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Cook County, Illinois

This action involved a 22-year-old plaintiff who visited a home containing a built-in pool, and who dove from one end, believing it was deep when the pool was designed in such a manner that either end was shallow and the middle was deep. The plaintiff contended that the pool was defectively designed and installed and that there was an absence of warning signs on the deck. The incident occurred after the plaintiff and a group of friends went to the homeowner’s house after closing time at a tavern. The plaintiff had also named the homeowner as a defendant and this aspect settled prior to trial for an undisclosed sum. Under Illinois law, the jury does not make an apportionment for the potential liability of a settling defendant and the defendants held liable are entitled to a credit for the amount of the settlement.

After closing a 4:00 a.m. tavern, the plaintiff and a number of acquaintances were invited by a female friend to a house with an in-ground pool. The plaintiff had never been to the house before and was unfamiliar with the pool. The pool had two shallow ends and a deep middle. The plaintiff contended that he assumed the pool was a typical shallow end/deep end configuration.

The evidence disclosed that that the plaintiff initially went into the pool at the south shallow end which had steps and railings into the pool. Walking around the south end, he felt the slope of the bottom of the pool going downwards toward the north end and saw what he thought to be a deep end ladder at the other end. He got out of the south end of the pool, and walked two- thirds of the way towards the north end. He then dove toward the north end which he believed to be the deep end, but which actually had about three and a-half feet of water, suffering the injury.

The plaintiff contended that the design and installation of the pool was defective. The plaintiff maintained that the design in which the middle was deep and either end shallow was unusual and the need for warnings on the deck itself was particularly great. The defendant contended that the pool should be considered as an improvement to real estate and not a product, arguing that as such, principles of negligence, rather than strict liability should apply. The defendant argued that under such theory, the jury should find that the predominant cause of the incident was the comparative negligence of the plaintiff.

The plaintiff countered that in this situation involving an alleged failure to adhere to applicable safety standards, principles of products liability should apply and that under applicable law, comparative negligence was not a defense. The court held that the jury would be instructed under products liability. The court also held that the jury could find that the plaintiff assumed the risk, which would not constitute a bar to recovery unless the percentage assessed against the plaintiff for assumption of the risk exceeded 50%. The defense argued that the plaintiff had assumed the risk of diving into unknown depths of water while intoxicated, and that assumption of risk was the sole proximate cause of his injury.

The defendants produced an M.D./toxicologist, who opined that plaintiff was impaired and intoxicated. The plaintiff’s BAC was.07 approximately one hour after the incident. The defendant’s expert extrapolated that the plaintiff probably had a level of.08 at the time of the incident, and that his inebriation was the cause of the occurrence. The other members of the group testified that the plaintiff did not appear to be inebriated at all.

The plaintiff also named the pool liner manufacturer as a defendant. This defendant maintained that it had merely manufactured a liner, provided warning signs with its liner and denied that it should be held liable.

The plaintiff suffered cervical fractures and incomplete quadriplegia in which he can move his arms, but has no fine motor use of his hands and fingers. The plaintiff is an Irish national who was visiting this country on a work visa and has since returned to Ireland. The youthful plaintiff had very little in terms of a work history and the plaintiff made no future income claims.

The plaintiff’s is covered under the nationalized health care plan in Ireland and the plaintiff’s specials did not include costs for physician and nursing care. The plaintiff made a claim, however, for costs such as those relating to a specialized home, home assistance and specialized equipment.

The jury exonerated the pool liner manufacturer, awarded $________ and found the designer and installer of the pool 50% liable and assessed 50% liability against the plaintiff for assumption of the risk.

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