McCormick v. Custom Pools, Inc.

376 N.W.2d 471, 1985 Minn. App. LEXIS 4779
CourtCourt of Appeals of Minnesota
DecidedNovember 5, 1985
DocketCX-85-784
StatusPublished
Cited by26 cases

This text of 376 N.W.2d 471 (McCormick v. Custom Pools, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCormick v. Custom Pools, Inc., 376 N.W.2d 471, 1985 Minn. App. LEXIS 4779 (Mich. Ct. App. 1985).

Opinions

OPINION

HUSPENI, Judge.

Appellant Larry McCormick brought this product liability action against Respondent Clayton and Lambert Manufacturing Company (C & L) and Respondent Custom Pools, Inc. (Custom Pools) to recover for the injuries he sustained when he dove into a swimming pool and struck his head on the bottom of the pool. The trial court awarded summary judgment against McCormick and in favor of C & L and Custom Pools. McCormick appeals from that summary judgment. We affirm.

FACTS

On August 22, 1981, Larry McCormick was rendered quadriplegic when he dove into the shallow end of his friend’s swimming pool and struck his head on the bottom. The injury occurred sometime after six o’clock when it was still daylight.

McCormick considered himself an experienced swimmer. He was familiar with his friend’s pool. He had used it approximately ten times during the summer of 1981, both during the day and the evening, and he was in and out of the pool a number of times throughout the afternoon of August 22, 1981. In his deposition, McCormick explained his prior use of the pool as follows:

HENRY COUSINEAU [Attorney for C & L]: During the times that you used the pool before the accident * * *, did you do any diving?
MCCORMICK: Yes.
[473]*473COUSINEAU: Did you dive just from the board, or did you dive from the sides of the pool?
MCCORMICK: Both.
* * * ⅜ m *
COUSINEAU: * * * Do you have any opinion as to how many times you had actually dived from the shallow end of the pool before this accident on all occasions * * * ?
⅜ ⅜ * !⅜ * *
MCCORMICK: I’ve done it a lot. I have no idea how many times. Everybody did it, even my son had done it before. But approximately how many times, I couldn’t tell you how many times.

The pool had a blue interior liner and a nylon rope which divided the deep and shallow ends of the pool. McCormick knew the depth of the water where he dived in. He was also aware that the shallow end of the pool was level up to the nylon rope which divided the deep and shallow ends.

McCormick described his actions in his deposition as follows:

COUSINEAU: Now you’ve indicated that you were obviously aware that this was the shallow end, and that it was your intent to dive in the shallow end; is that right?
MCCORMICK: Yes.
COUSINEAU: And did you intend to dive, make a shallow dive?
MCCORMICK: Make a — what do they call it? * * ⅜
COUSINEAU: Is it a surface dive?
MCCORMICK: Body surf dive, I guess. I don’t know what the heck they call it. COUSINEAU: That was your intent?
* * * * * *
MCCORMICK: To dive and go into the deep end and then come out and help [my friend] * ⅜ *.
* ⅜ * 5⅛ ⅝ ⅜
COUSINEAU: And swim under the rope; would that be correct? MCCORMICK: (Nodding.)
COUSINEAU: And come out the deep end?
MCCORMICK: Yep.
COUSINEAU: And this is the same type of dive that you had done on many prior occasions; is that correct?
MCCORMICK: Yes.

McCormick commenced this action against C & L and Custom Pools, alleging negligence, breach of warranty and strict liability. C & L designed and manufactured the pool components and published assembly and installation instructions. Custom Pools sold the pool to McCormick’s friend and installed it at the friend’s residence.

In opposition to C & L’s and Custom Pools’ motion for summary judgment, McCormick submitted the lengthy affidavit of Milton Costello, an engineer and an expert in swimming pool design and safety, who had examined the pool. At the conclusion of his affidavit, Costello summarized his position, in pertinent part, as follows:

A. Subject swimming pool was unsafe for any SHALLOW WATER DIVING whatsoever, and same should have been positively and effectively prohibited by the manufacturer and installer.
B. An extreme hazard exists with respect to diving into shallow water. The hazard is not obvious to the casual bather, and is more pronounced under certain conditions due to the pool construction. Most bathers have seen hundreds of dives into shallow water and believe that it is a safe activity.***
Effective and meaningful warning signs, in order to modify the behavior of “shallow water” divers, should have been furnished and installed by the installer and pool manufacturer, to prevent shallow water dives.
C. The pool interior was not effectively delineated with respect to the shallow and the deep ends. There was a lack of adequate and effective depth markings on the deck, depth markings at the pool interior, and interior markings (such as a striped line to indicate the [474]*474shallow water from the deep water).***
D. Coupled with failure to delineate depth is the use of a flat-bottom shallow end. This is uniquely different construction from what would be normal experience with swimming pools in the public and private realm. * * * Zero slope is a distinct hazard in terms of anticipated bather expectation, impact degree and sliding safety upon mild impact with the bottom.
E. The interior pool shell is ill-defined in terms of task acuity. Safe entry and use of the pool requires information as to the irregular configuration of the interior both at the deep and at the shallow ends. Contrasting colored indicators, when placed on a white pool interior for maximum visibility with markings — such as dots, stripes, lines, bars, seam lines, or other visual methods for the bather to identify changes in the interior of the pool shell, were not installed, or made obvious to the unsuspecting bather in avoiding injury.
F. There was a failure by CUSTOM POOLS, INC. & CLAYTON & LAMBERT MANUFACTURING CO., to transmit adequate and concise information, of sufficient clarity and emphasis to convey to owners and potential users fundamental safety use and design information warning against use of their inherently dangerous facility for shallow water diving.

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Bluebook (online)
376 N.W.2d 471, 1985 Minn. App. LEXIS 4779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccormick-v-custom-pools-inc-minnctapp-1985.