Opinion
Decided November 21, 1996
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered March 28, 1996, which affirmed a judgment of the Supreme Court (Gerald S. Held, J.), entered in Kings County, upon a verdict awarding plaintiff damages in the principal amount of $151,793.
Plaintiff's four-year-old son drowned in a swimming pool owned by defendant City of New York. At trial, plaintiff established that at the time of the drowning there were 1,200 to 1,500 people in the pool and 7 or 8 lifeguards on duty, and that the City was therefore in violation of its own rule requiring at least one lifeguard for every 75 swimmers.
The Appellate Division concluded that such proof, by itself, was legally sufficient to establish both the City's breach of its duty to provide adequate supervision of the swimmers and a relationship of proximate cause between that breach and the drowning, since plaintiff need not demonstrate that the precise manner in which the accident happened, or the extent of the injuries, was foreseeable.
Paul A. Crotty, Corporation Counsel of New York City (Elizabeth S. Natrella of counsel), for appellant. Panken, Besterman, Winer, Becker Sherman, LLP, New York City ( Howard B. Sherman of counsel), for respondent.
Overton v City of New York, 225 A.D.2d 505, reversed.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.
Even though it is uncontroverted that on the day decedent drowned in a pool owned and operated by defendant there were fewer lifeguards than required by New York State Sanitary Code (10 N.Y.CRR) § 6-1.23 and New York City Health Code (24 RCNY) § 165.21 (f), plaintiff failed to establish that the violation of these provisions was a proximate cause of her infant son's fatal accident.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, etc.