Telak v. Maszczenski

• Decision Date: 18 January 1968
• Docket Number: No. 663,663
• Citation: 248 Md. 476,237 A.2d 434
• Parties: Eugene TELAK v. Anthony MASZCZENSKI et al.
• Court: Maryland Court of Appeals

Page 476

248 Md. 476

237 A.2d 434

Eugene TELAK v. Anthony MASZCZENSKI et al.

No. 663.

Court of Appeals of Maryland.

Jan. 18, 1968.

Wallace Dann and Daniel F. Thomas, Baltimore (Howard Calvert Bregel and Calvert Ross Bregel, Baltimore, on the brief), for appellant.

Wilbur D. Preston, Jr., Baltimore (William B. Whiteford, Due, Whiteford, Taylor & Preston and Harold Lev, Baltimore, on the brief), for Anthony Maszczenski and Mary Maszczenski, appellees.

Michael P. Crocker, Baltimore (Piper & Marbury, Baltimore, on the brief), for Van Dorn Foods, Inc., appellee.

Wm. B. Somerville, Baltimore (Douglas G. Worrall and Smith, Somerville & Case, Baltimore, on the brief), for Bacharach & Bacharach, appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

McWILLIAMS, Judge.

There was a swimming party at the Maszczenskis' on 4 July 1962. Some 40 to 50 friends and relatives had been invited to celebrate the birthday of Mrs. Maszczenski's sister, Helen Gajewski. Among the guests were the appellant (Telak), his wife and 7 year old son. They arrived at the Maszczenski home in Pikesville, Baltimore County, around 1:00 p. m. At about 4:30 p. m. tall, husky, 35 year old Telak mounted the diving board, dove into the pool and struck his head against the bottom. Face down, he floated to the surface, paralyzed and 'in teriffic pain.' Ever since he has been a quadriplegic, helpless and utterly without hope. On 7 May 1963 he sued the Maszczenskis, Van Dorn (who sold the pool), and Bacharach (architects and professional engineers). On 9 February 1966 trial began before Jenifer, J., and a jury, in the Baltimore County Circuit Court. After 9 days of trial the plaintiff concluded his case whereupon all defendants moved for directed verdicts. At this juncture Judge Jenifer fell ill. The parties chose not to wait for his recovery. They agreed to continue before the same jury and Judge Proctor to whom was read all of the testimony and who read all of the pleadings and examined all of the exhibits. Judge Proctor heard argument on the motions for several days and on 3 March he directed the entry of verdicts in favor of all of the defendants. We agree, regretfully, that his decision was correct.

There was a time when swimming pools were appurtenances of the well-to-do. During the past 10 years, however, private residential pools have become both inexpensive and commonplace. In Baltimore County alone, the evidence reveals, 419 private pools were installed between 1956 and 1959. The Maszczenski pool is a fiberglass shell 35 feet long and 15 feet wide. Its maximum depth is 7 feet below the ground level. Its 5 preformed sections, each 7 feet long, were manufactured in Florida by Delorich, Inc. They were delivered to Maszczenski (also called Tony) in the late summer of 1959, arriving in a truck bearing a Florida license. Maszczenski was present during the unloading.

It was shown that at least one other company, from 1955 to 1961, manufactured and marketed identical pools in at least 4 states, including New York, New Jersey and Connecticut, where they were approved for use in residences and small motels. When Van Dorn began selling the Delorich pools in 1955 the county authorities required the pool to be approved by an architect. Van Dorn engaged Bacharach to do whatever was necessary in this regard. The county engineering authorities, in 1956, approved the drawings developed by Bacharach.

Two blocks from the Maszczenski home, a neighbor had installed a Delorich pool. Except that it was 7 feet (one section) shorter it was identical with the Maszczenski pool. Along with his brother-in-law, Thomas Gajewski, he visited the property, examined the pool and discussed it with his neighbor for several hours. Shortly thereafter he bought the pool from Van Dorn. Gajewski (on behalf on Maszczenski) applied for the required building permit, submitting with his application copies of the Bacharach drawings which had been approved by county authorities in 1956. The zoning, engineering and health officials approved the application (including the Bacharach drawings), and the permit was issued on 5 August 1959.

Maszczenski employed Gajewski to supervise the installation of the pool. Gajewski was a maintenance man at the Bethlehem Steel plant. He could read blueprints and he had built 3 or 4 houses, including his own. When the excavation was finished Gajewski glued the 5 sections together, embedded the shell in the ground and filled it with water. By the end of the year all of the work was finished except for the laying of the tile walkway around the edge of the pool. This was accomplished in the summer of 1960 with the help of Telak who knew 'how to lay tile' whereas Gajewski did not. They were close friends, 'just like brothers.' Gajewski explained to Telak how he had put it all together. Since Delorich did not provide a diving board with the pool, Gajewski procured one from another source and installed it for Maszczenski.

Maszczenski's maintenance of his pool was such that it 'was crystal clear-at all times.' 'It was very clear' on 4 July 1962. The pool had been used by Maszczenski's 4 daughters and others all during the spring, summer and early fall of 1960 and 1961, and during spring and early summer of 1962. Judge Jenifer refused to let Maszczenski answer questions as to whether any one had ever been injured in the pool but his brother Chester, who works for him and who used the pool from time to time, was allowed to say that, prior to Telak's injury, he had no knowledge of any injuries to anyone using the pool. An expert witness produced by Telak admitted that no one, including counsel for Telak, had informed him that, between 1956 and 1961, 18 identical pools with similar diving boards had been installed in Baltimore County and adjoining counties, and 'that no word of any injuries in any of those pools' had ever come to the dealer who sold them. The appellees stress Telak's admission that no pool of the type here involved has ever been proven to be 'dangerous or hazardous.'

Chester testified that once in July 1961 he dove from the diving board and as he 'came out of * * * (his) dive and took a stroke, * * * (he) brushed the ledge of the pool, the upgrade of the pool' with his forehead. He was 'not in any way injured.' There were no 'marks of any kind on' him. He stayed in the water and 'kept on fooling around' with his brother, Michael. Later on he 'casually mentioned' to Tony that he 'had touched bottom.'

Telak, in his original declaration, described himself as 'an expert swimmer and athletic in build.' When he was a 'kid' he dove from the piers into Baltimore harbor. As he grew older he continued to swim and dive in pools in Baltimore and at Air Force bases in this country and abroad. Additional experience was gained over the years in the ocean at Myrtle Beach, South Carolina, Ocean City, Maryland, Wildwood and Atlantic City, New Jersey and in the Chesapeake Bay and the Santee and Columbia rivers in South Carolina. He swam frequently from the pier of a neighbor at Rock Creek (in Anne Arundel County) where the water varied in depth from 6 inches to 12 feet and where one cannot see the bottom except in shallow water.

Telak stood near the pool and watched his son during much of the time the boy was in the water. It was close to 4:30 p. m. when he and Gajewski put on bathing trunks and walked to the shallow end of the pool where the water was from 3 to 4 1/2 feet deep. Telak said he had never before been in the pool. After looking to see if there were any children in the way he 'just shoved off' in a 'shallow dive' toward the deep end of the pool. When he stood up he was in about 4 feet of water. He swam over to where his son was standing, spoke to him went to the ladder and climbed out of the pool. The ladder was about midway on one side where the water was waist deep. He walked to the diving board, intending, he said, to dive so that he could go the length of the pool under water and surface near his son at the shallow end. As he stood on the end of the board he could see Gajewski who was standing on the bottom in about 4 feet of water and who was no more than 15 feet directly in front of him. He 'just shoved off in a normal shallow dive.' He was unable to say precisely where on the bottom he struck his head but he placed on the drawing an 'X' mark at what he thought was the spot.

It would not be amiss, perhaps, to add that Van Dorn is owned by Wayne Nield and Frances, his wife, and that, as a sideline, they began to sell Delorich pools sometime in 1955. Neither of them has any technical training or experience and their knowledge of the design and manufacture of the pools appears to have been limited to the information contained in the Delorich literature, all of which was made available to the Bacharachs when they were employed by the Nields to prepare drawings for submission to the county authorities.

We shall deal with Telak's assignments of error in the order in which they appear in his brief and in so doing we shall state whatever additional facts may be necessary. We are required, of course, to consider the evidence and all logical and reasonable inferences deducible therefrom in a light most favorable to Telak.

I.

Although Judge Proctor found that Telak was a 'guest' of the Maszczenskis' he restricted his legal status to that of a 'bare licensee' to whom is owed only the duty of abstaining from intentional injury. Telak, charging error, claims he is entitled to the status of 'social guest' to whom, he insists, is owed a duty just short of the duty owed to an invitee or business visitor.

Since the trial below we have considered, in two cases, what status is to be accorded the social guest. Paquin v. McGinnis, 246 Md. 569, 229 A.2d 86 (1967) and Stevens v. Dovre, 248 Md. 15, 234 A.2d 596 (1967). In Stevens, Judge Marbury, who also wrote the opinion in Paquin, said, for the court 'The duty of a home...