King v. National Spa and Pool Institute, Inc.

• Decision Date: 14 September 1990
• Citation: 570 So.2d 612
• Parties: Prod.Liab.Rep. (CCH) P 12,720, 1 A.L.R.5th 1109 Barbara Briant KING, as Administratrix of the Estate of Kenneth A. Halpern, Deceased v. NATIONAL SPA AND POOL INSTITUTE, INC. 89-605.
• Court: Alabama Supreme Court

Page 612

570 So.2d 612

Prod.Liab.Rep. (CCH) P 12,720, 1 A.L.R.5th 1109

Barbara Briant KING, as Administratrix of the Estate of Kenneth A. Halpern, Deceased v. NATIONAL SPA AND POOL INSTITUTE, INC.

89-605.

Supreme Court of Alabama.

Sept. 14, 1990.

Rehearing Denied Oct. 19, 1990.

Jere L. Beasley and Kenneth J. Mendelsohn of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellant.

Geary A. Gaston and William W. Watts of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.

HOUSTON, Justice.

Barbara Briant King, as administratrix of the estate of Kenneth A. Halpern, deceased ("Ms. King's intestate"), appeals from a summary judgment in favor of National Spa and Pool Institute, Inc. ("the trade association"), made final pursuant to Rule 54(b), A.R.Civ.P. The only question presented to us is a question of first impression in this State: What duty, if any, does a manufacturer's trade association owe to a consumer to prevent injuries caused by the product of a manufacturer who is a member of that trade association?

In the fall of 1987, Ms. King's intestate purchased a house and a lot in Mobile, Alabama. There was an in-ground, vinyl-lined swimming pool that had been constructed in 1981 by Southern Leisure Pool and Supply Corporation ("Southern Leisure"), a defendant not involved in this appeal. The evidence before the trial court showed that the swimming pool met the trade association's "Suggested Minimum Standards for Residential Swimming Pools" ("standards") and was of the size, shape, and dimensions that the trade association prescribed for allowing the type of diving board that had been installed with the pool. In May, 1988, Ms. King's intestate dove into the pool from the diving board. He did not slip, trip, or otherwise go into the pool unintentionally. It can reasonably be inferred that Ms. King's intestate hit his head on the bottom or side of the pool and sustained a broken neck that caused permanent quadriplegia. Approximately eight and one-half months later, he died of pneumonia secondary to quadriplegia.

In opposition to the trade association's motion for summary judgment, Ms. King filed an affidavit of Dr. George E. Lawniazak, an expert in diving injuries and swimming pools. According to Dr. Lawniazak, even though the subject swimming pool met the trade association's minimum standards for allowing the type of diving board that had been installed for diving into the pool, the pool was defective and unreasonably dangerous for diving from the diving board. Also according to Dr. Lawniazak, the pool had inadequate dimensions, the water volume in the pool was inadequate for safe diving from the diving board, and the configuration of the pool was such that it was not safe for diving from the diving board.

Ms. King's theory of liability against the trade association is that the standards that allowed the placement of a diving board in this particular size pool created an unreasonable risk of harm.

Did the trade association owe Ms. King's intestate, the owner and a user of a pool manufactured and installed in accordance with the standards promulgated by the trade association, a duty? If not, Ms. King's action for negligence cannot lie, and the judgment must be affirmed. "If the defendant owed a duty, but did not owe it to the plaintiff, the action [for negligence] will not lie." 1 Shearman & Redfield, On the Law of Negligence § 8 at 13-14 (6th ed.1913). See, also, Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928).

In Pugh v. Butler Telephone Co., 512 So.2d 1317, 1319 (Ala.1987), this Court held:

"Fundamental to the maintenance of a negligence action is the existence of a legal duty of care owed by the defendant to the plaintiff. Plaintiffs place great emphasis upon the contractual undertaking of Fail in its contract with Butler. While a party's negligent performance of a contract may subject that party to liability in tort for physical harm to others, see Morgan v. South Central Bell Tel. Co., 466 So.2d 107, 114 (Ala.1985), the scope of that duty, i.e., the persons to whom that duty runs, must be ascertained."

(Emphasis supplied.)

A legal duty is "an obligation arising from a contract of the parties or the operation of the law." Black's Law Dictionary 804 (5th ed.1979).

A legal duty to exercise care, therefore, arises where the parties are bound by contract, Pugh v. Butler Telephone Co., supra, or where the obligations are "expressly or impliedly imposed by statute, municipal ordinance, or by administrative rules or regulations, or by judicial decisions." 57 Am.Jur.2d, Negligence § 36 at 382 (1988).

There are no allegations that a contract existed between the trade association and Ms. King's intestate or that Ms. King's intestate was a third-party beneficiary of a contractual relationship between Southern Leisure and the trade association or that the trade association violated any statutes, ordinances, or rules or regulations enacted or promulgated to protect Ms. King's intestate.

There is no duty imposed by judicial decision on trade associations to promulgate industry standards.

Therefore, the trade association had no statutorily or judicially imposed duty to formulate standards; however, it did so. It is well settled under Alabama law that one who undertakes to perform a duty he is not otherwise required to perform is thereafter charged with the duty of acting with due care. Rudolph v. First Southern Federal Savings & Loan Ass'n, 414 So.2d 64 (Ala.1982). This is in accord with Justice Cardozo's classic case, Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276, 23 A.L.R. 1425 (1922):

"[O]ne who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all."

The Restatement (Second) of Torts § 324A (1966), states:

"One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

"(a) his failure to exercise reasonable care increases the risk of such harm, or

"(b) he undertakes to perform a duty owed by the other to the third person, or

"(c) the harm is suffered because of reliance of the other or the third person upon the undertaking."

Ms. King's intestate did not know of the trade association's standards, so clearly he did not rely on them when he dove into his pool. However, if the manufacturer or installer of the pool relied on the standards promulgated by the trade association in constructing or installing the pool, the trade association could be liable under the principles of § 324A(b) and/or (c), which state the law of Alabama.

The "Foreword" to the standards read as follows:

"This document has been prepared by members of the Standards and Codes Committee of the National Swimming Pool Institute with the much appreciated contributions of the American Public Health Association, National Safety Council, American Red Cross and the National Sanitation Foundation. It is a minimum standard for design and construction practices for the swimming pool industry.

"Variations in equipment and materials are permissible so long as operation and performance equivalent to the minimum standard is achieved. Where local building codes are more comprehensive or specific relative to construction, design, or safety, the local regulations should be followed.

"The National Swimming Pool Institute will continue to study the needs of the consumer, and developments within the industry, and will up-date the standards at least every three years. Comments and recommendations are always welcome."

(Emphasis supplied.)

This was followed by the names of the members of the Standards and Codes Committee and the names and addresses of the companies (e.g., Gary Aquatech Pools, Inc.), agencies (e.g., National Safety Council), or institutions (e.g., Yale University) with which the committee members were affiliated. After certain phrases or words were defined in the standards, there were 15 pages of "minimum standards" relating to (1) structural design, (2) dimensional design, (3) materials of construction, (4) deck equipment (steps, ladders, stairs, diving boards, and platforms), (5) safety features, (6) electrical requirements, (7) water supply, (8) inlets and outlets, (9) recirculation systems (piping, fitting, filters, skimmers), (10) skimmers, (11) filters, (12) pumps and strainers, (13) valves, (14) chemical feeding equipment, and (15) waste water disposal. The section on dimensional design was the most detailed, and it divided pools into five types. Type one included any residential pool where the installation of diving equipment was prohibited. The other four types included residential pools that were suitable for the installation of diving equipment of one of four classifications. The last subsection of the dimensional design standard read as follows:

"Pool Labeling--A label, conspicuously placed, shall be permanently affixed to the pool or deck. Said label shall contain the following information (Note 1):

___

"This is a Type (Note 2) Pool as defined in the 19 (Note 3) NSPI 'SUGGESTED MINIMUM STANDARDS FOR RESIDENTIAL SWIMMING POOLS.' Diving equipment, if installed, must meet STANDARDS for this Type Pool and must be located and installed in accordance with the STANDARDS.

___

"The letters of the label shall be legible and not less than one-eighth inch ( 1/8"') in height.

"The label shall be placed so that it is not hazardous to bathers.

"Notes:

"1. The NSPI Pool Registry Program may be used in lieu of the above noted label.

"2. Indicates the type of pool classification, i.e. Pool Type I, Pool Type II, etc.

"3. Indicates the date of the STANDARD to which the swimming pool conforms, i.e. the swimming pool was constructed to 1974 NSPI ...