The Right To Recover For Diving Injury

Diving into a pool or lake can be very dangerous.  There are many cases in which people, often teenagers, are seriously injured when they dive into a swimming pool or lake headfirst and strike their head on the bottom causing a very serious injury.  Often these injuries result in paralysis and traumatic brain injury, or spinal injuries.

Proving the negligence of the defendant is often more difficult than motor vehicle accidents, slip and fall and labor law accidents.  The New York Court of Appeals has held that diving headfirst into shallow water is an open and obvious risk and is not foreseeable by defendant manufacturers, retailers and landowners.  In order to prevail in diving cases, an injured person must prove that the defendant was negligent in some way which caused the accident to have occurred.  In what has become an often cited case in New York, Cynthia Fichera, a partner of Spiegel, Brown, Fichera & Coté, LLP, litigated on behalf of one of the plaintiffs in the matter of Kriz v. Schum before the Court of Appeals of the State of New York, 75 NY2d 25 (1989).  In that case, in which the court decided two cases at once, Mrs. Fichera argued on behalf of a young woman who dove off of a slide into a pool and struck her head on the bottom.  The plaintiff did not know the depth of the pool and her friends had just dove off the slide before her into the deep end without her seeing them dive.  The plaintiff dove towards the shallow end without realizing its depth.  The court ruled that her diving off the top of the slide was foreseeable and that the defendant’s failure to advise her of the depth of the pool could be construed as negligence which contributed to her accident.

The courts have consistently held that property owners do have a duty to warn possible users of a lake or pool of its depth.  Recently the New York Court of Appeals (in Tkeshelashvili v. State of New York, 18 NY3d 199), ruled that the State, as an owner of property, was under a duty to warn possible users of a spillway near a lake that water levels in the lake fluctuated, at various times, between the depth of three and ten feet.  However, in that case, the court dismissed the plaintiff’s claim because it also found that there was overwhelming evidence that the plaintiff was very familiar with the location in question and had specific knowledge that the water depth varied and could be extremely shallow.  Thus the court relied on the general rule that where the plaintiff’s own recklessness is the only proximate or legal cause of an accident, the case should be dismissed.

The law firm of Spiegel, Brown, Fichera & Coté, LLP, over the years, has obtained successful recoveries of millions of dollars on behalf of injured plaintiffs in diving cases.  These cases have involved swimming pools, lakes and other similar facilities.  Should you have any questions about any of these or other cases involving accidents, please do not hesitate to call us.

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2/9/12