In a major victory for a private community in Suffolk County, Justice Peter H. Mayer granted summary judgment dismissing a claim by a plaintiff, who was rendered quadriplegic after diving off of a bulkhead into the Great South Bay. Plaintiff, who was intoxicated at the time of his dive, claimed that he would not have dove into the dark shallow water had there been warning signs advising him of the shallowness of the water or that no diving was allowed. However, pursuant to the New York State Health Code, the defendant was exempt from the bathing beach requirements, including warning signs. Ondine Slone, along with Gabriella Campiglia and Kelly Zic, pursued the Department of Health for confirmation that the defendant was exempt from the statutory requirements and obtained critical evidence in support of the defendant’s motion. Additionally, with the support of an expert witness, the defense team was able to establish plaintiff’s level of intoxication. As a result, the Court found that the plaintiff’s conduct was the sole proximate cause of the accident.
No common law duty existed because plaintiff’s voluntary consumption of alcohol and reckless act of diving into water without first determining its depth constituted an unforeseeable superseding event absolving the defendant of liability. A substantial settlement offer was made with the motion pending, which was rejected by plaintiff’s counsel.
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