Vallillo v. Muskin Corp.

• Decision Date: 29 June 1987
• Citation: 218 N.J.Super. 472,528 A.2d 53
• Parties: Stephen VALLILLO, Plaintiff-Appellant, v. MUSKIN CORPORATION, S.K. Plastics Corporation, Davis Swim Pool Center and Edward Vallillo and Donna Vallillo, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 472

218 N.J.Super. 472

528 A.2d 53

Stephen VALLILLO, Plaintiff-Appellant, v. MUSKIN CORPORATION, S.K. Plastics Corporation, Davis Swim Pool Center and Edward Vallillo and Donna Vallillo, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued May 20, 1987.

Decided June 29, 1987.

George J. Duffy, Hoboken, for appellant (Baker, Garber, Duffy & Baker, attorneys; George J. Duffy, on the brief).

Bruce E. Helies, Red Bank, for respondents Vallillo (Wolff, Helies & Duggan, attorneys).

Before Judges FURMAN, SHEBELL and STERN.

The opinion of the court was delivered by

SHEBELL, J.A.D.

Plaintiff, Stephen Vallillo, appeals from a summary judgment entered in the Law Division in favor of defendants, Edward Vallillo and Donna Vallillo.

Summary judgments in this action have previously been entered in favor of defendants, Muskin Corporation ("Muskin"), S.K. Plastics Corporation ("S.K."), and Davis Swim Pool Center ("Davis") by direction of another panel of this court. Vallillo v. Muskin Corp., 212 N.J.Super. 155, 514 A.2d 528 (App.Div.1986) (motion for leave to file an interlocutory appeal to Supreme Court denied October 30, 1986).

Plaintiff was invited to a "cousins" swim party at the home of defendants, Edward Vallillo and Donna Vallillo. Plaintiff suffered multiple fractures of his cervical spine with dislocations when he struck his head on the bottom of the above- ground pool upon the premises when attempting a dive. Plaintiff asserts that he attempted a shallow dive because he knew that the pool was no deeper than four feet, but that his feet went up over his head propelling him into the bottom of the pool with such force as to cause a six inch deep imprint of his head in the plastic liner on the soft bottom of the pool. The 23 year old plaintiff was six feet, four inches tall and weighed 190 pounds at the time of his injury.

The pool was manufactured by Muskin and sold by Davis to a third party from whom defendants purchased it used. The pool required a replacement liner as Edward Vallillo was unable to properly install the original liner. He purchased a new liner manufactured by S.K.

The wall of the pool contained the words "DANGER--DO NOT DIVE" in only one location. Edward personally constructed a deck around approximately eight feet of the circular above-ground pool thereby covering the one sign which related to the danger of diving. Defendant, Edward Vallillo, admitted in his deposition that his intended use of the deck was to jump in the pool, which to him included diving.

The warranty from S.K. which accompanied the plastic replacement liner stated:

IMPORTANT ... FOR YOUR HEALTH & SAFETY ... PLEASE NOTE ... this swimming pool does not have sufficient depth for diving. do not dive. do not allow others to dive into this swimming pool. diving is dangerous. [ (emphasis added) ].

Edward testified that he never read the warranty or the warnings from S.K. and that he did not instruct anyone not to dive or how they were to use the pool. He acknowledged that he knew you were not supposed to dive into a pool such as this. Plaintiff testified that Edward himself was the first to dive into the pool and that everyone was diving, jumping and horsing around at a party where the Vallillos served beer and invited the guests to bring their own bottle.

In considering whether the Law Division was correct in granting summary judgment we ask first, whether there was a genuine issue of material fact and, if not, whether the motion judge's ruling on the law was correct. Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. If the papers show there is no material issue, then summary judgment should be granted. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954).

Defendants Vallillo maintain that they had no duty to warn plaintiff as he was merely a social guest and had knowledge of the risks involved as evidenced by his intention to do a shallow dive. They urge that even assuming that they had breached a duty to the plaintiff, the breach could not be a proximate cause of the accident under the holding of Vallillo v. Muskin Corp., supra, that "[i]f the user of a product knows ... the ... danger of which the warning would have apprised him, but chooses to disregard that conscious knowledge, then the presence or absence of the warning is irrelevant." 212 N.J.Super. at 159-160, 514 A.2d 528.

We accept, for the purpose of resolving the issue before us, that plaintiff was a social guest enjoying no greater status than that of a licensee. See Berger v. Shapiro, 30 N.J. 89, 96, 152 A.2d 20 (1959); Pearlstein v. Leeds, 52 N.J.Super. 450, 455-456, 145 A.2d 650 (App.Div.1958), certif. den. 29 N.J. 354, 149 A.2d 303 (1959). Although plaintiff was upon defendants' land as a result of a written invitation, he is not entitled to as high a degree of care for his safety in certain respects as one who is on the premises to confer other than a purely social benefit upon the inviters. Berger, 30 N.J. at 96, 152 A.2d 20; Taneian v. Meghrigian, 15 N.J. 267, 275, 104 A.2d 689 (1954).

Here, however, the liability of defendants cannot be categorized as relating exclusively to a static condition of the land. In addition, liability may in part be predicated upon the activities of the landowners which contributed to their guest's injury. See Cropanese v. Martinez, 35 N.J.Super. 118, 122-123, 113 A.2d 433 (App.Div.1955). Defendants, as landowners, had an obligation only to warn plaintiff of any dangerous conditions upon the land which were known to them. Taneian, 15 N.J. at 275, 104 A.2d 689. Nonetheless, they would be liable for their negligence in the course of things done on the land as well as for any failure to use reasonable care to prevent injury from dangers they created. Id. at 276, 104 A.2d 689.

Therefore, the question of whether defendants breached their duty to plaintiff cannot be answered by taking so narrow a view as to look only at the condition, namely, the shallowness of the pool. We must...