ARTICLE ID 168329
$________ GROSS - PRODUCT LIABILITY - DEFECTIVE DESIGN AND INSTALLATION OF IN-GROUND POOL - NEGLIGENT ABSENCE OF "NO DIVING" SIGNS - INCOMPLETE QUADRIPLEGIA - LOSS OF BOWEL AND BLADDER FUNCTION.
Cook
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 homeowners 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 plaintiffs BAC
was.07 approximately one hour after the incident. The defendants
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 plaintiffs is covered under the nationalized health care
plan in Ireland and the plaintiffs 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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