N.J. Court Sidesteps Rule On Home Pool Owners Duty to Warn

By Mary P. Gallagher
The Legal Intelligencer

Rather than let a hard case make bad law, a split Supreme Court stuck to the facts last Monday, ruling that homeowners had no duty to warn a guest about the risks of diving into a backyard swimming pool he admitted using frequently and knowing of its deep and shallow areas.

The court held that the limited duty of hosts to warn social guests of dangerous conditions on their property did not extend to Paul Tighe, who broke his neck on Aug. 16, 1996, when he dove into his sister-in-law's Sicklerville pool, misjudged the slope and struck his head on the bottom.

"It defies notions of reasonableness to regard plaintiff as being unaware of [sic] slope of the pool bottom, or to conclude he could not reasonably have detected it from his use of the pool that day and on the many occasions before," the 4-3 majority ruled per curiam in Tighe v. Peterson, A-103-2001.

Tighe, who became a paraplegic in the accident, admitted in a deposition that he had used the pool on about 20 prior occasions, that he knew the deep end from the shallow and that he was aware it was risky to dive into the shallow part. "Well, I know it's not right to dive into the shallow end of a pool, I mean it was common sense," he stated.
Tighe, then 29, testified that he was "horsing around" at the time.

Affirming dismissal of the suit on summary judgment, the majority declined to lay down a bright-line rule that swimming pool owners have a duty to protect guests by marking off changes in pool depth in order to protect divers from injury.

The majority also noted the absence of "any evidence that defendants encouraged a dangerous use of this pool."

Dissenting Justices Virginia Long, James Zazzali and Barry Albin, on the other hand, found that the risk of harm was so great and the effort needed to protect against the harm - painting depth marks or "no diving" signs - was so minor that "notions of basic fairness impose a duty on pool owners to take such protective measures."

Whether Tighe's own conduct should bar or limit his recovery was a question that should be left to a jury, wrote Long for the dissenters.

The court embraced the reasoning of Appellate Division Judge Michael King, who authored the opinion below. King relied on Restatement of Torts 2d, Section 342, which the Supreme Court adopted in Berger v. Shapiro, 30 N.J. 89 (1959). That section makes landowners liable for known dangerous conditions only where the injured persons "do not know or have reason to know of the condition and the risk involved."

King, joined by Judge Mary Cuff, wrote, "This was not a case where plaintiff was unaware of an obscure peril."

He also distinguished the most recent precedent on the liability of social hosts for swimming pool injuries, Vallillo v. Muskin, 218 N.J. Super. 472 (1987), which found a jury issue on liability. The swimming pool owner in Vallillo not only encouraged diving into an above-ground pool that was only four-feet deep, but built a deck for diving that covered up a sign on the side of the pool that warned against diving, King pointed out.

In Tighe, defendant Theodore Peterson, whose wife, Deborah, was Tighe's sister-in-law, had installed the in-ground pool eight years earlier, using a pool kit. The 16-by-32-foot pool ranged from three feet at the shallow end to seven and one half feet at the deep end.

There were no depth markers, no rope separating the deep and shallow portions or anything else indicating the depth of the water or cautioning against diving. Peterson testified at deposition that the kit came with no markers.

Last week's split in the court mirrored that of the appeals court below, where Judge Barbara Byrd Wecker dissented from the 2-1 ruling. Wecker stated, "I would allow a jury to determine whether defendants failed to exercise reasonable care when they built a pool without any depth or slope markers, and if so, whether that condition was a proximate cause of plaintiff's injury." Long followed that rationale in her dissent last week.

Tighe's complaint also listed the maker and seller of the pool kit as John Doe defendants, but Peterson was not able to identify them and they never became part of the case.

Though diving accidents are far less frequent than auto accidents, they tend to generate million-dollar recoveries because they result in death or permanent incapacitating injury, like quadriplegia or paraplegia.

For example, earlier this year, an Ocean County case by the family of a 12-year-old boy injured diving into a pool at a church-run social at a private home, settled for $3 million. (Gaudenzi v. Doucette, L-974-98.)

In 1996, the Appellate Division upheld an $8.7 million award to a 21-year-old athlete rendered a quadriplegic by diving. (Kleban v. Heldor, A-923094T2.)

Tighe has regained some use of his limbs because he did not sever his spine and received prompt, effective treatment, says his attorney, Louis Cappelli Jr.

A homeowner, like Peterson, who also installs a pool has an "absolute duty to all who swim in the pool," said Cappelli, a solo practitioner. "Where [Camden County] Judge [John] Mariano erred was in finding my client contributorily negligent," he added.

This article originally appeared in the New Jersey Law Journal, a publication of American Lawyer Media.

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