Belling v. Haugh's Pools, Ltd.

• Citation: 511 N.Y.S.2d 732,126 A.D.2d 958
• Parties: , 55 USLW 2468, Prod.Liab.Rep. (CCH) P 11,263 Daniel BELLING and Marilyn Belling, Respondents, v. HAUGH'S POOLS, LTD. and Recreational Distributors Warehouse, Inc., Appellants.
• Decision Date: 23 January 1987
• Court: New York Supreme Court — Appellate Division

Page 732

511 N.Y.S.2d 732

126 A.D.2d 958, 55 USLW 2468,

Prod.Liab.Rep. (CCH) P 11,263

Daniel BELLING and Marilyn Belling, Respondents, v. HAUGH'S POOLS, LTD. and Recreational Distributors Warehouse Inc., Appellants.

Supreme Court, Appellate Division,

Fourth Department.

Jan. 23, 1987.

Hodgson, Russ, Andrews, Woods & Goodyear by Benjamin Zuffranieri, Jr., Buffalo, for appellant, Haugh's Pools, Ltd.

Grosse, Rossetti, Chelus & Herdzik, P.C. by Robert Knoer, Buffalo, for appellant, Recreational Distributors Warehouse.

Paul William Beltz, P.C. by Russell Quinlan, Buffalo, for respondents.

Before DOERR, J.P., and BOOMER, GREEN, PINE and BALIO, JJ.

MEMORANDUM:

Plaintiff sustained serious injuries when he dove through an inner tube floating in the four-foot, above-ground swimming pool in a friend's yard. Plaintiff, who was 33 years old, 6 feet, 1 inch tall and 215 pounds at the time, was an experienced swimmer and familiar with above-ground pools including the pool in question, having been swimming in it for several hours on the day the accident occurred. Indeed, he had assisted the owner of the pool in its installation. He commenced this action on several theories of liability, principally products liability, claiming that defendants as the manufacturer and retailer failed to give adequate warnings of the dangers inherent in diving into a four-foot pool. Defendants moved for summary judgment arguing that plaintiff has offered no evidence that the pool was defectively designed or manufactured; that plaintiff was completely familiar with the pool; and that the proximate cause of the injury was plaintiff's own conduct in diving into water which was too shallow for him. The court denied the motion.

A manufacturer will be held liable under a theory of strict products liability where the product is defective and the defect may include a mistake in manufacturing, an improper design or the absence or inadequacy of warnings (Sukljian v. Charles Ross & Son Co., 69 N.Y.2d 89, 511 N.Y.S.2d 821, 503 N.E.2d 1358 [1986]; Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 478-479, 426 N.Y.S.2d 717, 403 N.E.2d 440). Plaintiff must establish, of course, that the failure to warn was a proximate cause of the injury, i.e., "a substantial cause of the events which produced the injury" (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666). Accordingly, there is no liability for failing to warn of obvious dangers, those that would be appreciated by the user to the same extent the warning would have provided (Prosser & Keeton on Torts [5th ed.], p. 686; see, e.g., Smith v. Stark, 67 N.Y.2d 693, 499 N.Y.S.2d 922, 490 N.E.2d 841 [holding that plaintiff's injury was proximately caused by his own conduct in diving into shallow water and not by defendant's failure to provide depth markers] ).

Other jurisdictions have addressed the proximate cause issue raised herein and have concluded that the manufacturer cannot be liable because "a warning would have merely informed him [plaintiff] of risks of which he was already aware" (McCormick v. Custom Pools, 376 N.W.2d 471, 476 (Minn.App.); see also, Hensley v. Muskin Corp., 65 Mich.App. 662, 238 N.W.2d 362; Benjamin v. Deffet Rentals, 66 Ohio St.2d 86, 419 N.E.2d 883; Colosimo v. May Dept. Store Co., 466 F.2d 1234 (3rd Cir.); see generally, Anno. 6 A.L.R. 4th 492).

Corbin v. Coleco Industries, 748 F.2d 411 (7th Cir.), cited by the dissenter, is factually distinguishable. In Corbin, the court noted that "even though people are generally aware of the danger of diving into shallow water, they believe that there is a safe way to do it, namely by executing a flat, shallow dive" and thus whether the danger of attempting a flat, shallow dive was obvious was a question of fact ( Corbin v. Coleco Industries, supra, p. 417-418). The court implicitly agreed that vertical dives, such as the one attempted by plaintiff herein, into four feet of water involved an open and obvious risk.

Although proximate cause is usually a question for the jury, where only one conclusion may be drawn from established facts, "the question of legal cause may be decided as a matter of law" (Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666). This is such a case.

All concur, except GREEN, J., who dissents and votes to affirm, in the following Memorandum:

I must dissent. I cannot conclude, as a matter of law, that defendants had no duty to warn, or that defendants' negligence was not a proximate cause of plaintiff's serious injuries. At the outset it is important to recall that "[t]he failure to warn is essentially a case of negligence and the drastic remedy of summary judgment is rarely granted since the very question of whether a defendant's conduct amounts to negligence is inherently a question for the trier of fact in all but the most egregious instances (see, Ugarriza v Schmieder, 46 NY2d 471[, 414 N.Y.S.2d 304, 386 N.E.2d 1324]; McFadden v Haritatos, 86 AD2d 761, 762-763 )" (Cooley v. Carter-Wallace, Inc., 102 A.D.2d 642, 648, 478 N.Y.S.2d 375).

Defendants maintain that they had no duty to warn plaintiff of the dangers in diving off a deck or ladder into the pool because the dangers are obvious. The obviousness of a danger or the discoverability of it upon inspection, however, does not militate against a duty to warn, but rather is one of many factors for the jury to take into account in assessing comparative fault (see, Micallef v. Miehle Co., 39 N.Y.2d 376, 387, 384 N.Y.S.2d 115, 348 N.E.2d 571; New York Pattern Jury Instructions, Vol I, 2:135; see also, Schumacher v. Richards Shear Co. Inc., 59 N.Y.2d 239, 249, 464 N.Y.S.2d 437, 451 N.E.2d 195; cf. Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802). "[T]he imposition of the duty to give a warning of some kind involves a balancing test which weighs the seriousness of potential harm to the consumer against the costs to the manufacturer. Since the cost of providing warnings is often minimal, the balance usually weighs in favor of an obligation to warn" (Cooley v. Carter-Wallace, Inc., supra, 102 A.D.2d at p. 644, 478 N.Y.S.2d 375).

This record reveals that defendants knew, or should have known, that similar dives into similar pools had resulted in over 100 quadriplegic injuries per year during the past ten years. Plaintiff's claim is that had defendants adequately warned him of this danger, he would not have taken the dive into the pool. Plaintiff established that it was foreseeable to defendants that people will dive from decks and ladders into the pool. Indeed, the owner's manual, under the heading "Safety Hints for Pool Owners", cautions that the pool "contains large quantities of...