# McCormick v. Custom Pools, Inc. > Court of Appeals of Minnesota · November 5, 1985 · 376 N.W.2d 471 URL: https://www.frixlaw.com/law-library/cases/9883921 ## Case - **Full name:** Larry McCORMICK, Appellant, v. CUSTOM POOLS, INC., Clayton and Lambert Manufacturing Company, Respondents - **Court:** Court of Appeals of Minnesota - **Decided:** November 5, 1985 - **Citations:** 376 N.W.2d 471; 1985 Minn. App. LEXIS 4779 - **Precedential status:** Published - **Opinion:** Dissent by Crippen - **Judges:** Heard - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9883921 ## How later opinions describe it (automated extraction) - holding that where additional discovery sought in a products-liability case addressed product’s defects and for purposes of summary judgment district court assumed all defects alleged, additional discovery would not have aided district court in causation determination ## Opinion text *478 CRIPPEN, Judge (dissenting). I respectfully dissent. As stated in the majority opinion, appellant McCormick supported his complaint with an affidavit from an engineer who is an expert on design and safety of swimming pools. The expert’s statements raise a genuine issue of material fact regarding the cause of appellant’s injuries. First, the affidavit details design techniques available to reduce hazards of devastating injuries and states that it was economically feasible for C & L and Custom Pools to employ some of these accident prevention methods in the design of the pool. Second, and more importantly, the expert’s affidavit contrasts the need for potent warnings about shallow diving with the approach of these suppliers and others who insistently promote diving activity as part of the use of “colorful” backyard pools. The engineer’s affidavit states: Their failure to prevent any shallow water diving whatsoever was unscrupulous. Design and engineering of this swimming pool does not allow for any safe shallow water diving. * ⅝ SjS ⅜! * ⅜ Most bathers have seen hundreds of dives into shallow water and believe that it is safe activity. * * ⅜ * * [Pjool manufacturers and installers have studies, and have sophisticated knowledge regarding the dangerous propensities of diving into the shallow end of a pool. The general public is not aware of this empirical data and its conclusions. * * * [Tjhere is a great disparity between the sophisticated knowledge of the profit-oriented manufacturer and installer, and the ignorance of the pool user who has not studied the subject. The majority concludes that McCormick was sufficiently aware of the risks involved in shallow diving and of the alleged defects such that no genuine issue existed regarding his awareness. To the contrary, the expert’s evidence shows an issue here regarding the extraordinary dangers of shallow diving, and it would support a finding that the pool equipment was unreasonably dangerous for use by any swimmer who does not know of this high degree of danger and who is not emphatically discouraged from shallow diving by the manufacturer and installer of the equipment. Evidence on the fault of respondents is similar in nature and at least as serious as the fault discussed in Corbin v. Coleco Industries, Inc., 748 F.2d 411 (7th Cir. 1984). As the court in Corbin stated, the crucial point made in this [the expert’s] testimony is 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. If people do in fact generally hold such a belief, then it cannot be said, as a matter of law, that the risk of spinal injury from diving into shallow water is open and obvious. Corbin, 748 F.2d at 417 . A “plaintiff must not be aware of the defect in order to recover.” Magnuson v. Rupp Manufacturing, Inc., 285 Minn. 32, 40 , 171 N.W.2d 201, 207 (1969). When employing this rule of law, particularly extreme hazards must not be construed as being the type of less serious dangers that are understood by most users. Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727, 747 (Minn.), cert. denied sub nom. Riegel Textile Corporation v. Gryc, 449 U.S. 921 , 101 S.Ct. 320 , 66 L.Ed.2d 149 (1980). In Gryc, the Minnesota Supreme Court distinguished the generally recognized flammability of a garment from extremely flammable characteristics. Gryc, 297 N.W.2d at 741 . The Corbin decision is an important application of this logical view of the law. The evidence that the consuming public is not aware of the extremely high risks involved in shallow diving, because they do not have before them the weighty evidence on the danger, precludes determination of the issue as a matter of law. There is a *479 genuine issue whether the causative impact of respondent’s fault, as indicated by appellant’s expert, was great enough to permit recovery of a more experienced swimmer who was nevertheless vulnerable to lack of sophisticated information, general public misperceptions, and the unwillingness of the manufacturers and suppliers to properly inform users or the public about the treacherous dangers in shallow diving. A contrary result is not dictated by Colo-simo, decided in 1972 over the dissent of Circuit Judge Aldisert. Colosimo v. May Department Store Company, 466 F.2d 1234 (3d Cir.1972). The dissenter’s view on causation is convincing. Colosimo did not attempt to make a shallow dive, but dove headfirst into less than three feet of water. Id. at 1235-36. He had been instructed to check the depth of water before diving into it. Id. at 1235. Moreover, that case did not involve 1985 evidence on the dangers of shallow diving, or the accumulated evidence on the industry response to that danger. The strict liability issue in this case is one for the jury to decide. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9883921. Public record. Not legal advice.