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Colosimo v. May Department Store Co.

July 27, 1972; As Amended Sept. 13, 1972.

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,
v.
THE MAY DEPARTMENT STORE COMPANY, A CORPORATION, APPELLANT IN NO. 71-1492, V. MR. AND MRS. JAMES P. HUGHES AND MUSKIN MANUFACTURING COMPANY. APPEAL OF MUSKIN MANUFACTURING COMPANY, IN NO. 71-1493.



Author: Van Dusen

Before HASTIE, VAN DUSEN and ALDISERT, Circuit Judges.

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal by a manufacturer and a retailer of a pool from a judgment, 325 F. Supp. 609, against the retailer with liability over against the manufacturer for injuries sustained by minor plaintiff as a result of a dive into the pool.

The facts as established by the record indicate that a pool manufactured by the Muskin Manufacturing Co. was purchased from a division of the May Department Store Co. by defendants, Mr. and Mrs. Hughes, and assembled in their backyard. The pool was an aboveground circular unit of the type variously referred to as a wading, splashing or swimming pool. The pool was 12 feet in diameter, with three-foot high side walls, and was filled with water to a depth of less than three feet. Straddling the side of the pool was an "A" shaped ladder with one leg resting on the bottom of the pool and the other on the lawn. At the top of the ladder, approximately 38 inches above the ground and constituting its top step, was a small platform measuring approximately 18 by 14 inches. The liner of the pool was composed of a smooth, dark blue vinyl material which, according to testimony, became slippery when immersed in water.

On the first day that the pool was in use, minor plaintiff, John Colosimo, age 15, was granted permission to join several other neighborhood youths in the pool. John climbed the "A"-shaped ladder, stood on the top, and arms outstretched, dove headfirst into the pool. As a result of this dive, he sustained the injuries in dispute.

A diversity action was instituted by the minor plaintiff's parents, alleging that the pool was dangerously defective in violation of § 402A of the Restatement of Torts 2d.*fn1 It was alleged that the pool was defectively designed and unreasonably dangerous for normal use by the ultimate consumer in that the platform constituting the top of the ladder was an invitation to dive and the slippery vinyl surface would cause the outstretched hands of a diver to slide apart on impact, leaving the head unprotected.

We find that as a matter of law there was no basis for the jury's affirmative answer to question 1.*fn2 We note that a product is not dangerously defective within the meaning of § 402A "when it is safe for normal handling and consumption," § 402A Restatement of Torts 2d, comment h, and that a reasonable consumer would know that a dive into a small, above-ground backyard pool containing less than three feet of water was an abnormal use which carried with it a substantial risk of injury.*fn3 As the trial judge pointed out in his charge, the jury was required to find not only that the "defective" condition was dangerous but also that such condition was a proximate cause of the mishap.*fn4 The facts in this record make clear that the availability of the platform on top of the ladder, and the absence of warning signs concerning diving, were not a substantial factor in causing plaintiff's injuries since he was well aware of the risk of striking the bottom of the pool. Although John was only 15 years of age at the time of the accident, he had eight years of experience in swimming. He had completed four Red Cross courses covering various aspects of aquatics, including diving. He admitted that he had been instructed to check the depth of water before diving into it. Moreover just before diving into the pool, he had observed an adult apparently sitting in the pool with the water coming only to his chest and his arms resting on the rim of the pool. Thus, the approximate depth of the water, actually less than three feet, was apparent to any observer and to plaintiff in particular.

In addition, John testified that he had made shallow dives without mishap "into 3 or 4 foot [sic] of water in... [another] pool before this." He said that on this occasion he thought that he was so propelling himself that he would "just go out, you know, pretty shallow dive without touching the bottom," but misjudged his dive with the result that he struck his head and sustained serious injury. This error of judgment in the execution of a shallow dive, rather than any lack of warning or any slippery condition of the pool, was the proximate cause of this accident.*fn5

The judgment of October 26, 1970, will be reversed and the district court will be directed to enter judgment for the defendant, May Department Store Company, and the third-party defendants; each party to bear their or its own costs.

HASTIE, Circuit Judge (concurring).

I approve Judge Van Dusen's opinion and join in the decision it requires. This concurring opinion undertakes to set out an alternative basis of decision that, in my view, also is sound.

Even if there had been a jury question on the foreseeability of a danger of abnormal use of the pool by some children for diving, and sufficient evidence to permit a finding that such danger of abnormal use was a proximate cause of the accident, the plaintiff here cannot recover because, under the law of Pennsylvania, his voluntary assumption of risk is a complete defense. Bartkewich v. Billinger, 1968, 432 Pa. 351, 247 A.2d 603; see Greco v. Bucciconi Engineering Co., 3d Cir.1969, 407 F.2d 87, 92. True, the jury, answering a special interrogatory, found that, in diving into a shallow pool to his injury, the plaintiff did not assume the risk of a known danger. But, in my judgment, the undisputed evidence required a contrary finding and a consequent denial of recovery.

Judge Van Dusen has pointed out that the plaintiff's own testimony concedes his training and experience in diving, as well as swimming, and his observation of a man sitting in the pool with the water coming only to his chest. The plaintiff also admits that in these circumstances he attempted unsuccessfully to make a shallow enough dive to avoid striking the bottom. In the light of this evidence I can find no proper way to avoid the conclusion that recovery is barred by voluntary assumption of the risk of ...


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