My Last Dive
Q: A wooden jetty extends into the ocean, perpendicular to the waterline. Many times, we jumped and dove in all directions. After a while, the lifeguard approached and told us to get off the jetty. “One more dive,” I cried. “Leave,” he insisted. “No,” I replied. Eventually, the lifeguard allowed me to make one last dive. I went out to the bulkhead at the ocean end and waited for an oncoming wave. With a shallow-water racing dive, I dove seaward toward the wave. Entering the water, I hit something hard.
A: In the operation of recreational areas, a municipality has no duty to supervise users against the dangers inherent in the sport insofar as they are obvious and necessary. Even when a lifeguard tolerates swimming in a location where the municipality has banned it, the swimmer generally continues to assume the obvious and necessary risks. Seemingly, the risk was normal to ocean diving and obvious. The lifeguard had tried hard enough to get you to stop the diving. The municipality was required to do no more. The lifeguard made no representation that diving was safe. While his decision to permit you one last dive was inconsistent with his previous message, this inconsistency did not revoke the prior admonition. No reasonable person in your position would have relied on the guard’s giving-in has a representation that the diving was safe. From another angle, the lifeguard’s caving-in did not give rise to a justifiable reliance. You were in no worse position once the lifeguard acquiesced in your dive than if the lifeguard had never been there. From what you have told me, his failure to keep insisting was not a breach of duty, proximately causing your injuries.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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