Sheehan v. The North Am. Mktg. Corp.
| Decision Date | 30 June 2010 |
| Docket Number | No. 08-1519.,08-1519. |
| Citation | 610 F.3d 144 |
| Parties | Jennifer SHEEHAN, Plaintiff, Appellant,v.THE NORTH AMERICAN MARKETING CORP. and Delair Group, LLC, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Barry C. Reed, Jr. with whom David E. Maglio was on brief, for appellant.
John W. Kershaw with whom Mark P. Dolan and Eric E. Renner were on brief, for appellee The North American Marketing Corp.
Joseph V. Cavanagh, Jr. with whom Mary C. Dunn was on brief, for appellee Delair Group, LLC.
Before LYNCH, Chief Judge, BOUDIN, Circuit Judge, and SAYLOR, *District Judge.
This is an appeal of a decision granting summary judgment in a product liability action arising out of a tragic swimming pool accident. Plaintiff-appellant Jennifer Sheehan is a resident of Rhode Island. Defendants-appellees The North American Marketing Corp. (“NAMCO”) and Delair Group, LLC, are a seller and manufacturer, respectively, of swimming pools. Jurisdiction is based on diversity of citizenship.
Sheehan suffered a catastrophic injury in 2002 when she broke her neck attempting to dive into a shallow, above-ground pool. As a result of the accident, she was rendered a quadriplegic. She brought suit for negligence, strict liability, breach of express warranty, and breach of implied warranty, alleging in substance that the design of the pool was defective. The district court granted summary judgment on the grounds that Sheehan assumed the risk of serious injury when she attempted the dive and that her proof of proximate cause was unduly speculative. While we are less certain as to the causation issue, we find that the assumption of risk defense applies as a matter of law. We accordingly affirm.
I BackgroundA. Events Prior to the Injury
On August 8, 2002, at about 1:30 p.m., Sheehan and Marvin Nadiger drove to the Islander Restaurant in Warwick, Rhode Island. Sheehan was then thirty-two years old. At the restaurant, the two shared a scorpion bowl, a drink made with fruit juice and alcohol. After leaving the restaurant, they drove to the Oakland Beach Club in Warwick, where Sheehan drank two or three twelve-ounce beers and had one or two shots of tequila. They then drove to Nadiger's home in Warwick, arriving at approximately 5:30 p.m. Not long after arriving, Nadiger, Sheehan, and Nadiger's three children decided to go swimming in the pool located in his backyard.
B. The Structure of the Pool
The swimming pool was an above-ground “Johnny Weismuller Safari” model manufactured by Delair and sold by NAMCO.1 It was 18 feet in diameter and four feet high. At the time of the incident, the pool was filled with about three and one-half feet of water. A ladder over the edge of the pool was used for entry and exit. There was no decking or other platform next to the pool.
The top perimeter of the pool was covered by a piece known as a “coping.” The coping was made of flat extruded aluminum with ridges or grooves on its surface. It was approximately six and one-half inches wide inches wide. Its function was to connect the pieces of the pool wall and prevent damage to the top surface of the wall.
It is undisputed that the coping was not intended to be stood upon or used for diving.
C. The Warning Labels
The pool contained at least four relevant warning labels.
First, there was a warning sign on the coping where the ladder entered the pool. That sign stated “DANGER” in bold red capital letters against a white background. That was followed by the words “NO DIVING-SHALLOW WATER-DIVING MAY CAUSE DEATH OR PERMANENT INJURY.” Those words were in bold black capital letters. There was also a pictogram showing a person striking his head on the bottom of the pool, with red lines suggesting an injury to the neck; the drawing was in a red circle with a red diagonal slash across it.
Second, there was a sign stating “DANGER-NO DIVING-SHALLOW WATER” on the inside portion of the coping above the waterline, visible to persons within the pool. The warning faced the inside of the pool, approximately one-third of the way around the circumference from the ladder. The sign on the coping was approximately 1.25 inches high in bold red capital letters against a white background.
Third, there was an identical sign stating “DANGER-NO DIVING-SHALLOW WATER” approximately two-thirds of the way around the pool from the ladder.
Fourth, on each of the three slip-resistant ladder treads on the outside of the pool, there was an embossed sign that stated “DANGER-SHALLOW WATER-DO NOT DIVE OR JUMP” in capital letters.
Sheehan testified that she did not read the warnings, but even if she had, she would have dived anyway.
D. The Injury
Sheehan used the ladder when she first entered the water, and several times after that to help the children out of the pool.2 While playing with the children, but before attempting her first dive, Sheehan noticed that the “thin metal” coping around the top edge of the pool
After playing in the pool for about thirty minutes, Sheehan hoisted herself up into a sitting position and then to a standing position on the coping. She stood on the coping for about twenty seconds and then performed a shallow dive, during which she intentionally aimed across the pool and not down. Sheehan testified that she was aware that diving into shallow water could be dangerous because she could hit her head on the bottom of the pool. However, she also testified that the only danger she thought she was facing was that she could get scraped on the bottom of the pool, and that she had never heard of anyone getting hurt from diving into shallow water.
Sheehan successfully executed her first dive without injury. She came up out of the water in front of Nadiger, who was in the pool. According to Nadiger, at that point he said, and pointed to the warning on the side of the pool. He testified that both of them then laughed. 3
Sheehan then climbed onto the same part of the coping to attempt a second dive. She again pulled herself up into a sitting and then a standing position on the coping. After standing on the coping for about ten seconds, she attempted to perform a shallow dive. As she was attempting to dive, she lost her balance and entered the pool at a steep angle, described by witnesses as a “jackknife.” She struck her head on the bottom of the pool, which caused her to suffer a burst fracture of the C5 vertebra. The injury rendered her a quadriplegic.
Sheehan testified that she did not know what caused her to lose her balance or how she slipped during her second dive: She does not know where her arms and feet were positioned before and during her second dive, nor does she know how she entered the pool during her second dive. She could only recall looking at her feet as she stood on the coping and then entering the water.
Sheehan's blood-alcohol level, which was taken at the hospital when she arrived later that evening, was 0.16%. According to the report of the toxicologist, her blood-alcohol level at the time of the injury was likely even higher, between 0.169% and 0.178%. Individuals with this blood-alcohol level typically show outward signs of intoxication- e.g., a staggered gait, impaired vision, and decreased reaction time-though Sheehan herself denied feeling any impairment from the alcohol while diving.
E. Expert Evidence
All parties submitted expert reports in support of their positions in the summary judgment proceedings. There is no dispute that Sheehan's injuries were caused by the top of her head striking the bottom of the pool. One of Sheehan's experts suggested that the injury could have been avoided if she had successfully performed her second dive in the same manner as the first dive.4 Sheehan also offered evidence to support her allegation that the coping was defective in its design and was the proximate cause of her injury.
Her engineering expert, Gaston L. Raffaelli, opined that the coping was defective because it was unstable and narrow. He stated that it was foreseeable that pool users would use the narrow coping as a resting place and that swimmers would easily hoist themselves onto it because it was only a few inches above the water. He further opined that it was foreseeable that pool users would stand on the coping and re-enter the pool by either jumping or diving into it. He also stated that the presence of the narrow and unstable coping was a danger to pool users because they could lose their balance and topple into the pool in an uncontrolled manner. In Raffaelli's opinion, Sheehan's injury would have been avoided had the defendants designed the pool in a way to prevent pool users from standing on the coping. He suggested that this could have been accomplished by installing a design modification, such as a cap, that would prevent users from accessing the coping of the pool.
Her aquatic safety expert, Thomas C. Ebro, expressed a similar opinion. 5 He opined that the narrow and unstable nature of the six-inch coping was inherently dangerous because pool users could easily stand on top of it, thereby subjecting them to the risk of losing their balance and falling into or out of the pool. He also suggested that the manufacturer should have incorporated a rounded cap over the coping to prevent pool users from standing on or obtaining access to it. He stated that, in his opinion, had the defendants incorporated such a design, Sheehan's injuries would have been avoided.
F. The District Court's Ruling and the Appeal
On April 2, 2008, the district court granted the defendants' motion for summary judgment on all counts. It held that as a matter of law Sheehan assumed the risk of her injury when she decided to dive from the coping into the shallow water of an above-ground pool. On that basis, the court dismissed the negligence and strict liability claims.
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