James Buckley as the Attorney-in-fact for Kresandra Rose Buckley and James & Melodee
Buckley, Claimants, State of New York, Defendant.
Claimant's attorney: The Rothschild Law Firm, P.C., Martin J. Rothschild, Esq.
Defendant's attorney:Hon. Eric T. Schneiderman, Attorney General of the State of New York, G. Lawrence Dillon, Belinda A. Wagner, Assistant Attorneys General
James H. Ferreira, J.
In this claim for negligence, claimant, a student at the State University of New York at Potsdam, (hereinafter SUNY Potsdam), alleges that she suffered personal injuries on January 27, 2009 while participating in recreational swim at the Maxcy Pool, located on the campus of SUNY Potsdam, when she dove off the starting blocks and struck her head on the bottom of the pool. A trial on the issue of liability was conducted on January 24, 2011 through January 27, 2011 at the New York State Court of Claims in Utica, New York. In addition to her own testimony, claimant offered the testimony of six witnesses including William Beauchamp, Director of Intramurals and Recreation at SUNY Potsdam; Meghan McCrimmon, senior lifeguard; Michelle Davis, lifeguard; Joshua Cruz, friend and witness; Felicia Marlow, friend and witness; and Maria Bella, aquatics expert. Defendant offered the testimony of three individuals including Maureen Taylor, Business Manager for Student Government at SUNY Potsdam; William Fisher, Assistant Vice President for Facilities at SUNY Potsdam; and Calvin Smith, Director of Environmental Health and Safety at SUNY Potsdam. Numerous documentary and photographic exhibits were offered by the parties and received into evidence. The parties also submitted post-trial memoranda.
Text of the decision:
Claimant arrived at the Maxcy Pool, located on the campus of SUNY Potsdam, at approximately 8:00 P.M. on January 27, 2009 for the purpose of engaging in recreational swim. This was the first occasion that claimant had engaged in recreational swim at SUNY Potsdam after learning about the recreational swim program through flyers that the college had posted around campus. She arrived at the pool that evening with two friends - Joshua Cruz and Felicia Marlow. Claimant and Marlow went into the women's locker room to change into their swimsuits before entering the pool area, and Cruz went into the men's locker room. Claimant, Marlow and Cruz subsequently entered the pool area by exiting their respective locker rooms. Claimant was attired in her high school team swimsuit. Claimant acknowledges walking past and glancing at a sign as she exited the locker room that listed rules for the pool. She did not read the entire sign, but only that portion of the sign which states "Respect Lifeguard Staff Directives At All Times" (claimants' exhibit 52). 
The pool was divided by a movable bulkhead into two sections: a diving well and a 6-lane lap swim area.  The diving well was located at the deep end of the pool, and the lap swim area was located between the bulkhead and the shallow end of the pool. There were also 6 starting blocks permanently affixed to the deck at the pool's most shallow end, which measured 4 feet in depth. The pool became gradually deeper from the 4 foot depth in the shallow end to 10 feet in depth at the bulkhead. The diving well reached a depth of 13 feet. The starting blocks were not covered or blocked off, nor were there any cones atop the blocks.
After exiting the locker rooms, the three friends proceeded to lane #6 at the shallow end of the pool. Cruz entered the water, while claimant and Marlow walked to the lifeguard stand so that claimant could ask the lifeguards whether she could use the starting blocks to do her laps in the pool. There were two lifeguards on duty that night - Meghan McCrimmon, senior lifeguard, and Michelle Davis. Claimant made the request to use the starting blocks and informed lifeguard McCrimmon that she swam in high school. McCrimmon denied claimant's request to use the starting blocks because there were children in the pool, and McCrimmon did not want the children to think it was okay for them to use the blocks.
Claimant and Marlow returned to the shallow end of the pool, sat on the edge of the pool and slid into the water. Claimant proceeded to swim 16 laps when Marlow noticed that all of the children had left the pool area. Claimant swam to the lifeguard station and made a second request to use the starting blocks. Lifeguard McCrimmon responded to claimant's request by stating "sure, go for it" (Tr. 155, 390). 
Claimant returned to lane #6 and climbed onto the starting block (claimants' exhibits 46, 47 and 50). She got into a "track start" (Tr. 393), and dove off the block using a streamline entry into the water. After entering the water, claimant recalls that the "bottom of the pool seemed to rush up way too quickly... like a bright flash of light and radiating from [her] core, [a] feeling of like tingling, numbness spread through [her] body" (Tr. 395). She next recalls floating to the surface of the water, face down. McCrimmon then jumped down from the lifeguard chair and with the help of Davis and Cruz, pulled claimant out of the pool. No backboard was used in removing claimant from the water and neither lifeguard entered the pool. McCrimmon telephoned University Police from a phone in the pool area adjacent to the pool office. University police officers arrived, followed thereafter by campus rescue and professional rescue.
It is well settled that in order to establish a prima facie case of negligence, " a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff' " (Comack v VBK Realty Assoc., Ltd., 48 A.D.3d 611, 612 ; see also Akins v Glens Falls City School Dist., 53 N.Y.2d 325 ; Pulka v Edelman, 40 N.Y.2d 781 ; Keating v Town of Burke, 86 A.D.3d 660 ). The Court notes further that claimant bears "the burden of proving [her] case by a fair preponderance of the credible evidence" (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 N.Y.2d 191, 196 ).
Upon review of the relevant legal principles and their application to the facts presented, and after considering all the evidence, including the exhibits received into evidence and the testimony and demeanor of the witnesses, the Court finds that claimant presented ...