New England Biz Law Update
The manufacturer and seller of a swimming pool could not be held liable to a plaintiff who broke her neck when she slipped and fell while attempting to dive into the pool, the 1st U.S.
Circuit Court of Appeals has found.
The defendants argued that the plaintiff assumed the risk of serious injury when she attempted the dive into water only 4 feet deep.
The 1st Circuit agreed.
“[U]nder Rhode Island law, there are certain risks that are so self-evident that a person will be deemed to have understood them as a matter of law,” Judge F. Dennis Saylor IV said for a unanimous three-judge panel. “Diving head-first into a shallow, above-ground pool is such a risk, and bars recovery here.”
The 23-page decision is Sheehan v. The North American Marketing Corporation, et al.
Barry C. Reed Jr. of Boston and David E. Maglio of Providence, R.I., represented the plaintiff. Providence attorneys John W. Kershaw and Joseph V. Cavanagh Jr. were counsel for thae
defendants.
Fractured vertebra
On the afternoon of Aug. 8, 2002, plaintiff Jennifer Sheehan and Marvin Nadiger drove to the Islander Restaurant in Warwick, R.I., where the two shared a scorpion bowl, a drink made with fruit juice and alcohol. After leaving the restaurant, they drove to the Oakland Beach Club in Warwick, where the plaintiff drank two or three 12-ounce beers and one or two shots of tequila.
They then drove to Nadiger’s home in Warwick, arriving at approximately 5:30 p.m. Not long after arriving, Nadiger, the plaintiff and Nadiger’s three children decided to go swimming in the backyard pool.
At the time, the pool was filled with about three-and-a-half feet of water. A ladder over the edge of the pool was used for entry and exit. There was no decking or other platform next to the pool.
The top perimeter of the pool was covered by a piece known as a “coping,” which was made of flat extruded aluminum with ridges or grooves on its surface. It was approximately six-and-a-half inches wide. It was not designed to be stood on or used for diving, but rather to connect the pieces of the pool wall and prevent damage to the top surface of the wall.
After playing in the pool for about 30 minutes, the plaintiff hoisted herself up into a sitting position and then to a standing position on the coping. After about 20 seconds, she performed a shallow dive, during which she intentionally aimed across the pool and not down.
The plaintiff then climbed onto the same part of the coping to attempt a second dive. After standing on the coping for about 10 seconds, she attempted to perform a shallow dive, but lost her balance and entered the pool at a steep angle, described by witnesses as a “jackknife.” The plaintiff struck her head on the bottom of the pool, which caused her to suffer a burst fracture of the C5 vertebra. The injury rendered her a quadriplegic.
The pool structure contained four “DANGER – NO DIVING – SHALLOW WATER” warnings. The plaintiff testified that she had not read the warnings, but even if she had, she would have dived anyway.
The plaintiff brought suit for negligence, strict liability, breach of express warranty and breach of implied warranty, alleging in substance that the design of the pool was defective.
The defendants were awarded summary judgment, and the plaintiff appealed.
Risk assumed
On appeal, the 1st Circuit noted that both of the plaintiff’s experts opined that she lost her balance because the coping was narrow and unstable.
“We think it is a close call whether Sheehan’s causation evidence is sufficient to survive summary judgment,” Saylor said.
Rather than deciding the difficult causation question, the court decided that Sheehan’s claim should be resolved on the basis of assumption of the risk, an affirmative defense in a products liability action in Rhode Island. In order to establish a defense under that doctrine, a defendant must prove that the plaintiff knew of the existence of the danger, appreciated its unreasonable character, and voluntarily exposed herself to it.
“The danger of diving head-first into shallow water in an above-ground swimming pool was, or should have been, obvious to a thirty-two-year-old adult woman of normal intelligence,” Saylor said.
“Sheehan knew the depth of the pool, and indeed had been in it for half an hour prior to the accident,” the judge added. “If that were not enough, there were abundant warnings against diving on and around the coping, which Sheehan testified she did not read and would have ignored had she read them.”
The plaintiff’s best argument, the court found, was that she may have assumed the risk of diving but never assumed the risk of falling from the allegedly defective coping.
“Plainly this case would look different if Sheehan had stood on the coping to dive and fallen
backwards onto the ground, or if she had stood on the coping while engaged in some activity other than diving, such as exiting the pool or cleaning it,” Saylor said. “The pool had no warning against standing on the coping — as opposed to diving or jumping from it — and the language of the warnings as given (‘NO DIVING – SHALLOW WATER’) at least suggests that the primary problem with diving is misjudging the depth of the water and not tumbling from the coping.”
The 1st Circuit nevertheless found that that summary judgment for the defendant was warranted.
“Sheehan stood on the coping in order to dive, and the injury that occurred was the same one contemplated by the multiple warnings — including on the coping itself,” Saylor said. “Under these circumstances, as a matter of law Sheehan assumed the risk of diving, including the risk that she might fall from the coping into the pool while attempting to dive.”
Drunkenness issue
The plaintiff‘s fallback position was that the lower court failed to take proper account of her intoxication in assessing her subjective knowledge of the risk of diving.
The 1st Circuit was not impressed by that line of argument.
“She has cited to no case, in Rhode Island or elsewhere, suggesting that voluntary intoxication weighs in her favor,” Saylor stated. “[E]xcuses based on drunkenness are too easy to make and too costly to permit. We see no reason to suppose that the Supreme Court of Rhode Island, if presented with the question, would depart from the standard rule in this context.”
