Sheehan v. Anthony Pools, a Div. of Anthony Industries, Inc.

• Citation: 440 A.2d 1085,50 Md.App. 614
• Decision Date: 03 February 1982
• Docket Number: No. 394,394
• Parties: , 32 UCC Rep.Serv. 1402 John B. SHEEHAN et ux. v. ANTHONY POOLS, A DIVISION OF ANTHONY INDUSTRIES, INC.
• Court: Court of Special Appeals of Maryland

Page 614

50 Md.App. 614

440 A.2d 1085, 32 UCC Rep.Serv. 1402

John B. SHEEHAN et ux. v. ANTHONY POOLS, A DIVISION OF ANTHONY INDUSTRIES, INC.

No. 394.

Court of Special Appeals of Maryland.

Feb. 3, 1982.

Walter J. Murphy, Jr., Wheaton, with whom were Welch, Murphy & Welch, Wheaton, on the brief, for appellants.

John J. O'Neill, Jr., Rockville, with whom were Ford & O'Neill, Rockville, on the brief, for appellee.

Argued before MOYLAN, MOORE and BISHOP, JJ.

MOORE, Judge.

In this products liability case, the host at a private party in Montgomery County fell off the diving board of his swimming pool onto the concrete coping of the alcove from which the board projected. A suit by the host and his wife against the swimming pool company ended with a defendant's verdict after a three-day jury trial. The central question on appeal, among two other issues, is whether the trial court erred in refusing to instruct that inadvertent or careless use of the board was not a defense. We find reversible error and remand for a new trial.

I

In the Spring of 1976, John B. Sheehan and his wife, appellants, contracted with Anthony Pools, a Division of Anthony Industries, Inc., for the construction of a Grecian-type swimming pool, equipped with diving board, at their home in Rockville, Maryland. The pool was thereafter built and, on the evening of August 21, 1976, the Sheehans invited a number of guests to their home. After a while, several guests and the host decided to have a swim. Mr. Sheehan had used the pool once before, but not the diving board. On this occasion, he took to the board but fell off the right side and landed on the concrete apron, sustaining severe injuries. The configuration of the pool, with the six-foot diving board, reproduced below, is typical of several Anthony Pool designs, the deep end of the pool curving around the diving board rather than being at a straight angle to it:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Sheehans' declaration alleged negligence, breach of warranty and strict liability. Appellants took voluntary nonsuit on the negligence count which alleged that "the diving board was not properly provided with a non-skid surface and the shape of the coping in the area of the diving board was negligently designed." The case proceeded on the counts alleging strict liability ("the defendant sold ... a defective pool and diving board which was unreasonably dangerous ...") and breach of an express warranty (that the "diving board was protected by non-skid materials over its entire surface"), and "warranties implied in law."

Appellants' witnesses at trial included an individual who was permitted to testify as an expert "on the safe use of diving boards." ¹ His conclusion was:

"That how it was being used with this pool with that five-foot aid used at the end of the deep end and not having the nonslip material leased out to the edges or rolled over slightly on the edges for the entire length of the board, that it was a hazardous board to have in the application like that." ² (sic )

At the close of appellants' case, the court directed a verdict for the defendant on the count alleging breach of warranty, ruling that the contract negated any implied warranties. Before the case went to the jury on the strict liability count, the court rejected both appellee's requested instruction that contributory negligence was a defense and appellants' requested instruction that inadvertence in the use of the diving board by Mr. Sheehan was not a defense.

In its instructions on strict liability, the court stated that there were two distinct defects for the jury to consider: "Number one, that the diving board was defective because the non-skid material didn't extend over to the edge of the diving board, and secondly, that the pool was designed in the diving board area in a fashion so that it was defective."

In their appeal following the jury's verdict for the defendant on the strict liability count, the Sheehans assign three grounds of error: (1) That the court below should not have granted a directed verdict on the breach of warranty count; (2) that the court erred in refusing to grant an instruction that "inadvertence or mere negligence in the use by a consumer of a product is not a defense"; and (3) that appellants' counsel was improperly prevented in final argument from referring to an alleged characterization by the defendant of the diving board as "experimental."

II

The warranty allegedly breached, according to the Sheehans, was that the diving board was covered with non-skid materials. This was claimed to be express or, at all events, implied in law. The contract between the parties, entitled "Retail Installment Contract" contained a section captioned, "Guarantees and Warranties," which provided inter alia that "non-pool structure items, including all pool equipment ... carry a one-year warranty against defects in workmanship and materials." Beneath the section, in capital letters appeared the following disclaimer:

"THE EXPRESS WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING (WHERE PERMITTED BY LAW) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, AND OF ANY OTHER OBLIGATION OR LIABILITY, INCLUDING NEGLIGENCE ON THE PART OF ANTHONY ...."

In directing a verdict for Anthony on the warranty count, the court below stated: "The contract takes care of the warranty aspect of the case." ³

The court appears to have overlooked the applicability vel non of the Maryland Uniform Commercial Code relating to exclusions of implied warranties. Md.Com.L.Code §§ 2-316 and 2-316.1 (1975 Repl.Vol.). While § 2-316(2) permits generally the exclusion or modification of implied warranties of merchantability or fitness, § 2-316.1(1) specifically provides that § 2-316 does not apply "to sales of consumer goods, as defined by § 9-109, services or both"; and § 2-316.1(2) goes on to declare such exclusions "unenforceable." That subsection reads as follows:

"(2) Any oral or written language used by a seller of consumer goods and services, which attempts to exclude or modify any implied warranties of merchantability and fitness for a particular purpose or to exclude or modify the consumer's remedies for breach of those warranties, is unenforceable. However, the seller may recover from the manufacturer any damages resulting from breach of the implied warranty of merchantability or fitness for a particular purpose."

As Judge Wilner stated for this Court in Maryland Independent Automobile Dealers Association, Inc. v. Administrator, Motor Vehicle Administration, 41 Md.App. 7, 11, 394 A.2d 820 (1978), the above-quoted section "makes absolutely clear, without condition or equivocation, that any attempt by the seller ... to modify or exclude implied warranties is unenforceable. As between seller and buyer, there are no 'ifs, ands, or buts'."

Attempting to support the trial court's ruling, Anthony Pools contends in its brief that subsection (2) "relates to a seller and not, as in this situation, a manufacturer." (Emphasis in original). What this overlooks is that the Code defines "seller" as used in §§ 2-314 through 2-318 to include the manufacturer, distributor, dealer, wholesaler or other middleman, or the retailer. § 2-314(2). Here, Anthony Pools is a division of the corporate entity, Anthony Industries, Inc. Thus, the appellee is, in fact, both manufacturer and seller.

Finally, the swimming pool package purchased by the Sheehans constitutes "consumer goods" which are defined in § 9-109 as used or bought for use primarily for personal, family or household purposes. The definition is certainly broad enough to encompass a backyard swimming pool. Donnelly v. Mustang Pools, Inc., 84 Misc.2d 28, 374 N.Y.S.2d 967 (1975) ⁴ (agreement for construction of swimming pool at residence a "consumer transaction" within meaning of a statute defining such transaction as one for personal, family or household purposes.) Because the implied warranties of merchantability and fitness for purpose may not be disclaimed by a seller of consumer goods, the court erred in directing a verdict for the defendant.

III

The doctrine of strict liability, an enlightened social policy, came into being in § 402A of the Restatement (Second) of Torts (1965) ⁵ and was adopted in Maryland in 1976. Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955. It subjects to liability one who sells a product in a defective condition and unreasonably dangerous to the user, if the product is used without substantial change. The defect can be of manufacture or design but "in some circumstances the question of whether a particular design is defective may depend upon a balancing of the utility of the design and other factors against the magnitude of that risk." Id. at 348, 363 A.2d 955. ⁶

In the instant appeal, the defects alleged were in design: (a) that the diving board was defective because the non-skid material covering the board did not extend over the edges; and (b) that the pool and diving board area were defectively designed because a diver who slipped off the side of the board would fall on the concrete coping.

The trial court carefully instructed members of the jury that their inquiry "is directed not to the care that the manufacturer used in designing this particular pool and board, but your inquiry is rather directed to the pool and diving board itself." The court continued:

"In this case liability is based on the existence of a defect that makes a product unreasonably dangerous for its intended use. As to this requirement of unreasonably dangerous, the Court instructs you that the product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who utilizes the product with the ordinary knowledge common to its characteristics.

"To satisfy the unreasonably dangerous requirement, the Plaintiff(s) in this case, Mr. and Mrs. Sheehan, must prove...