Belling v. Haugh's Pools, Ltd.

Order reversed, on the law, without costs, and defendants’ motions for summary judgment granted. Memorandum: Plaintiff sustained serious injuries when he dove through an inner tube floating in the four-foot, above-ground swimming pool in a friend’s yard. Plaintiff, who was 33 years old, 6-feet, 1-inch tall and 215 pounds at the time, was an experienced swimmer and familiar with above-ground pools including the pool in question, having been swimming in it for several hours on the day the accident occurred. Indeed, he had assisted the owner of the pool in its installation. He commenced this action on several theories of liability, principally products liability, claiming that defendants as the manufacturer and retailer failed to give adequate warnings of the dangers inherent in diving into a four-foot pool. Defendants moved for summary judgment arguing that plaintiff has offered no evidence that the pool was defectively designed or manufactured; that plaintiff was completely familiar with the pool; and that the proximate cause of the injury was plaintiff’s own conduct in diving into water which was too shallow for him. The court denied the motion.

*959 A manufacturer will be held liable under a theory of strict products liability where the product is defective and the defect may include a mistake in manufacturing, an improper design or the absence or inadequacy of warnings (Sukljian v Ross & Son Co., 69 NY2d 89 ; Robinson v Reed-Prentice Div., 49 NY2d 471, 478-479 ). Plaintiff must establish, of course, that the failure to warn was a proximate cause of the injury, i.e., “a substantial cause of the events which produced the injury” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ). Accordingly, there is no liability for failing to warn of obvious dangers, those that would be appreciated by the user to the same extent the warning would have provided (Prosser and Keeton, Torts, at 686 [5th ed]; see, e.g., Smith v Stark, 67 NY2d 693 [holding that plaintiff’s injury was proximately caused by his own conduct in diving into shallow water and not by defendant’s failure to provide depth markers]).

Other jurisdictions have addressed the proximate cause issue raised herein and have concluded that the manufacturer cannot be liable because "a warning would have merely informed him [plaintiff] of risks of which he was already aware” (McCormick v Custom Pools, 376 NW2d 471, 476 [Minn]; see also, Hensley v Muskin Corp., 65 Mich App 662 , 230 NW2d 362 ; Benjamin v Deffet Rentals, 66 Oh St 2d 86, 419 NE2d 883 ; Colosimo v May Dept. Store Co., 466 F2d 1234; see generally, Ann., 6 ALR4th 492).

Corbin v Coleco Indus. (748 F2d 411), cited by the dissenter, is factually distinguishable. In Corbin (pp 417-418), the court noted that "even though people are generally aware of the danger of diving into shallow water, they believe that there is a safe way to do it, namely, by executing a flat, shallow dive” and thus whether the danger of attempting a flat, shallow dive was obvious was a question of fact. The court implicitly agreed that vertical dives, such as the one attempted by plaintiff herein, into four feet of water involved an open and obvious risk.

Although proximate cause is usually a question for the jury, where only one conclusion may be drawn from established facts, "the question of legal cause may be decided as a matter of law” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 , supra). This is such a case.

All concur, except Green, J., who dissents and votes to affirm, in the following memorandum.