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COLOSIMO v. MAY DEPT. STORE CO.

April 2, 1971

Joseph COLOSIMO and Lorraine Colosimo, parents and natural guardians of John A. Colosimo, a minor, and Joseph Colosimo and Lorraine Colosimo, in their own right, Plaintiffs,
v.
The MAY DEPARTMENT STORE COMPANY, a corporation, Defendant and Third-Party Plaintiff, v. Mr. and Mrs. James P. HUGHES and Muskin Manufacturing Company, Third-Party Defendants


Sorg, District Judge.


The opinion of the court was delivered by: SORG

SORG, District Judge.

 John Colosimo -- age 15 years, height 5 feet 6 inches, weight 140 pounds -- was invited, on July 21, 1965, by neighbors, Mr. and Mrs. James Hughes, to swim in an above-the-ground vinyl-lined family pool which they had just assembled in their back yard. The pool was 12 feet in diameter and 36 inches in height. An A-ladder type arrangement 38 inches high with an 18 inch by 14 inch platform on top straddled the side of the pool to facilitate entry and departure. John approached the pool, ascended the ladder, assumed a position on the platform with hands extended in front of him and dived head first into the water. As he struck bottom his hands slipped from under him causing his head to contact the floor of the pool with sufficient force to bring about serious injuries to his cervical spine.

 A short time before, Mrs. Hughes, attracted by a newspaper ad, had visited the toy department of Kaufmann's, a branch of the defendant May Department Store Company, (May Company) in Pittsburgh, Pa., observed an assembled family pool unit as pictured in the ad, and signed a purchase order. The pool was delivered by Kaufman's warehouse to the Hughes residence in the original cartons shipped to it by Muskin Manufacturing Company (Muskin), producer. It was assembled by Mr. and Mrs. Hughes according to the instructions which accompanied the packages, and filled with water on the day of John Colosimo's accident.

 This action to recover damages arising from personal injuries was brought by John Colosimo and his parents against May Company, seller of the pool, on the theory of product liability set forth in Section 402(A) of the Restatement of Torts (2d), as follows:

 
"One who sells any product in a defective condition unreasonably dangerous to the user or consumer * * * is subject to liability for physical harm thereby caused to the ultimate user or consumer * * *, if
 
(a) the seller is engaged in the business of selling such a product, and
 
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold."

 May Company filed a third-party complaint for indemnity against its supplier, Muskin, and against Mr. and Mrs. Hughes for contribution by reason of alleged negligence on their part. Upon trial of the issue of liability only a jury returned the following answers to interrogatories:

 
"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?
 
Answer YES or NO (YES)
 
2. Were John Colosimo's injuries sustained as a result of his having assumed the risk of a known danger?
 
Answer YES or NO (NO)
 
3. Did The May Department Store Company purchase the pool from Muskin Manufacturing Company in the same condition in which it was sold by The May ...

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