d 627; Rossman v. LaGrega, 28 N.Y.2d 300, 321 N.Y.S.2d 588, 270 N.E.2d 313.)

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.

HERLIHY, P.J., and COOKE and SWEENEY, JJ., concur.

SIMONS, J., dissents and votes to reverse in an opinion.

SIMONS, Justice (dissenting).

No matter how the case is glossed, the tragic but undeniable facts are that this adult plaintiff dived from an unlighted and unsupervised dock, which he knew was closed to swimmers, into unfamiliar waters obscured by mist and darkness.

His recovery against the Village cannot be affirmed by simply assuming negligence on the part of the Village and citing Caldwell v. Village of Island Park (304 N.Y. 268, 107 N.E.2d 441). In the Caldwell case, an infant plaintiff was injured when she was on a beach at a time when it was open to the public. Furthermore, the plaintiff's lack of concern for his own safety cannot be explained away on a burden of proof basis by comparing him to amnesiacs (Wartels v. County Asphalt, Supra) or wrongful death victims acting under emergency circumstances (Rossman v. LaGrega, Supra).

The fact is that plaintiff was a trespasser. On the night of the accident, he was swimming in an area that was closed and he knew it was closed.

There is no question that the park area was lighted and was open to the public generally for walking or sitting at night. If plaintiff had been injured there he would have been an invitee entitled to defendant's reasonable care. (Caldwell v. Village of Island Park, Supra.) But it must come as a shock to the Village fathers to have the court...