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State agrees to $3.25 million settlement for SUNY Potsdam student’s injuries

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POTSDAM - The state has agreed to pay a $3.25 million settlement for a former SUNY Potsdam student who suffered a spinal injury while diving into a swimming pool at the college’s Maxcy Hall in 2009, according to her attorney.

Kresandra R. Buckley, Brasher Falls, who was 18 at the time of the accident, will receive a lump-sum payment, rather than annuity payments over her lifetime, her attorney, Martin J. Rothschild, Syracuse, said Wednesday.

Miss Buckley, who graduated from SUNY Potsdam in May and is continuing her education at SUNY Brockport, was injured Jan. 27, 2009, after diving from starting blocks into four feet of water.

Mr. Rothschild said she hit her head on the pool’s bottom, immediately leaving her with a tingling sensation and numbness throughout her body. She later required a procedure to remove fluid from her spinal column and suffers from a “significant” loss of function in her right leg and a loss of function in her right hand, Mr. Rothschild said.

The accident occurred as Miss Buckley, who had been a member of the swim team while attending St. Lawrence Central School, was swimming recreationally at the pool.

Despite a sign posted in the pool area forbidding diving from the starting blocks, Miss Buckley was given permission to do so by a lifeguard on duty. The pool’s safety policy, and state Sanitary Code, state that the blocks are not to be used except during competitive swim meets or supervised swim practices.

Miss Buckley contended in her action, which was heard in the state Court of Claims in Utica, that the college was negligent in its failing to train lifeguards about the pool’s rules and in permitting them to use their own discretion when allowing recreational swimmers to use the blocks. She also maintained that the blocks should have been covered or had barriers around them if they were not to be used.

According to court documents, when Maxcy Hall was built in the early 1970s, there was no code that required the blocks to be positioned adjacent to the deep end of the pool.

Sanitary Code began requiring in 1992 that “a certain minimum depth” was needed for the installation of blocks, but the amendment did not require the college to remove or relocate the blocks, leading them to remain at the pool’s shallow end.

Miss Buckley initially asked to dive from the blocks, but was told by a lifeguard that she could not because there were small children swimming in the shallow end. She then swam several laps, accompanied by two friends. When the children left, she again asked to use the blocks and was told by the lifeguard, “Sure, go for it,” according to court documents.

On her first dive, she said, “the bottom of the pool seemed to rush up way too quickly” and she hit her head on it. She floated to the surface face down and was pulled from the pool by the lifeguard and her two friends.

The state, through attorneys with the attorney general’s office, argued, among other things, that Miss Buckley took an “assumed risk” by diving, contending there are inherent risks for people who voluntarily participate in sporting events and, by doing so, gave her consent that she knew there was a risk involved.

Following a trial in January 2011, Court of Claims Judge James H. Ferreira ruled that the college’s failure to advise its lifeguards that the blocks should not be used by recreational swimmers, as well as the lifeguard’s approval of Miss Buckley’s use, “unreasonably increased” her risk. By applying comparative negligence principles under the doctrine of “primary assumption of risk,” the judge ruled that Miss Buckley was 60 percent liable for her injuries and the college was 40 percent liable.

The judge further ordered that a trial be held to determine the amount of damages, but before trial, the parties entered into settlement talks that resulted in Tuesday’s agreement, Mr. Rothschild said. A spokeswoman for the state attorney general’s office could not immediately confirm the agreement Wednesday.

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