Jonathan v. Kvaal

403 N.W.2d 256, 1987 Minn. App. LEXIS 4186

• Court: Court of Appeals of Minnesota
• Decided: March 31, 1987
• Docket: C6-86-1456
• Status: Published

Opinions

OPINION

FOLEY, Judge.

This case arises from a swimming pool accident that rendered appellant Dale Wayne Jonathan a quadriplegic. Jonathan sued the pool’s manufacturer, respondent Doughboy Recreational, asserting strict liability, negligence and breach of warranty, and the pool’s owner, respondent Daniel R. Kvaal, for negligence. Following cross-motions for summary judgment, the trial court entered judgment for Doughboy and Kvaal, finding Jonathan’s injuries “were caused exclusively by his own negligence.” Jonathan appeals. We reverse and remand for trial on all issues.

FACTS

Jonathan was one of three tenants in Kvaal’s home at the time of the accident in August 1980. The above-ground vinyl-lined swimming pool was located in Kvaal’s back yard. A portion of the shallow end of the pool had been dug into an elevation in Kvaal’s back yard, resulting in a shorter distance from ground to pool than at other points. Depth markers were placed at appropriate locations around the pool, which had a minimum depth of four feet and a maximum depth of seven feet. The pool also contained a sign warning against jumping and diving.

Jonathan used the pool on a regular basis, at least 10 times prior to the accident. Nighttime use was infrequent. Kvaal acknowledged by deposition that the pool was not directly lit at night; the only sources of illumination were a living room light that shown through a large picture window, a spotlight at the corner of the house, and a nearby street light.

Sometime in July 1980, Jonathan helped Kvaal completely dismantle, clean and reassemble the pool. Jonathan acknowledged by deposition that he was aware of the warning sign and the depth markers. He further acknowledged that he was familiar with the vinyl liner but stated that he was unaware of any dangers inherent in its use. On one occasion, Jonathan entered the pool from the roof of Kvaal’s house. Kvaal, who was not present at the time, warned Jonathan not to do this again.

Events leading up to the accident are undisputed. On the night of August 24, 1980, Jonathan and another tenant, Jeff Nash, watched a football game at Kvaal’s house. While watching the game, Jonathan consumed an unknown quantity of strong beer; he could not recall if he ate dinner. Around 10 p.m., Nash and Jonathan went to several local bars, where Jonathan continued to drink.

Nash and Jonathan then returned to Kvaal’s house, where they were joined by friends, including Kvaal. By deposition, Jonathan stated that he jogged alongside the pool and dove over the side into the shallow end, where the pool had been partially dug into the ground. His hands were the first part of his body to enter the water. When Jonathan did not surface, a friend pulled him out. Since the accident, Jonathan has been a quadriplegic.

Jonathan admitted that he was “feeling loose” when he entered the pool. He could not recall whether the garage light that normally illuminated the pool was on at the time of the accident. Although Jonathan had approximately 20 years of swimming experience, he considered himself at most a “fair swimmer” with “no formal instruction.” He had previously performed surface dives into the shallow end of the pool but denied having any expertise concerning particular types of dives or the risk of injury posed by these dives.

The record contains an uncontested affidavit by M. Alexander Gabrielsen, an expert in pool design, who stated that these types of pools create risks of injury well known in the pool industry but unknown to the general public. In entering summary judgment, the trial court essentially ignored this affidavit and concluded that Jonathan was “familiar with the pool” based on his frequent use and assistance in cleaning it, that he was “an experienced swimmer and diver” and that his injuries “were caused exclusively by his own negligence and not by any breach of duty” by Kvaal or Doughboy.

ISSUE

Did the trial court err in concluding that Jonathan’s negligence was the sole cause of his injury as a matter of law?

ANALYSIS

On appeal from a grant of summary judgment, this court’s “function is to determine whether any genuine issues of material fact exist and whether the trial court erred in its application of the law.” Poplinski v. Gislason, 397 N.W.2d 412, 413-14 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Feb. 18, 1987). If there is any doubt as to the existence of a genuine issue of material fact, that doubt must be resolved in favor of finding that a fact issue exists. Id. at 414.

In Poplinski, this court stated that “summary judgment has been described as a ‘blunt instrument’ to be employed ‘only where it is perfectly clear that no issue of fact is involved.’ ” Id. (quoting Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966)). Appellate courts do not resolve or decide issues of fact but only determine whether there are issues of fact to be tried. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn.1981). “All doubts and factual inferences must be resolved against the moving party.” Id. Summary judgment should not be granted if reasonable persons might reach different conclusions after reviewing the evidence. Anderson v. Twin City Rapid Transit Co., 250 Minn. 167, 186, 84 N.W.2d 593, 605 (1957).

Applying the foregoing rules governing summary judgment to this case, it is clear that there are triable issues of fact for resolution by a jury. This is a products liability case involving the design of an above-ground swimming pool with a vinyl lining. Other claims are also added in negligence and failure to warn, but the main thrust of this appeal and of this opinion relates to a claim of defect in the design of the swimming pool.

A court may consider affidavits on file under Minn.R.Civ.P. 56.03. In this case, the unchallenged affidavit of Gabrielsen creates a disputed issue of material fact by asserting that the design of the pool, and in particular the vinyl flooring of the pool, substantially contributed to Jonathan’s injuries:

In the instant case, a portion of the pool was dug-in encouraging head-first entries from ground level at that point. Any pronated head-first entry poses a risk of serious injury to all swimmers, which exposure was not known to the general public. This risk was not portrayed or warned against by the swimming pool industry but was well known uñthin the industry, i.e., swimming pool manufacturers, including Dough-boy, prior to August 24, 1980.

⅜ * * * * *

Prior to August 24, 1980, numerous studies had been conducted concerning aquatic safety and swimming pool design and construction. These studies were well known within the swimming pool manufacturing industry (herein “Industry”). * * * Based on the empirical results of these studies, the Industry was aware, prior to August 24, 1980, that head-first entry into above-ground swimming pools was the major cause of severe injuries arising out of pool activities. These studies substantiated that angle entries of greater than 30 degrees, coupled with a straight body alignment, caused the swimmer to interact with the bottom of the pool in a hazardous manner. The design of these pools, including the subject pool, does not safely accommodate any manner of pronated or head-first entry into the above-ground product.

* * * # * *

Any time a swimmer executes a pro-nated or head-first entry into a body of water, there is both a horizontal and vertical movement (upward) of the center of mass. * * * the more athletic an individual is, the higher and longer the trajectory through the air is likely to be. Thus, the more athletic the individual, the greater the risk of injury. This is in distinct contrast to the commonly held belief of the general public that the better shape one is in, the safer one will be in engaging in athletic activities such as swimming.

* * * The untrained swimmer with athletic ability believes that he is in control of his head-first entry. However, the law of physics and not the person control a given entry once the swimmer is airborne. These laws are not fully predicted by the individual, and when he leaves the surface and commits himself to the air, the direction, trajectory and velocity of the entry pass out of his control. To further skew the swimmer's misconception about his control is the fact that the swimmer’s water entry velocity will vary each time depending upon the height he obtains and his angle of entry into the water.

(Emphasis supplied.) Despite these unchallenged statements, the trial court ruled that Jonathan was the sole proximate cause of his injuries as a matter of law. In view of these statements causally linking admitted product defects and insufficient warnings with Jonathan’s injuries, it cannot be said that only one conclusion as to causation exists. Summary judgment on Jonathan’s strict liability count therefore was inappropriate.

Moreover, by conceding (for purposes of summary judgment) that defects in the design of the pool existed and that its warnings were insufficient, Doughboy has acknowledged the existence of a duty owed to Jonathan and a breach of that duty. This is relevant in assessing Jonathan’s negligence claim against Doughboy. A plaintiff need only demonstrate a “plausible causal linkage” between a breach of duty and his or her injuries to allow a claim of negligence to be presented to a jury. Moe v. Springfield Milling Corp., 394 N.W.2d 582, 585-86 (Minn.Ct.App.1986), pet. for rev. denied, (Minn. Dec. 17, 1986).

The trial court and now the dissents rely on McCormick v. Custom Pools, Inc., 376 N.W.2d 471 (Minn.Ct.App.1985), pet. for rev. denied, (Minn. Dec. 30, 1985). This reliance is misplaced. To rely on McCormick is to rely on Magnuson v. Rupp Manufacturing, Inc., 285 Minn. 32, 171 N.W.2d 201 (1969), for the rule that if one is aware of the danger in the use of the product, there is no liability. Neither McCormick nor Magnuson is applicable here (although each included a claim of defect in design), and both cases are distinguishable in light of Holm v. Sponco Manufacturing, Inc., 324 N.W.2d 207 (Minn.1982).¹

The plaintiff in Holm, an experienced electrician’s assistant, stipulated that danger of electrocution from contact with a high voltage wire was obvious, that he in fact knew of this danger based on prior experience and that he was familiar with the warning decals on the machine warning against the specific hazard that caused the injury. The court nevertheless reversed a grant of summary judgment to the manufacturer and held that the plaintiff could proceed to trial on both his strict liability and negligence claims.

In Holm, the Minnesota Supreme Court very carefully reviewed the development of the doctrine of obviousness of product dangers as a bar to recovery. In particular, the court reviewed the case of Halvorson v. American Hoist & Derrick Co., 307 Minn. 48, 240 N.W.2d 303 (1976), where the supreme court “appeared to have adopted the latent-patent danger rule which relieves a manufacturer from liability if the dangers of his product are obvious to the user.” Holm, 324 N.W.2d at 209-10.

The court rejected the latent-patent defect rule set out in Halvorson and adopted the “reasonable care test’ lowed in New York and Florida. This current trend in products liability as summarized by the Florida Supreme Court is quoted as follows: fol-

The modern trend in the nation is to abandon the strict patent danger doctrine as an exception to liability and to find that the obviousness of the defect is only a factor to be considered as a mitigating defense in determining whether a defect is unreasonably dangerous and whether plaintiff used that degree of reasonable care required by the circumstances.

Holm, 324 N.W.2d 211 (quoting Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167, 1169 (Fla.1979)) (emphasis supplied).

A manufacturer in Minnesota is no longer relieved of liability under the latent-patent defect rule simply because dangers associated with the product are obvious to the user. In its place the supreme court substituted a balancing test in the “same manner that the courts of New York and Florida have done.” Holm, 324 N.W.2d at 213. Such a test is set out by the New York Court of Appeals as follows:

[A] manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonable foreseeable use.

What constitutes “reasonable care” will, of course, vary with the surrounding circumstances and will involve “a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.

Holm, 324 N.W.2d at 212 (quoting Micallef v. Miehle Co., 39 N.Y.2d 376, 385-86, 384 N.Y.S.2d 115, 120-21, 348 N.E.2d 571, 577-78 (1976) (citations omitted)).

Of even more significance to this case is Holm’s reliance on Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190 (1976), decided a week before Halvorson. In Ferguson, a teen-aged boy was severely injured when he accidentally contacted an 8,000 volt uninsulated electrical transmission line while trimming a tree. The court refused to bar recovery in absence of proof that the plaintiff was negligent in the face of a known danger. Thus, in Ferguson, “while the danger was obvious, the extent of danger was not.” Holm, 324 N.W.2d at 210 (emphasis in original).

That is the key here — Jonathan’s knowledge of the extent of danger in use of the pool. The dissents do not recognize that in adopting a reasonable care standard the supreme court minimizes the significance of obviousness of danger to but a factor in determining liability. Because the dissents place such emphasis on McCormick, we distinguish that case on the facts, quite apart from the controlling law of Holm.

In McCormick, the plaintiff was an “experienced” swimmer by his own admission. Here, Jonathan considered himself at most a “fair swimmer” with “no formal instruction”. Further, in McCormick, the plaintiff knew that a “body surface dive” was necessary in view of the height of his entry and depth of the water in the pool; by implication, he knew that failure to perform the dive in this manner could result in injury. Thus, the manufacturer’s alleged failure to warn the plaintiff in McCormick of the dangers he already knew could not have been the proximate cause of the injury-

Moreover, in contrast to McCormick, the swimming pool at issue here was an above-ground variety. According to Gabrielsen, the general public was unaware that pro-nated head-first diving in above-ground pools posed a risk of serious injury. Unlike the plaintiff in McCormick, Jonathan stated that he was unaware that he was risking serious injury by entering the pool from ground level as he did the night of the accident:

I had no idea [at the time of the accident] that I could be hurt in any way using that pool. I also had no idea that there was any risk in using that pool * * * and I had no idea that there was any risk of any kind entering the pool that way. Because of the accident I became a quadriplegic and at that time there was no conception in my mind that this could possibly happen * * *.

(Emphasis supplied.)

Jonathan’s awareness of the alleged design defects in this case, notably the vinyl liner, is glossed over by the dissents in an apparent attempt to fit the issue neatly within the confines of McCormick. This ignores Jonathan’s lack of knowledge as to the extent of danger. This view also ignores Gabrielsen’s statements regarding the dangers associated with diving into a pool with a vinyl liner, dangers which were known by the swimming pool industry, but not by the general public.

Under normal circumstances, a swimmer executing a head-first entry into water of limited depth is afforded some protection against serious spinal injuries because his outstretched hands and arms will make contact with the bottom and redirect his trajectory due to the presence of friction so as to minimize or avoid contact with the bottom. The coefficient of friction of the [pool] manufactured by defendant Doughboy was inadequate to provide sufficient protection against sliding, and [this inadequacy] was known to the Industry prior to August 24, 1980.

The dissents apparently conclude or at least imply that since Jonathan was aware of the existence of the vinyl liner, by virtue of his prior use of the pool and his participation in dismantling and reassembly of the pool, he was also aware of the danger occasioned by use of this liner. This analysis is flawed, for “[p]ast experience with a product, * * * does not necessarily alert users to all of the dangers associated with the product.” Willmar Poultry Co. v. Carus Chemical Co., 378 N.W.2d 830, 835 (Minn.Ct.App.1985), pet. for rev. denied, (Minn. Feb. 14 and 19, 1986) (knowledge of some of the risks involved with fumigation based on previous experiences did not extend to large scale fumigations and “at least raised a question of fact for the jury to determine’’). Here, Jonathan’s knowledge as to the extent of the danger in using the pool is a fact issue for the jury. Here, our analysis is not limited to questions of breach of duty only but involve, as well, issues of causation, for liability does not arise unless and until there is a breach of duty that is a direct cause of injury. These are triable issues of fact not to be resolved by summary judgment.

The dissents’ reasoning is troublesome in another respect. The level of Jonathan’s intoxication on the night of the accident also relates to causation. Whether or not his condition contributed to his injuries and to what extent is an issue for the trier of fact and ultimately a factor to be considered in - assessing comparative fault. See Minn.Stat. § 604.01 (1980). Again, to suggest otherwise is to ignore comparative fault, and our task in reviewing summary judgment is to determine if there are triable issues of fact, not to resolve them.

Genuine issues of material fact also exist with regard to allegations of negligence and causation on the part of Kvaal. Of particular importance is the allegation that Kvaal failed to adequately light the pool on the night of the accident. As stated by Gabrielsen:

The difficulties in assessing where you are in space and in a swimming pool (by the swimmer) are substantially increased when the lighting is inadequate. Accordingly, it is unreasonable for an owner of a swimming pool to encourage individuals to use the swimming pool at nighttime without adequate artificial illumination directly on the pool area. This inadequate illumination makes it more difficult for the entrant to discern the approaching bottom of the pool. In the instant case the home owner did not provide adequate illumination.

(Emphasis supplied.) This issue is also for the jury to decide.

Finally, resolution of all issues against the manufacturer, the property owner and the injured party will “depend largely on the scope of evidence admitted by the trial court and on the jury instructions given under each theory.” Bilotta v. Kelley Company, Inc., 346 N.W.2d 616, 622 (Minn.1984). See Mix v. MTD Products, Inc., 393 N.W.2d 18, 20 n. 2 (Minn.Ct.App.1986).

DECISION

It was error to grant summary judgment. Judgment is reversed and the case remanded for trial on all issues against Doughboy and Kvaal.

Reversed and remanded.

1 . Decision was reached in McCormick by this court without reference to Holm. Dissents were filed by Judges Crippen and Parker, who concluded that summary judgment was inappropriate because the record contained an affidavit of an expert which created fact issues regarding the cause of the injuries. McCormick, 376 N.W.2d at 478-79.