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Vallillo v. Muskin Corp.

Decided: July 16, 1986.


On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Dreier, Bilder and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.


[212 NJSuper Page 156] Defendants Muskin Corporation (Muskin), S.K. Plastic, Inc. (S.K.), and Davis Swim Pool Center (Davis) have appealed, by leave granted, from the denial of their summary judgment motions in the Law Division.

Muskin was the manufacturer of an above-the-ground pool frame originally purchased through Davis.*fn1 Codefendants Edward and Donna Vallillo, the owners of the pool, installed a replacement liner, manufactured by defendant S.K., when they reconstructed the frame in their yard. When they constructed a new wooden deck, the Vallillos covered a warning sign placed on the frame by Muskin containing the words "DANGER DO NOT DIVE." Muskin's original liner, which also contained multiple printings of the same warning, was discarded when the Vallillos installed the S.K. liner bearing no such warnings.

Plaintiff was invited to a swim party at his cousin's home and in the course of a dive into the pool was severely injured. He escaped permanent paralysis only through the skill of his treating physicians. At this stage in the litigation we do not and should not resolve the various factual questions in this case concerning the conduct of plaintiff relating to his ingestion of alcohol, attempt at a "flip" dive, or the like, all the subject of variant deposition testimony. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954). We accept as true, however, undisputed facts, primarily gleaned from plaintiff's deposition. Ferdinand v. Agricultural Ins. Co. of Watertown, 22 N.J. 482, 494-498 (1956); Judson, 17 N.J. at 75.

The depositions reveal that plaintiff was an experienced swimmer for approximately 23 years before the accident, having learned to swim when he was six. His family had a similar pool as he was growing up and he also had engaged in swimming and diving at the local YMCA, health spas, and community pools. He considered himself a person familiar with above-the-ground swimming pools as well as with diving into such pools. He had raced with friends and knew how to do a racing or shallow dive. Prior to the accident he had jumped into the pool and observed others there. He first stood in the pool and knew the water

was approximately four and one-half feet deep; standing 6'4", plaintiff noted that the water came approximately four inches above his navel. It was clear from plaintiff's repeated deposition testimony that with full knowledge of the depth of the water, familiarity with the pool, and cognizant of his own swimming and diving abilities, he attempted to perform a shallow dive to avoid the risk of hitting the bottom.

Ordinarily the resolution of an inadequate-warning products liability claim involves first the determination of the defect in a product sold or marketed by defendants, i.e. the evaluation of the adequacy of the warning, then an assessment of the plaintiff's conduct, and finally a determination of how each may have proximately caused the accident. These factors, and specifically the determination of how each factor may have contributed to the happening of an accident, are matters usually left for proof at trial. Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 209 (1984); Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 402 (1982). But in some instances the summary judgment procedure, designed to achieve an inexpensive and expeditious termination of proceedings where there is an insufficient legal basis for recovery, should be utilized. We recognize the financial burden both to plaintiffs and defendants in litigating products liability matters. Both trial and appellate judges should welcome early efforts to review proceedings to determine their legal viability to the end that spurious claims and defenses need not be the subject of extended litigation and its attendant expenditure of resources. Judson v. Peoples Bank & Trust Co. of Westfield, supra, 17 N.J. at 74. Cf. Maressa v. New Jersey Monthly, 89 N.J. 176, 196-97 (1982), cert. den. 459 U.S. 907, 103 S. Ct. 211, 74 L. Ed. 2d 169 (1982).

Plaintiff contends that defendants' warnings should have been embossed on the pool lip or otherwise placed around the pool, and that S.K.'s replacement liner should have had at least the type of warnings displayed on Muskin's original liner. Plaintiff further states that the warning should have been more

explicit, stating not merely: "Danger, do not dive," but: "Danger, shallow water dives cripple," accompanied by a pictorial representation of a person diving with a superimposed red "X".*fn2

Warnings serve multiple functions. In this case plaintiff asserts that the allegedly necessary but missing warning would have called attention to an unanticipated danger or one that may temporarily have been forgotten even by a knowledgeable user of the product. Cf. Zentz v. Toop, 92 N.J. Super. 105, 114-15 (App.Div.1966), aff'd o.b. 50 N.J. 250 (1967). There is no question that warnings necessary to make a product reasonably safe, suitable and fit for its intended use must be placed on the product. Campos v. Firestone Tire & Rubber Co., ...

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