Zepik v. Ceeco Pool and Supply, Inc.
| Decision Date | 28 April 1986 |
| Docket Number | No. S85-291.,S85-291. |
| Parties | Ronald ZEPIK, Plaintiff, v. CEECO POOL AND SUPPLY, INC., et al., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Ronald R. Gilbert, Detroit, Mich., Gary Becker, Louisville, Ky., Frank J. Petsche, South Bend, Ind., for plaintiff.
Fred M. Stults, Jr., David L. Zoss, Gary, Ind., for Ceeco Pool and Supply, Inc.
Sam J. Bernardi, Jr., Valparaiso, Ind., for Loren's Pool and Supply, Inc.
Edward N. Kalamaros, South Bend, Ind., for Pleasure Industries.
James K. Whitaker, Hammond, Ind., for Polynesian Pools.
James H. Pankow, South Bend, Ind., for Frost Co.
This cause comes before the court on a motion for summary judgment filed by the defendant, Pleasure Industries, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the court finds that defendant's motion should be granted.
Ronald Zepik brings this product liability action seeking to recover for injuries he received when he dived into an in-ground swimming pool and struck his head on the bottom of the pool. Mr. Zepik alleges that defendants manufactured and/or sold the pool and/or the pool's component parts. Mr. Zepik's complaint is based on the multiple theories of negligence, strict liability, willful and wanton misconduct, and breach of express and implied warranties. Counts VI and VII of Mr. Zepik's complaint allege a violation of the Consumer Product Safety Act, 15 U.S.C. Section 2051 et seq., by failing to inform the Consumer Product Safety Commission of a substantial product hazard, namely that a swimming pool may be defective for failure to warn users that diving into shallow water may result in serious spinal injury. Mr. Zepik further contends that defendants' failure to so inform the Commission was based on a fraudulent and deceitful intent.
Jurisdiction is based on the federal question presented by the alleged violation of the Consumer Product Safety Act. 28 U.S.C. Section 1331. Jurisdiction over the negligence and products liability counts presumably is pendent to the federal question jurisdiction.
On January 2, 1986, Pleasure Industries filed its motion for summary judgment on all counts on the principal ground that, "it did not manufacture, distribute, or otherwise put into the stream of commerce the swimming pool in which Ronald Zepik was injured, or any component thereof, nor was the swimming pool in question constructed according to the designs of Pleasure". Accordingly, Pleasure Industries concludes that it is not subject to liability for Mr. Zepik's injuries either under Indiana law or under federal law.
As to the Consumer Product Safety Act counts, Pleasure Industries reiterates its position that it was neither the manufacturer nor seller of any part of the subject pool; and that, as such, it had no duty to disclose to the Consumer Product Safety Commission, or to the consumer, dangers inherent in a product manufactured or sold by another party. Pleasure Industries concludes that where there is no duty, there can be no violation of the Act under 15 U.S.C. Section 2068 and no personal right of action under 15 U.S.C. Section 2072. It also contends that there is no private cause of action for failure to disclose under 15 U.S.C. Section 2064 and that Mr. Zepik has failed to demonstrate the requisite intent to show that any failure on the part of Pleasure Industries to disclose the known dangers of its product was done with fraudulent and deceitful intent.
In support of its motion for summary judgment, Pleasure Industries filed the following:
In response to Pleasure Industries' motion, Mr. Zepik maintains that Pleasure Industries did manufacture and place into the stream of commerce two products: namely, the piping and the installation instruction manual, which were used in the construction of the subject pool. Mr. Zepik contends that Pleasure Industries' failure to warn the user of the danger of serious injury from diving into a shallow pool rendered these products defective. Mr. Zepik further contends that a private cause of action exists against Pleasure Industries under the Consumer Product Safety Act for its failure to disclose information to the Commission regarding the known dangers of diving into a shallow pool, and that Pleasure Industries' failure to disclose this information was based on a fraudulent and deceitful intent.
In support of his position, Mr. Zepik presented:
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, establish that (1) no genuine issue of material fact exists, and (2) the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Munson v. Friske, 754 F.2d 683 (7th Cir.1985). The moving party bears the burden of proving both these elements, Brown University v. Kirsch, 757 F.2d 124 (7th Cir. 1985), and the court must resolve any reasonable doubts in the inquiry against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Mintz v. Mathers Funds, Inc., 463 F.2d 495 (7th Cir.1972). When a summary judgment motion has been supported with affidavits pursuant to Rule 56(e), the party opposing summary judgment may not merely rest upon the allegations of his complaint, but must come forward with a showing of specific facts that raise a genuine issue for trial. Linhart v. Glatfelter, 771 F.2d 1004 (7th Cir.1985); Klein v. Trustees of Indiana University, 766 F.2d 275 (7th Cir.1985); Posey v. Skyline Corp., 702 F.2d 102 (7th Cir.), cert. denied 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983).
On June 20, 1983, Ronald Zepik and his friend, Sally Adrian, went to visit Glen and Linda Davis at their home. During that visit, the Davises invited Mr. Zepik and Ms. Adrian to go swimming. Mr. and Mrs. Davis have an in-ground pool in their back-yard, which Mr. Davis constructed in the spring of 1982 with the assistance of defendant Loren's Pool & Supply, Inc. At approximately 8:45 p.m., Mr. Zepik left the pool and headed toward the Davis' house, then turned, ran toward the pool, and dived into the pool. Although no one actually saw the contact, it appears that upon entering the pool, Mr. Zepik struck his head on the bottom of the pool, as a result of which he was rendered a quadriplegic.
Mr. Davis constructed the Davis pool with the direction and assistance of personnel from Loren's Pool & Supply. All materials used in the construction were purchased from Loren's Pool. Loren's Pool & Supply did the excavation work and helped Mr. Davis install the liner. Mr. Davis performed all the other work. The completed pool is octagonal in shape, twenty-four feet in circumference, and approximately four feet deep.
To assist with construction of the pool, Loren's Pool & Supply supplied Mr. Davis with an instruction manual prepared by Pleasure Industries for use with Pleasure Industries' Vacationer Pools. The manual, entitled "Instruction Manual for Your New Vacationer Swimming Pool", contains instructions for "the proper installation of the Vacationer Pool". All of the pool designs in the instruction manual are oblong in shape and are designed to have both a shallow and deep end.
The materials used in constructing the Davis pool were not manufactured by the same source; the parties disagree as to which manufacturer provided what product. Mr. Zepik contends that the list of the products and their respective manufacturers is as follows:
(Defendant Loren's Pool and Supply, Inc., answer to interrogatories filed in Cause No. 83-PSC-3246, Porter Superior Court.)
While the parties address several different issues in the plethora of documentation which they have presented to the court, the threshold issue is whether the record before the court establishes a sufficient connection between any products manufactured or sold by Pleasure Industries and Mr. Zepik's injuries so as to subject Pleasure Industries to liability under any of the theories espoused. The element of causation is essential to Mr. Zepik's complaint.
First by case law and then by statute, Indiana adopted Section 402A of the Restatement of Torts (Second) as the law in products liability cases. Lantis v. Astec Industries, Inc., 648 F.2d 1118, 1120 (7th Cir.1981); Ayr-Way Stores, Inc. v. Chitwood, 261 Ind. 86, 300 N.E.2d 335 (1973); IND.CODE 33-1-1.5-1 et seq. One seeking recovery under Section 402A must establish the following essential elements:
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Zepik v. Tidewater Midwest, Inc.
...in two separate decisions. On April 28, 1986, the district court granted summary judgment to Pleasure in Zepik v. Ceeco Pool & Supply, Inc., 637 F.Supp. 444 (N.D.Ind.1986) ("Zepik I "). Although the district court rejected Pleasure's contention that the CPSA's private right of action does n......
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