Butler v. Seitelman

¶1It is well settled that in a motion of this kind, "the court’s role is limited to issue finding, not issue resolution” (Kriz v Schum, 75 NY2d 25, 33). Viewing the evidence in the light most favorable to plaintiff, as we must, we find that pursuant to Navigation Law § 40 (1) (a),* defendants owed decedent a duty of care once they permitted him and his crew to use their rowboat. In connection therewith, we find that plaintiffs have sufficiently raised a triable issue of fact as to the availability of flotation devices and whether defendants may have breached such duty if they had, in fact, failed to make such devices available for use with their rowboat (see, Navigation Law § 40 [1] [a]; De Fossez v Lake George Mar. Indus., 281 App Div 1002; Renaud v J. D. Posillico, Inc., 93 Misc 2d 1093).

¶2With the issue of proximate cause being the next relevant inquiry if defendants are found negligent, we are reminded that a "determination of legal causation turns upon questions of foreseeability and 'what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, [thus leaving] these issues … for the fact finder to resolve’ ” (Kriz v Schum, supra, at 34, quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). In connection therewith, we believe the relevant inquiry is whether decedent’s decision, as a nonswimmer, to go out on Lake George without a life preserver was so unforeseeable and reckless, or the risk so obvious, as to break the causal chain between defendants’ potential negligence and decedent’s death (cf., Olsen v Town of Richfield, 81 NY2d 1024; Boltax v Joy Day Camp, 67 NY2d 617; Culkin v Parks & Recreation Dept., 168 AD2d 912, lv denied 77 NY2d 806). Unlike the majority’s bold conclu*13sion that the evidence indicates that the men "had been drinking”, we find no evidence of intoxication in decedent’s hospital records despite the admission of a member of decedent’s crew to the State Police that they had "some beer over the course of the day and [that] we each had one while in the boat”. Since we cannot conclude that "the record eliminates any legal cause other than [decedent’s] reckless conduct” (Howard v Poseidon Pools, 72 NY2d 972, 974), we would reverse the order of Supreme Court (see, Herrera v Piano, 125 AD2d 548, 549).

¶3White and Carpinello, JJ., concur with Casey, J.; Peters, J., dissents in a separate opinion in which Mercure, J. P., concurs.

¶4Ordered that the order is affirmed, with costs.