Tighe v. Peterson

• Decision Date: 10 January 2002
• Parties: Paul J. TIGHE and Renee Tighe, h/w Plaintiffs-Appellants, v. Deborah A. PETERSON and Theodore Peterson, h/w, Defendants-Respondents.
• Court: New Jersey Superior Court

812 A.2d 423

356 N.J. Super. 322

Paul J. TIGHE and Renee Tighe, h/w Plaintiffs-Appellants, v. Deborah A. PETERSON and Theodore Peterson, h/w, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued December 5, 2001.

Decided January 10, 2002.

Louis Cappelli, Jr., Collingswood, argued the cause for appellants.

William L. Lundgren, III, Cherry Hill, argued the cause for respondents (Green, Lundgren & Ryan, attorneys; Mr. Lundgren, on the brief).

Before Judges KING, CUFF and WECKER.

KING, P.J.A.D.

Plaintiffs appeal from the grant of summary judgment in favor of defendants. On August 16, 1996 at 3 p.m. plaintiff Paul Tighe was injured from a dive into the in-ground pool at the home owned by defendants in Sicklerville, Camden County. Plaintiff was a social guest of defendants. We find no violation of any duty by defendants to the social-guest plaintiff and affirm.

I

Defendants Deborah and Theodore Peterson reside at 107 Country Lane in Sicklerville, Camden County. Defendant Deborah Peterson is the sister-in-law of plaintiff Paul Tighe. About eight years before the August 1996 accident defendant Theodore Peterson purchased an in-ground pool kit. The kit consisted of a liner, a filter, the coping and the steps. Theodore had worked in construction for twenty-three years. He followed the instructions and installed the in-ground pool himself. He stated in his deposition that he dug a hole, laid the block wall, grouted the bottom, installed the liner and the coping, and poured the sidewalk.

The Petersons' pool is rectangular, 16 feet by 32 feet, with a depth of three feet in the shallow end sloping to a depth of seven and one-half feet in the deep end. A diving board stood at the deep end and walk-in steps at the shallow end. The point of the first slope change from the three-foot depth of the shallow end occurred about eight-and-one-half feet from the shallow end wall of the pool. In his deposition, Theodore Peterson stated he did not install depth markers, a rope to separate the deep and shallow ends, or any other markers to indicate the depth of the pool. None came in the kit he bought. He could never identify the manufacturer or vendor of the pool kit. Thus, plaintiff never sued them.

On August 16, 1996 the Petersons invited plaintiff Paul Tighe, age 29, to swim in their pool. Prior to that date, Tighe had visited his sister-in-law, defendant Deborah Peterson, many times since the pool was installed and had used the pool "possibly over twenty times." Paul Tighe stated in his deposition that he knew which end of the pool was the deep end and which end was the shallow end. When asked if he knew not to dive into the shallow end of a pool at the time of the accident, he stated "[w]ell, I know it's not right to dive into the shallow end of a pool, I mean it was common sense."

Paul Tighe's injury occurred when he thought that he dove from the left side of the pool in the direction of the deep end. He stated he believed he was diving towards the deep end of the pool; however, he misjudged the depth "where the slope began" and struck his head on the bottom of the pool causing an injury to his neck. Deborah Peterson was standing or floating in the deep end when Paul Tighe dove in; he intended "just to horse around or maybe tackle my sister-in-law or grab her by the leg. I'm [sic] something like that," according to his deposition.

The plaintiffs' expert, George P. Widas, is a professional engineer and safety professional. Widas' report stated there were no visible signs on the pool indicating the depth of the water, no signs warning of unsafe and dangerous conditions for diving, and no rope or float assembly at the point of the first slope from the three-foot depth in the shallow end. Widas concluded that "[t]he failure of the defendant to properly and adequately inspect for safety and/or maintain the subject residential in-ground swimming pool free of hazardous, unsafe and dangerous conditions violated accepted safe practices and violated the cited references, standards and codes." Plaintiffs assert that this expert opinion created a jury issue on defendants' liability.

II

The duty which hosts owe to their social guests with respect to the conditions of their property is limited. A host has a duty to warn only when dangerous conditions exist on the property of which the host has actual knowledge and of which the guest is unaware. Endre v. Arnold, 300 N.J.Super. 136, 142, 692 A.2d 97 (App.Div.1997); see Berger v. Shapiro, 30 N.J. 89, 98, 152 A.2d 20 (1959)

. Hosts are not required to improve or alter their home in order to render it safer for a guest than for themselves. Endre, 300 N.J.Super. at 142,

692 A.2d 97. "Where a `guest is aware of the dangerous condition or by a reasonable use of his facilities would observe it, the host is not liable.'" Ibid. We recently described the duty in detail in this manner:

The law is well settled regarding the duty a host owes to a social guest as to conditions of the property. The duty is limited. A host need only warn "of dangerous conditions of which [the host] had actual knowledge and of which the guest is unaware." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434, 625 A.2d 1110 (1993); see also Berger v. Shapiro, 30 N.J. 89 97-98, 152 A.2d 20 (1959)

. A "host need not undertake to make improvements or alterations to render his home safer for those accepting his hospitality than for himself." Berger, supra, 30 N.J. at 97,

152 A.2d 20. The host is under no duty to inspect his or her premises to discover defects which otherwise might not be known to the casual observer. Id. at 98, 152 A.2d 20. Where a "guest is aware of the dangerous condition or by a reasonable use of his facilities would observe it, the host is not liable." Id. at 99, 152 A.2d 20.

[Endre v. Arnold, 300 N.J.Super. 136, 692 A.2d 97 (App.Div.1997).]

The Restatement of Torts, 2d rule adopted in this State in Berger v. Shapiro, 30 N.J. at 89, 152 A.2d 20, states:

§ 342. Dangerous Conditions known to Possessor

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.

[Restatement of the Law Torts, 2d.]

The case-law authority the plaintiffs rely upon is not persuasive to this situation. Vallillo v. Muskin Corp., 218 N.J.Super. 472, 528 A.2d 53 (App.Div.1987), addressed quite a different situation and presented disputed issues for jury determination on the host's conduct. In Vallillo the defendant-property owner purchased and installed a shallow, above-ground pool. After the pool was installed, the defendant constructed a deck around eight feet of the circular pool. The wall of the pool contained a single warning which read "DANGER—DO NOT DIVE." However, upon the construction of the deck by the owner, the sign was completely covered. Id. at 474, 528 A.2d 53. The defendant admitted in his deposition that he constructed the deck so that swimmers could jump or dive into the pool. The defendant also testified that he knew it was dangerous to dive into an above-ground pool, four-feet deep, but he encouraged the practice. Ibid. We reversed the trial judge's grant of the defendant's motion for summary judgment stating "[a] jury could ... find that defendant's construction of the deck increased the likelihood that diving would occur and that defendants not only failed to make known the prohibition against diving, but that [defendant] himself dove into the pool and permitted all of his guests including the plaintiff to dive." Id. at 476, 528 A.2d 53.¹ The landowner's responsibility was enhanced beyond the duty articulated in § 342 because his conduct encouraged a dangerous use of the pool.

In the present case, plaintiff Paul Tighe testified that he had been swimming in the defendants' pool about twenty times. He stated in his deposition that he was aware which end of the pool was the deep end and which end was the shallow end. He also said he was aware it was dangerous to dive into the shallow end of the pool. Plaintiffs contend that the defendants had a duty to warn their guests of the dangers of diving into the shallow end of the pool by posting warning signs, marking the depth of the water, or placing a rope across the pool at the end of the shallow end. Defendants had no duty to make their pool safer for their social guest than for themselves. By his own admission, plaintiff was very familiar with his sister-in-law's pool at the time of the accident. The defendants had no further duty in this circumstance with respect to the known and obvious condition of their property under the common law as explicated by § 342 of the Restatement of Torts, 2d. We find no disputed issue of material fact in this matter. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). The condition of the property allegedly causing the injury was familiar and well known to the plaintiff. This is not a case where plaintiff was unaware of an obscure peril.

Affirmed.

WECKER, J.A.D., dissenting.

I respectfully disagree with my colleagues' conclusion that the result here is compelled by section 342 of the Restatement of Torts, 2d; or that defendants Deborah A. Peterson and Theodore Peterson are not liable for injuries to plaintiff Paul J. Tighe² because they owed no duty "to make improvements or alterations to render [their] home safer for those accepting [their] hospitality than for [themselves]" and because Tighe was "aware of the dangerous condition or by a reasonable use of...