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Campbell v. Muswim Pools, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 3, 1989
147 A.D.2d 977 (N.Y. App. Div. 1989)

Opinion

February 3, 1989

Appeal from the Supreme Court, Monroe County, Patlow, J.

Present — Dillon, P.J., Boomer, Green, Pine and Davis, JJ.


Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiff's decedent was fatally injured when he dove into the four-foot-deep above-ground swimming pool owned by defendants Capaldo. Decedent was an experienced swimmer who was familiar with the Capaldo pool when he was injured during a game of "sharks and minnows". Special Term denied defendant Esther Williams Pools' motion for summary judgment with respect to plaintiff's cause of action alleging a design defect. Decedent dove either impulsively or deliberately into the Capaldo swimming pool. In either case, his conduct was the sole proximate cause of his injuries (see, Smith v Stark, 67 N.Y.2d 693). Under the circumstances, defendants were entitled to summary judgment dismissing the complaint (see, Howard v Poseidon Pools, 72 N.Y.2d 972; Smith v Stark, supra). Accordingly, we modify the order of Special Term by granting summary judgment to defendant Esther Williams Pools and dismissing the action against it.


Summaries of

Campbell v. Muswim Pools, Inc.

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 3, 1989
147 A.D.2d 977 (N.Y. App. Div. 1989)
Case details for

Campbell v. Muswim Pools, Inc.

Case Details

Full title:TRACY L. CAMPBELL, as Administratrix of the Estate of CHARLES L. CAMPBELL…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Feb 3, 1989

Citations

147 A.D.2d 977 (N.Y. App. Div. 1989)

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