Tracy L. Campbell v. Muswim Pools

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.