Colosimo v. May Department Store Co.

466 F.2d 1234, 1972 U.S. App. LEXIS 8192

• Court: Court of Appeals for the Third Circuit
• Decided: July 27, 1972
• Docket: Nos. 71-1492, 71-1493
• Status: Published

Opinions

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal by a manufacturer and a retailer of a pool from a judgment, D.C., 325 F.Supp. 609, against the retailer with liability over against the manufacturer for injuries sustained by minor plaintiff as a result of a dive into the pool.

The facts as established by the record indicate that a pool manufactured by the Muskin Manufacturing Co. was purchased from a division of the May Department Store Co. by defendants, Mr. and Mrs. Hughes, and assembled in their backyard. The pool was an above-ground circular unit of the type variously referred to as a wading, splashing or swimming pool. The pool was 12 feet in diameter, with three-foot high side walls, and was filled with water to a depth of less than three feet. Straddling the side of the pool was an “A” shaped ladder with one leg resting on the bottom of the pool and the other on the lawn. At the top of the ladder, approximately 38 inches above the ground and constituting its top step, was a small platform measuring approximately 18 by 14 inches. The liner of the pool was composed of a smooth, dark blue vinyl material which, according to testimony, became slippery when immersed in water.

On the first day that the pool was in use, minor plaintiff, John Colosimo, age 15, was granted permission to join several other neighborhood youths in the pool. John climbed the “A”-shaped ladder, stood on the top, and arms outstretched, dove headfirst into the pool. As a result of this dive, he sustained the injuries in dispute.

A diversity action was instituted by the minor plaintiff’s parents, alleging that the pool was dangerously defective in violation of § 402A of the Restatement of Torts 2d.¹ It was alleged that the pool was defectively designed and unreasonably dangerous for normal use by the ultimate consumer in that the platform constituting the top of the ladder was an invitation to dive and the slippery vinyl surface would cause the outstretched hands of a diver to slide apart on impact, leaving the head unprotected.

We find that as a matter of law there was no basis for the jury’s affirmative answer to question l.² We note that a product is not dangerously defective within the meaning of § 402A “when it is safe for normal handling and consumption,” § 402A Restatement of Torts 2d, comment h, and that a reasonable consumer would know that a dive into a small, above-ground backyard pool containing less than three feet of water was an abnormal use which carried with it a substantial risk of injury.³ As the trial judge pointed out in his charge, the jury was required to find not only that the “defective” condition was dangerous but also that such condition was a proximate cause of the mishap.⁴ The facts in this record make clear that the availability of the platform on top of the ladder, and the absence of warning signs concerning diving, were not a substantial factor in causing plaintiff’s injuries since he was well aware of the risk of striking the bottom of the pool. Although John was only 15 years of age at the time of the accident, he had eight years of experience in swimming. He had completed four Red Cross courses covering various aspects of aquatics, including diving. He admitted that he had been instructed to check the depth of water before diving into it. Moreover just before diving into the pool, he had observed an adult apparently sitting in the pool with the water coming only to his chest and his arms resting on the rim of the pool. Thus, the approximate depth of the water, actually less than three feet, was apparent to any observer and to plaintiff in particular.

In addition, John testified that he had made shallow dives without mishap “into 3 or 4 foot [sic] of water in . . . [another] pool before this.” He said that on this occasion he thought that he was so propelling himself that he would “just go out, you know, pretty shallow dive without touching the bottom,” but misjudged his dive- with the result that he struck his head and sustained serious injury. This error of judgment in the execution of a shallow dive, rather than any lack of warning or any slippery condition of the pool, was the proximate cause of this accident.⁵

The judgment of October 26, 1970, will be reversed and the district court will be directed to enter judgment for the defendant, May Department Store Company, and the third-party defendants; each party to bear their or its own costs.

1 . Section 402A was adopted as the law of Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

2 . The court submitted four interrogatories to the jury, the first two of which read as follows:

“1. Were the injuries which were sustained by John Colosimo on July 21, 1965, caused by a defective condition of the pool unreasonably dangerous to John Colosimo at the time he dived into it?

“2. Were John Colosimo’s injuries sustained as a result of his having assumed the risk of a known danger?”

3 . See Speyer v. Humble Oil & Refining Co., 403 F.2d 766, 772 n. 16 (3d Cir.); cert. denied, 394 U.S. 1015, 89 S.Ct. 1634, 23 L.Ed. 41 (1968) ; Prosser, The Pall of the Citadel, 50 Minn.L.Rev. 791 (1966) ; Prumer and Priedman, Products Liability, § 15,351 (1971 rev.). Cf. Mannsz v. Macwhyte Co., 155 F.2d 445 (3d Cir. 1968).

4 . Comment d of Section 402A states that the rule of that Section applies “to products which, if they are defective, may be expected to and do cause” harm. See Prumer and Priedman, Products Liability, § 11.02, Proximate or Legal Cause (1971 rev.), and cases cited; Restatement of Torts (2d), Chapter 16,. Topic. 1.

5 . It is noted that the trial judge submitted to the jury two possible defective and unreasonably dangerous conditions : (1) that a user would dive into the water from the ladder in such a way that the slippery condition of the bottom of the pool presented an unreasonable hazard if the diver struck the bottom, and (2) that the ladder and pool assembly were dangerously defective due to absence of adequate warning signs or notice to the user that it was not to be used for diving purposes. In finding the pool defective, the jury might have found that the ladder and pool assembly was defective in the second respect only. Yet in submitting the matter to the jury, the judge did not explain that if the jurors found the pool dangerously defective solely because of (2) above, the record required the jurors to find that the plaintiff had assumed that risk. Under such circumstances, even if other considerations did not require an outright reversal, the record would require a new trial on the issue of assumption of risk. Cf. Elder v. Crawley Book Machinery Co., 441 F.2d 771, 773 (3d Cir. 1971).