McClusky v. Gary Pools Sales & Services, Inc.

154 A.D.2d 924, 545 N.Y.S.2d 873, 1989 N.Y. App. Div. LEXIS 12967

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1989
• Status: Published

Opinion

Order unanimously reversed on the law without costs and appellants’ motions for summary judgment granted. Memorandum: Plaintiff was seriously injured when he slid down a slide head first into an above-ground swimming pool. Plaintiff, a 19-year-old experienced swimmer, was familiar with the pool and was aware that the water depth was 4 to 5 inches below the four-foot rim of the pool. These facts are materially indistinguishable from the facts in our recent decision in Kriz v Schum (145 AD2d 985). Special Term erred, therefore, in denying the motions of defendants Coleco Pools (Coleco) and Recreational Distributors Warehouse (RDW) Inc. for summary judgment. Further, neither Coleco nor RDW manufactured or sold the pool slide and there was no proof that either knew that a slide would be used with the pool. Therefore, there was no duty for either defendant to warn against using the slide to enter the pool (see, Denkensohn v Davenport, 144 AD2d 58). (Appeal from order of Supreme Court, Erie County, McGowan, J. — summary judgment.) Present — Denman, J. P., Green, Pine, Balio and Lawton, JJ.