Kriz v. Schum

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: ALEXANDER; WACHTLER
• Citation: Kriz v. Schum, 75 N.Y.2d 25, 550 N.Y.S.2d 584, 549 N.E.2d 1155 (N.Y. 1989)
• Decision Date: 30 November 1989
• Parties: , 549 N.E.2d 1155, 58 USLW 2392, Prod.Liab.Rep. (CCH) P 12,380 Julia KRIZ, Appellant, v. David SCHUM et al., Respondents, et al., Defendant. Sheri DENKENSOHN, an Infant, by Charles Denkensohn, Her Father and Natural Guardian, et al., Respondents, v. Richard DAVENPORT et al., Defendants and Third-Party Plaintiffs-Respondents, and Archie Lawrence & Son, Appellant. Seaboard Industries, Third-Party Defendant-Appellant.

Page 584

550 N.Y.S.2d 584

75 N.Y.2d 25, 549 N.E.2d 1155, 58 USLW 2392,

Prod.Liab.Rep. (CCH) P 12,380

Julia KRIZ, Appellant, v. David SCHUM et al., Respondents, et al., Defendant.

Sheri DENKENSOHN, an Infant, by Charles Denkensohn, Her Father and Natural Guardian, et al., Respondents, v. Richard DAVENPORT et al., Defendants and Third-Party

Plaintiffs-Respondents,

and

Archie Lawrence & Son, Appellant.

Seaboard Industries, Third-Party Defendant-Appellant.

Court of Appeals of New York.

Nov. 30, 1989.

[75 N.Y.2d 27] [549 N.E.2d 1156] Michael R. Law and Kenneth W. Gordon, Rochester, for appellant in the first above-entitled action.

[75 N.Y.2d 28] Louis B. Cristo, Rochester, for David Schum and others, respondents in the first above-entitled action.

Robert J. Burke and Thomas J. Rzepka, Rochester, for Clover Home Leisure Centers, Inc., respondent in the first above-entitled action.

Paul J. Campito, Schenectady, for appellant in the second above-entitled action.

[75 N.Y.2d 29] Cynthia K. Fichera, Poughkeepsie, for Sheri Denkensohn, respondent in the second above-entitled action.

Dianne Bresee Mayberger, Albany, for third-party defendant-appellant in the second above-entitled action.

OPINION OF THE COURT

ALEXANDER, Judge.

In each of these cases the plaintiff ¹ was seriously injured as a result of diving from or sliding down a pool slide into the shallow end of a swimming pool. The common issue presented by their appeals is whether the records on these motions for summary judgment conclusively establish that the reckless conduct of the plaintiffs was the sole legal cause of their injuries (see, Howard v. Poseidon Pools, 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280; Boltax v. Joy Day Camp, 67 N.Y.2d 617, 499 N.Y.S.2d 660, 490 N.E.2d 527). We conclude in Kriz v. Schum that Julia Kriz's conduct in sliding down a pool slide into the shallow end of a pool was not, as a matter of law, an unforeseeable use of the slide such as to constitute the sole legal cause of her injuries. Similarly, in Denkensohn v. Davenport, neither Sheri Denkensohn's conduct in diving from the top of a pool slide into water of an unknown depth nor the conduct of her companion in advising her that it was safe to do so and in failing to adequately illuminate the pool area, was, as a matter of law, an unforeseeable superseding cause of her injuries. Accordingly, the records on these summary judgment motions demonstrate that issues of fact requiring a trial exist in each case.

I Kriz v. Schum

On July 25, 1985, plaintiff Julia Kriz was seriously injured after sliding headfirst down a pool slide into a shallow, above-ground pool owned by defendants David and Linda Schum. David and Linda Schum were away on the day of the accident but their daughter Karen, who is also joined as a defendant, had invited plaintiff, Paul Bauer and Eddie Clouston to use the pool, which plaintiff had never visited before. A few minutes after entering the pool, plaintiff used the pool slide, first sliding down in a seated position and next in a headfirst "belly slide". Neither slide was eventful. The water in the pool was four to five feet deep; plaintiff was approximately five feet three inches tall at the time of the accident and the water level reached just above her shoulders. On her next slide, plaintiff executed another headfirst belly slide but this time, negotiated her body through an inner tube held flat on the water by Bauer. She hit her head on the bottom of the pool and tragically was rendered a quadriplegic.

Plaintiff commenced this negligence action against the Schums, Clover Pool Supply Company (Clover), the retailer from whom the Schums had purchased the slide and Aqua Slide "N" Dive (Aqua Slide), the manufacturer of the slide. Aqua Slide has since sought protection under chapter 11 of the United States Bankruptcy Code and is not a party to this appeal. ² Following the completion of discovery, defendants Schum and Clover moved and plaintiff cross-moved for summary judgment.

The submissions demonstrate that the Schums purchased the pool slide from defendant Clover in 1975. They claim that Clover also installed the slide, an assertion that Clover disputes. The president of Aqua Slide testified at his deposition that it was not uncommon for people to slide headfirst down pool slides such as the one owned by the Schums and that the slides had been designed with that fact in mind. Indeed advertisements for the slides depicted people performing such headfirst belly slides. Moreover, the affidavit of plaintiff's expert indicated that it was commonly known in the pool slide industry that people often used inner tubes as targets while sliding off the slides. The expert further opined, however, that while the slide design conveyed a deceptive appearance of safety to its users, actually such belly slides may cause the torso to tilt downward upon entry into the water, converting the slide into a dangerous dive.

In 1976, about a year after the Schums purchased their pool slide, the Consumer Product Safety Commission (CPSC) promulgated standards applicable to all pool slides sold in the United States. The standards required, in part, that instructions on the use of these slides, including warnings about the danger of sliding headfirst, be affixed to the slide upon installation. It is undisputed that although Aqua Slide subsequently distributed warnings to Clover about the dangers of the pool slide, Clover never conveyed the warnings to the Schums and no warning labels were ever affixed to the slide. David and Linda Schum testified that they did not know of the dangers of headfirst belly slides, although they admitted warning their children to be careful in performing such slides.

Supreme Court granted the Schums' motion and dismissed the complaint as against them but denied summary judgment to Clover against plaintiff and on its cross claim for contribution from the Schums. Supreme Court also denied plaintiff's cross motion for summary judgment against both defendants.

Because it concluded that the facts concerning plaintiff's conduct were "materially indistinguishable" from the facts in Howard v. Poseidon Pools, 72 N.Y.2d 972, 534 N.Y.S.2d 360, 530 N.E.2d 1280, supra, the Appellate Division modified by granting summary judgment to Clover and dismissing the complaint against it. 145 A.D.2d 985, 536 N.Y.S.2d 356. Two Justices dissented, concluding that unlike the plaintiff in Howard, plaintiff here was engaged in a reasonably foreseeable use of the slide, did not indicate that she knew that the use was dangerous and that no safety warnings of the danger were posted. Thus they found that issues of fact existed such as would warrant denial of the drastic remedy of summary dismissal of the complaint and would require a trial for their resolution. On plaintiff's appeal pursuant to CPLR 5601(a), we now modify the order of the Appellate Division, deny summary judgment to Clover and the Schums and reinstate the complaint.

Denkensohn v. Davenport

This action also arose from a diving accident. Plaintiff was injured in August 1983 while using a residential in-ground swimming pool owned by defendants Richard and Betty Davenport. The record before Supreme Court established that on the night of the accident, plaintiff Sheri Denkensohn, then 16 years old, had attended a party with her girlfriend, Stacy Gorman. She later left the party with Gorman, David Davenport and Brian Cessarato. After stopping at a local bar/restaurant, the four proceeded to Davenport's home to swim. Plaintiff had never been to the Davenport home before.

After they arrived at the Davenport home and changed into their swimsuits, David announced that a "ritual" existed whereby each person had to enter the pool for the first time by diving from the top of the pool slide. As the group walked out the house to the pool area, plaintiff remembered that she was wearing her contact lenses and went to the car to remove them. Meanwhile, David and Stacy dove into the deep end of the pool from the top of the pool slide. The slide curved toward the deeper end of the pool, but was located at the side of the pool, near the area where a white line on the pool bottom indicated the division between the deep and the shallow areas. A diving board was located perpendicular to the side of the pool where the slide was installed. The pool area was illuminated only by a light on the back porch because David had failed to turn on a 300-watt underwater light in the pool.

When the plaintiff returned to the pool area after removing her contact lenses, she could hear her friends splashing around in the pool, but was unable to see them because of the darkness. She was able, while climbing to the top of the slide, to see the steps of the slide ladder. While on the slide platform, she could not discern the depth of the water, although she could see the water's surface. Before diving, plaintiff asked David whether it was all right to dive and he responded that it was. Relying on the fact that other pool slides with which she was familiar had been located at the deep end of pools, and on David's assurances that it was all right to dive, plaintiff presumed that the water in front of her was deep enough for diving. Tragically, it was not--she dove into the shallow end of the pool adjacent to the slide, struck her head on the pool bottom and was rendered a quadriplegic.

Additionally, as in Kriz, the submissions on summary judgment demonstrated that the pool slide industry was aware of the dangers of the slides. In 1976, three years after the Davenports purchased their pool slide, the CPSC promulgated regulations requiring, among other things, that certain warnings be affixed to the slides. In response to these regulations, the manufacturer of the Davenports' pool slide began putting warning decals on its slides and in fact furnished the decals to its distributors, including Archie Lawrence. One of the warning decals...