Tighe v. Peterson

• Decision Date: 23 December 2002
• Parties: Paul J. TIGHE and Renee Tighe, h/w, Plaintiffs-Appellants, v. Deborah A. PETERSON and Theodore Peterson, h/w, Defendants-Respondents, and ABC Corporation 1-10, ABC Partnership 1-10, John Doe 1-10 and Jane Doe 1-10, j/s/a, Defendants.
• Court: New Jersey Supreme Court

814 A.2d 1066

175 N.J. 240

Paul J. TIGHE and Renee Tighe, h/w, Plaintiffs-Appellants, v. Deborah A. PETERSON and Theodore Peterson, h/w, Defendants-Respondents, and ABC Corporation 1-10, ABC Partnership 1-10, John Doe 1--10, j/s/a, Defendants.

Supreme Court of New Jersey.

Argued October 21, 2002.

Decided December 23, 2002.

Louis Capelli, Jr., argued the cause for appellants.

William L. Lundgren, III, argued the cause for respondents (Green, Lundgren & Ryan, attorneys).

PER CURIAM.

We affirm for the reasons expressed in the thorough and persuasive opinion of the Appellate Division majority authored by Judge King. We add only the following to underscore our agreement with that decision.

A host's duty to a social guest includes an obligation to warn of a known dangerous condition on the premises except when the guest is aware of the condition or by reasonable use of the facilities would observe it. Tighe v. Peterson, 356 N.J.Super. 322, 325, 812 A.2d 423 (App. Div.2002) (citing New Jersey case law applying test set forth in Restatement (Second) of Torts). Courts employ a fact-sensitive analysis when determining whether a host has fulfilled his or her duty to warn to a particular guest. In this case, we are satisfied that defendants did not have to warn their brother-in-law plaintiff of the configuration of their pool's depth—that is, where the shallow part of the pool was situated and where the shallow end began its slope downward toward the deepest portion of this in-ground pool. Plaintiff had been in the pool approximately twenty times before and testified that he was well aware of where the shallow and deep portions were situated. He also stated that he knew not to dive into the shallow part of the pool.

These hosts did not breach any duty to warn plaintiff about the depth locations when they allowed him to use the pool on what he said may have been his twenty-first occasion to swim there. Id. at 324, 812 A.2d 423. Plaintiff made an unfortunate error on that occasion, injuring himself on the sloped bottom close to the shallow end of the pool. It defies notions of reasonableness to regard plaintiff as being unaware of the slope of the pool bottom, or to conclude he could not reasonably have detected it from his use of the pool that day and on the many occasions before. Nor was there any evidence that defendants encouraged a dangerous use of this pool. Rather, we are confronted here with a plaintiff who acknowledged that at the moment of the injury it was he who was "horsing around." Unfortunately, the accident happened. However, we agree with the majority below that, on these facts, there was no legal duty to warn owed by defendants to plaintiff.

The grant of summary judgment by the courts below is affirmed.

LONG J., dissenting.

Plaintiff Paul Tighe was severely injured when he dove into defendants' pool after apparently misjudging the point at which the pool water was deep enough for diving. Although the pool had no depth or other safety markings, the trial court granted summary judgment in favor of defendants, apparently because plaintiff had used the pool on a number of prior occasions and was generally familiar with it. Over a dissenting opinion by Judge Wecker, the Appellate Division affirmed, essentially on the ground that plaintiff's familiarity with the pool obviated any further duty that defendants otherwise might have had toward him.

That ruling dices the notion of duty too finely. Under our law, the existence of a duty...