Howard v. Poseidon Pools, Inc., N-R
| Decision Date | 10 November 1987 |
| Docket Number | No. 1,N-R,1 |
| Citation | 134 A.D.2d 926,522 N.Y.S.2d 388 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Brent HOWARD and Pamela Howard, Respondents, v. POSEIDON POOLS, INC., et al., Defendants, and S & V Pools, Inc., Trading as Poseidon Pools, Inc., and Recreational Distributor Warehouse, Inc., George Tassone, National Spa and Pool Institute, Home-oam Leisures, Inc., Appellants. Appeal |
Chamberlain, D'Amanda, Oppenheimer & Greenfield by Thomas Collins, Rochester, for appellants S & V Pool, Inc., and George Tassone.
Dixon & DiMarie, P.C. by Joseph DiMarie, Buffalo, for appellant Recreational Distributor Warehouse, Inc.
Damon & Morey by Anthony Colucci, Buffalo, for appellant Nat. Spa & Pool Industries.
Cohen & Lombardo, P.C. by William Coplon, Buffalo, for appellant Home-N-Roam Leisures, Inc.
Dwyer & Dwyer, P.C. by Joseph Dwyer, Olean, for respondents.
Before CALLAHAN, J.P., and DENMAN, BOOMER, GREEN and BALIO, JJ.
Plaintiff, who was 28 years old, 6-feet, 3-inches tall and an experienced swimmer familiar with this above-ground pool, sustained serious injuries when he dove through an inner tube that had been placed some eight feet from the deck. He had been swimming in the pool for several hours before the accident, knew the water was only four feet deep, and testified at an examination before trial that he was aware of the dangers of injury that might result from diving into shallow water. This action was commenced on several theories of liability, claiming that the defendants failed to give adequate warning of the dangers of diving into a four-foot pool.
The court granted the motion by defendant National Spa and Pool Institute for summary judgment dismissing the complaint against it upon the ground that said defendant owed no duty to plaintiff to warn of any danger (see, Howard v. Poseidon Pools, 133 Misc.2d 50, 506 N.Y.S.2d 523). We affirm that determination. The court's denial of summary judgment in favor of the other defendants was in error and as to them, must be reversed. In all material respects, this case is factually indistinguishable from Belling v. Haugh's Pools, 126 A.D.2d 958, 511 N.Y.S.2d 732, lv. denied 70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 N.E.2d 550, reargument dismissed 70 N.Y.2d 748, --- N.Y.S.2d ----, 514 N.E.2d 393, and we conclude that the appellants' motion for summary judgment of dismissal should have been granted for the reasons set forth in Belling.
The court abused its discretion by granting plaintiffs leave to amend their complaint to assert a private cause of action under the Consumer Product Safety Act (15 U.S.C. § 2072[a] ) for a violation of reporting rules promulgated by the Consumer Product Safety Commission (see, 16 CFR §§ 1115.4 and 1115.10). Assuming, arguendo, that a private cause of action exists based upon a violation of the rules (see, Drake v. Honeywell, 797 F.2d 603 [8th Cir.1986], holding that such a cause of action does not exist), plaintiff Brent Howard was not injured "by reason of any knowing (including willful) violation of a consumer product safety rule or any other rule ... issued by the Commission" (15 U.S.C. § 2072[a] ). Any failure to warn or failure to report the lack of a warning was not a proximate cause of plaintiff's injuries (Belling v. Haugh's Pools, 126 A.D.2d 958, 511 N.Y.S.2d 732, supra ). The court's grant of leave to amend (see, Howard v. Poseidon Pools, 133 Misc.2d 43, 506 N.Y.S.2d 519) is reversed as the proposed amendment was patently without merit (Walter v. Bauer, 88 A.D.2d 787, 451 N.Y.S.2d 533).
Order reversed on the law without costs and appellants' motions granted.
GREEN, J., concurs on constraint of Belling v. Haugh's Pools, 126 A.D.2d 958, 511 N.Y.S.2d 752, lv. denied 70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 N.E.2d 550, rearg. dismissed 70 N.Y.2d 748, --- N.Y.S.2d ----, 514 N.E.2d 393.
We respectfully dissent as, in our view, Belling v. Haugh's Pools, 126 A.D.2d 958...
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