Glittenburg v. Wilcenski

• Decision Date: 24 February 1989
• Docket Number: Docket No. 98313
• Citation: 174 Mich.App. 321,435 N.W.2d 480
• Parties: David GLITTENBURG and Connie Glittenburg, Plaintiffs-Appellants/Cross-Appellees, v. Robert WILCENSKI and Dianne Wilcenski, Defendants-Appellees/Cross-Appellants, and Doughboy Recreational Industries, a foreign corporation, Defendant-Appellee. 174 Mich.App. 321, 435 N.W.2d 480, 57 U.S.L.W. 2552, Prod.Liab.Rep.(CCH)P. 12,064
• Court: Court of Appeal of Michigan — District of US

Page 480

435 N.W.2d 480

David GLITTENBURG and Connie Glittenburg Plaintiffs-Appellants/Cross-Appellees, v. Robert WILCENSKI and Dianne Wilcenski Defendants-Appellees/Cross-Appellants and Doughboy Recreational Industries, a foreign corporation Defendant-Appellee.

Docket No. 98313.

174 Mich.App. 321, 435 N.W.2d 480, 57 U.S.L.W. 2552,

Prod.Liab.Rep.(CCH)P. 12,064

Court of Appeals of Michigan.

Submitted Feb. 10, 1988.

Decided Jan. 17, 1989.

Released for Publication Feb. 24, 1989.

[174 MICHAPP 322] Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Richard E. Shaw, Detroit, for plaintiffs.

Best, Schmucker, Heyns & Klaeren, P.C. by Chad C. Schmucker, Jackson, for defendants Wilcenski.

Kerr, Russell & Weber by Robert R. Florka and Lisa A. Lane, Detroit, for Doughboy Recreational Industries.

[174 MICHAPP 323] Before MAHER, P.J., and SHEPHERD and TERTZAG, ^* JJ.

SHEPHERD, Judge.

Plaintiffs appeal the circuit court's order granting defendant Doughboy Recreational Industries' summary judgment motion pursuant to GCR 1963, 117.2(1) on the basis of no duty to warn. Plaintiffs unsuccessfully moved for rehearing. Plaintiffs also appeal the circuit court's January 22, 1987, order granting defendants Wilcenski's summary disposition motion pursuant to MCR 2.116(C)(8) and (10) on the basis that the recreational land use statute, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, barred plaintiffs' negligence claim. The Wilcenskis cross-appealed the circuit court's order denying their summary judgment motion pursuant to GCR 1963, 117.2(1) and (3). The Wilcenskis claimed that they had no duty to warn of an open and obvious danger.

On September 4, 1978, plaintiff David Glittenburg was seriously and permanently injured when he dove off the edge at the shallow end of a residential swimming pool into approximately three and one-half feet of water. The pool was located in the backyard of a home owned by plaintiffs' friends, defendants Robert and Dianne Wilcenski. The Wilcenskis had purchased their home, including the swimming pool, from Fred Bancroft, on December 27, 1977. Bancroft had purchased the pool in 1973 from Hilson Pool Company, which had installed it in his backyard. Defendant Doughboy Recreational Industries was the manufacturer of the pool. On January 15, 1981, plaintiffs sued defendants Bancroft, the Wilcenskis, Hilson and Doughboy, alleging negligence, [174 MICHAPP 324] specifically failure to warn, and breach of various warranties.

Bancroft was dismissed pursuant to his motion for summary judgment on June 2, 1981. Plaintiffs appealed and this Court affirmed on the grounds that Bancroft did not have possession or control of the swimming pool at the time of the accident. Glittenburg v. Bancroft, unpublished opinion per curiam of the Court of Appeals, decided July 27, 1982 (Docket No. 58254).

At his deposition, plaintiff testified that he had been in the pool at least twice before. He knew which end was the shallow end and that it was approximately three feet deep at that end. He acknowledged that he did not need depth markers to remind him of the water's depth. Plaintiff testified that he had taken swimming and diving instructions in high school, including a life saving class. He testified that he knew serious injury could result from diving into shallow water.

The Wilcenskis' motion for summary judgment on the basis that they had no duty to warn was denied. They appeal. Doughboy's motion for summary judgment under GCR 1963, 117.2(1), failure to state a claim, was granted, the court holding that Doughboy had no duty to warn plaintiff of the open and obvious danger. The Wilcenskis' motion for summary judgment on the basis of the recreational land use act was granted. Plaintiffs appeal.

In this case we are confronted with the rather narrow question of whether, in the context of this case, defendant Doughboy or defendant homeowners had a duty to warn plaintiff. Although defendant Doughboy argued that the danger in this case was open and obvious and that therefore there was no duty to warn plaintiff, we disagree with this test. This Court in Horen v. Coleco Industries, Inc., [174 MICHAPP 325] 169 Mich.App. 725, 729, 426 N.W.2d 794 (1988), has recently held:

"On appeal, plaintiffs argue that the trial court applied the wrong test. We agree. Defendants argued, and the trial court accepted, the test enunciated in Fisher v Johnson Milk Co, Inc, 383 Mich 158; 174 NW2d 752 (1970)--namely, that there is no duty to warn of a patent and obvious danger inherent in a simple tool or product. Id. at 160 . See also Coger v Mackinaw Products Co, 48 Mich App 113, 122; 210 NW2d 124 (1973). The moving-party defendants utilized this test to assert that, since the above-ground swimming pool was a simple product in which openly and obviously inhered a risk of serious injury from diving, summary disposition was proper because there was no duty to warn.

"However, the 'open and obvious risk' test does not adequately state the law in Michigan, since this test was subsequently modified by that set out in Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982). Owens opined that a manufacturer is not automatically excused from responsibility merely by showing that the risks inhering in a simple tool or product are open and obvious. Id. at 424-425 . Although such determination may be utilized as one factor among others to conclude that the manufacturer has no duty to warn because the product is not unreasonably dangerous, the new test is whether the risks are unreasonable in light of the foreseeable injuries. Id. at 425 . See also Francisco v Manson, Inc, 145 Mich App 255, 262; 377 NW2d 313 (1985), lv den 424 Mich 872 (1986); SJI2d 25.31 and Comment."

We have conducted a thorough review of swimming pool injury cases in other jurisdictions. Generally the courts have been unwilling to impose a duty to warn on the manufacturer or have concluded that, because of a plaintiff's swimming experience and knowledge of diving procedures, [174 MICHAPP 326] the absence of a warning was not a proximate cause of plaintiff's injury. See Colosimo v. May Dep't Store Co., 466 F.2d 1234 (CA 3, 1972); Belling v. Haugh's Pools, Ltd., 126 A.D.2d 958, 511 N.Y.S.2d 732 (1987); Smith v. Stark, 67 N.Y.2d 693, 499 N.Y.S.2d 922, 490 N.E.2d 841 (1986); accord, Boltax v. Joy Day Camp, 67 N.Y.2d 617, 499 N.Y.S.2d 660, 490 N.E.2d 527 (1986); see also Vallillo v. Muskin Corp., 212 N.J.Super. 155, 514 A.2d 528 (1986); McCormick v. Custom Pools, Inc., 376 N.W.2d 471 (Minn.App.1985); Benjamin v. Deffet Rentals, Inc., 66 Ohio St.2d 86, 419 N.E.2d 883 (1981). But see Jonathan v. Kvaal, 403 N.W.2d 256 (Minn.App.1987). To the opposite effect is Corbin v. Coleco Industries, Inc., 748 F.2d 411 (CA7, 1984). In that case the seventh circuit held that there was sufficient evidence on the record to conclude that the danger of serious spinal injury from diving into shallow water was not open and obvious and, therefore, the evidence was sufficient to avoid summary judgment. However, even that case placed importance on the evidence suggesting that plaintiff was not an experienced and knowledgeable swimmer.

We do not believe the risk is open and obvious. We believe the risk of serious injury, in this case paraplegia, is not obvious in the absence of some form of warning. A simple act of pleasure on a hot summer's day, a dive into a pool, can result in a lifetime of heartache, frustration, pain and loss. Nothing in the appearance of the pool itself gives a warning of the very serious consequences to which a mundane dive can lead. Nor are we convinced that the danger of serious injury from a dive is a risk of which the public is generally aware.

It is represented to us that warning labels and instructions did in fact accompany the pool but were...