Howard v. Poseidon Pools, Inc.

• Decision Date: 29 August 1986
• Docket Number: N-R
• Citation: 133 Misc.2d 50,506 N.Y.S.2d 523
• Parties: Brent HOWARD and Pamela Howard, Plaintiffs, v. POSEIDON POOLS, INC., S & V Pools, Inc., Trading as Poseidon Pools, Inc., Gibraltar Industries, Inc., Recreational Distributor Warehouse, Inc., George Tassone, National Spa and Pool Institute and Home-oam Leisures, Inc., Defendants.
• Court: New York Supreme Court

Page 523

506 N.Y.S.2d 523

133 Misc.2d 50

Brent HOWARD and Pamela Howard, Plaintiffs, v. POSEIDON POOLS, INC., S & V Pools, Inc., Trading as Poseidon Pools, Inc., Gibraltar Industries, Inc., Recreational Distributor Warehouse, Inc., George Tassone, National Spa and Pool Institute and Home-N-Roam Leisures, Inc., Defendants.

Supreme Court, Allegany County.

Aug. 29, 1986.

Dwyer & Dwyer, P.C., Olean, for plaintiffs.

Saperston, Day, Lustig, Gallick, Kirschner & Gaglione, P.C., Buffalo, for defendants, Poseidon Pools, Inc. and Gibraltar Corp. of America.

Dixon & DeMarie, P.C., Buffalo, for defendant.

Shane & Franz, Olean, for defendants, Tassone and S & V Pools, Inc.

Damon & Morey, Buffalo, for defendant, National Spa & Pool Institute.

Cohen, Lombardo, Blewett, Fisher, Spandau & Nosek, Buffalo, for defendant, Home-N-Roam Leisures, Inc.

DECISION

EDWARD M. HOREY, Justice.

The motion is for summary judgment. It is brought by the defendant National Spa Pool Institute hereinafter referred to as NSPI. That institute acts as a manufacturers trade association for swimming pools. It is alleged that among its functions is certifying swimming pools and equipment together with reviewing such equipment and recommending changes in design. In contrast to such organizations as Consumers Reports, NSPI is an organization representing the interests of manufacturers.

The action which the plaintiffs have brought against NSPI and several other defendants arises out of an unfortunate dive by the plaintiff, Brent Howard, into an above-the-ground swimming pool containing a uniform depth of four feet of water. The dive resulted in rendering such plaintiff a quadraplegic.

The action asserted by the plaintiff against the defendant, NSPI, is broadly stated in a single paragraph occupying three typed pages of the amended complaint. The issuance of statements allegedly misrepresenting the safety of above-ground swimming pools appears to be at the heart of the plaintiffs' complaints against this defendant. All other allegations against this defendant charge it to have acted negligently and carelessly in a host of respects.

Read in its fullest context the plaintiff has pleaded, certainly not nicely and with precision, sufficient allegations to support four theories of actions against NSPI. In the judgment of this court they are negligent misrepresentation, strict product liability, breach of warranty and negligence. The court treats these theories in the stated order.

I. NEGLIGENT MISREPRESENTATION.

If the theory of the cause of action pleaded be considered as negligent misrepresentation reliance upon the information is required.

See Hanberry v. Hearst Corp., 276 Cal.App.2d 680, 81 Cal.Rptr. 519, where a purchaser of shoes containing the Good Housekeeping Seal sustained personal injury when the shoes would not hold on a vinyl floor and the plaintiff was injured.

See Hempstead v. General Fire Extinguisher Corp., 269 F.Supp. 109, where a certifier of a fire extinguisher which exploded causing personal injury to the user was sued.

See Glanzer v. Shepard, 233 N.Y. 236, 136 N.E. 275, where a public weigher erroneously reported the weight of a quantity of beans which caused the plaintiff buyer, relying thereon, to overpay the seller.

See White v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315, wherein the court held that the duty of an accountant to properly report financial information extended not solely to the persons for whom the contract was made but extended to a limited class whose reliance should have been anticipated.

See Chemical Bank v. National Union Fire Insurance Co., 74 A.D.2d 786, 425 N.Y.S.2d 818, wherein a real estate appraiser made an inordinately high appraisal to the damage of a bank which financed the sale of the appraised realty. While not stated the plain inference is that the financing party relied upon the appraisal.

See Roman v. City of New York, 110 Misc.2d 799, 442 N.Y.S.2d 945, wherein it was alleged that the plaintiff relied on a booklet issued by a planned parenthood organization in refraining from using contraceptives.

See also Cornell Law Quarterly Article entitled "Liability of Certifiers of Products for Personal Injuries to the User or Consumer." Vol. 56, p. 132 ff1. (Nov.1970) in particular note 14, p. 135.

See also Restatement of Torts (second) Sec. 311 where reliance upon the information is recited as a necessary ingredient in negligent misrepresentation involving risk of physical harm.

Viewed as allegations of negligent misrepresentation the cause of action against the National Spa and Pool Institute must fail because it fails to allege that the plaintiff relied upon the information supplied.

In the opinion of the court an additional grounds of rejecting the plaintiffs' cause of action exists if it is viewed as pleading negligent misrepresentation. Such deficiency is the failure of the plaintiffs to allege that they are encompassed within such a group or entity that the defendant, NSPI, can be charged with having reasonably contemplated that they would rely upon the representation which was made.

The allegation in the complaint alleges that the defendant, NSPI, negligently and carelessly, misled and misrepresented the "general public" that the hazards of diving into above ground swimming pools did not exist, ..., Par. 41 of amended complaint.

This court's review of law discloses that while negligently imparting words upon which others might rely and act upon may be actionable, the party seeking redress must be the person or at least one of the persons in a class who could reasonably be anticipated to rely and take action upon the erroneous statement. See Ultramares v. Touche, 255 N.Y. 170, 174 N.E. 441; Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275; White v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315.

To date the broadest extension of this requirement which this court has discovered is the case of White v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315. There it was stated that the party seeking redress should be one of a "fixed, definable and contemplated group." See 43 N.Y.2d 356 at 362, 401 N.Y.S.2d 474, 372 N.E.2d 315. The court proceeded to determine in White v. Guarente, (supra.) that plaintiff there, as a limited partner was seeking redress "not as a member of the public, but as one of a settled and particularized class among the members of which the report would be circulated ..." 43 N.Y.2d 356 at 362, 401 N.Y.S.2d 474, 372 N.E.2d 315. Italics added. It was on this basis that action of the plaintiff was permitted.

Similarly in Chemical Bank v. National Union Fire Ins. Co., 74 A.D.2d 786, 425 N.Y.S.2d 818, the cause of action of the plaintiff for negligent misrepresentation was permitted only because the plaintiff as the financing party was held to be one who was or should have been in the contemplation of the appraiser, a party who would rely upon the appraisal.

This court has found no case, and counsel has not cited any case wherein a plaintiff merely as a member of the general public may assert a cause of action for negligent misrepresentation.

As a faceless member of an unresolved class of persons not marked by any definable limits the opinion of this court is that he has no cause of action for negligent misrepresentation. This court does not believe that the principle determined in Ultramares v. Touche, 255 N.Y. 170, 174 N.E. 441, has been extended to this extent.

II. STRICT PRODUCTS LIABILITY.

If the cause of action which the plaintiffs seek to assert against the defendant NSPI is viewed as one of strict products liability, it is also objectionable. This is for the reason that such a cause of action "deals with the liability of manufacturers, wholesalers, distributors, retailers, makers of component parts, and processors of materials for product related injury or damage." See Pattern Jury Instructions, Vol. 1, supplement at p. 341-345 of PJI 2:120 at p. 157. The defendant, National Spa and Pool Institute, as a trade association certifier of swimming pool equipment is not embraced within the recited group against whom an action for strict product liability may be brought.

Further the basis of strict product liability is "risk spreading." Under the theory of strict product liability, liability is imposed on the manufacturer because the manufacturer is in the best position to insure against the loss and pass the cost to the public by charging higher prices.

See Cornell Law Review "Certifiers Liability," Vol. 56, p. 132 at 143.

The theory was succinctly summarized in Escola v. Coca...