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Meyers v. Donnatacci

Decided: June 12, 1987.

RICHARD MEYERS, PLAINTIFF,
v.
MICHAEL DONNATACCI, DONNA DONNATACCI, FOX POOL CORPORATION, RIN ROBYN SWIMMING POOLS, INC. AND NATIONAL SWIMMING POOL INSTITUTE, DEFENDANTS



Boyle, J.s.c.

Boyle

This is a motion for summary judgment brought by Defendant National Spa and Pool Institute ("NSPI") improperly pleaded as National Swimming Pool Institute. The underlying cause of action involves injuries sustained in a swimming pool accident. The novel question presented is whether a trade association owes a duty of care or assumes a duty not otherwise owed to any user of a product manufactured and/or designed by members of that association. The court is convinced that there is no duty owed or assumed and therefore grants summary judgment on behalf of NSPI.

On August 18, 1984, Plaintiff Richard Meyers ("Plaintiff") sustained severe personal injuries when he dove into the shallow end of an in-ground swimming pool at the home of Defendants Michael and Donna Donnatacci ("Donnatacci") where he was invited for a barbecue and swim party. Plaintiff has been rendered a quadriplegic as a result of the dive.

Plaintiff filed a Complaint against Donnatacci, the homeowners; Fox Pools, Inc., Fox Pool Corporation, Fox Industries and Fox Pools of York, Inc. ("Fox Pools"),*fn1 the manufacturer of the subject pool and vinyl liner; Rin Robyn Swimming Pools,

Inc. ("Rin Robyn"), the distributor and installer of the subject pool; and National Spa and Pool Institute ("NSPI"), the trade association wherein Rin Robyn and Fox Pools were members, alleging negligence against all defendants.

The remaining counts of the Complaint allege strict liability, breach of implied warranties and violation of the Consumer Product Safety Act against Fox Pools and Rin Robyn. Plaintiff seeks compensatory damages from all defendants.*fn2 Only Donnatacci and Rin Robyn asserted cross-claims against NSPI.

NSPI seeks an order granting summary judgment as to all claims and crossclaims asserted against it arguing that it owed no legally recognized duty to Plaintiff. Plaintiff has filed opposition to NSPI's motion.

It is uncontroverted that NSPI is a non-profit corporation organized in 1956. It is also uncontroverted that NSPI is not a manufacturer, fabricator, designer, builder, supplier, installer or wholesale or retail seller of swimming pools or pool equipment. NSPI is a voluntary trade association comprised of several hundred representatives from swimming pool manufacturers, maintenance firms, distributors, officials from the public health and safety sector, the American Red Cross, YM and YWCA groups, the International Association of Plumbing and Mechanical Officials and a number of coaches, physicians and teachers who are involved in swimming and aquatics.

On January 1, 1974, NSPI promulgated a revised set of standards entitled "Suggested Minimum Standards for Residential Swimming Pools" ("Standards"). To develop the standards, drafts were circulated to the NSPI membership and industry and public officials to solicit their comments. Scheduled meetings were arranged for those solicited to give them an opportunity to participate in developing the Standards. The cover page of the Standards states a compliance date of January

1, 1974. The Appendix to the Standards states, among other things, that the "safety of swimming pools extends beyond design and construction standards and includes many other elements among which are the provision of ancillary facilities and equipment, the restriction or prohibition of selected activities of swimmers and bathers, and various operational and maintenance procedures."

Prior to the issuance of the Standards, NSPI was aware that safety was a crucial element in swimming pool use. In late 1973, NSPI retained Arthur D. Little, Inc. ("ADL") as a consultant to perform research on residential diving boards, jumpboards and diving hoppers. The report was issued in June 1974 ("ADL 1"). A committee comprised of non-industry individuals and NSPI members was assembled by NSPI to oversee the research. When NSPI received the report, it was forwarded to the committee who determined that further research was needed on the subject and that same should be conducted under the auspices of the National Swimming Pool Foundation ("NSPF"), a subdivision of NSPI.

NSPF again selected ADL on February 14, 1978, to do supplemental research. The committee who reviewed this second project included, among others, members of the industry, individuals from the public health sector, the National Safety Council and the United States Navy.

This report ("ADL 2") was issued on May 15, 1980. NSPF decided to make this report available to the public for a fee. As of November, 1980, ADL 1 and ADL 2 were available to the members and the public. Concurrently, NSPI designed a program aimed at consumer awareness of safe pool use. Thereafter, pamphlets, brochures and other materials were published and made available to the general public free of charge.

On August 18, 1984, Plaintiff was injured in a swimming pool manufactured and installed in 1979. The swimming pool contained no warnings against diving into the shallow water and

had a mosaic patterned liner. The 1974 Standards were in effect at the time of the accident.

NSPI has a Constitution and By-Laws as well as a Code of Ethics. The membership dues vary from $50 for a non-voting aquatic professional to $10,585 for a manufacturer with an annual dollar volume of sales over $30,000,000.

The allegations against NSPI are grounded in negligence. Plaintiff does not assert that the information contained in the Standards is inaccurate, false or improper. Rather, the allegations are that NSPI was aware of the correlation between shallow water diving and spinal cord injuries as early as 1974 and despite this knowledge, failed to take action to prevent such harm. The allegation, therefore, is non-feasance rather than malfeasance. Alternatively, Plaintiff argues that NSPI assumed the duties of its members to acquire and disseminate pool safety information including the information it had acquired by virtue of its studies; that its members relied upon NSPI's standards thus foregoing their own research resulting in severe personal injuries sustained by Plaintiff.

NSPI moves for summary judgment on all claims and cross-claims on the basis of the lack of any duty owing to Plaintiff (R. 4:46-1) as well as the First Amendment right to free speech. The question presented on the motion is whether a trade association which performs research, conducts surveys and disseminates the results owes a duty to a consumer who is injured using a product manufactured and/or installed by one of its members. Alternatively, can the court impose a duty of care upon the trade association on the basis of Restatement, Torts 2d, § 324A (1965)?

A legal duty is "an obligation arising from a contract of the parties or the operation of the law." Black's Law Dictionary, 804 (5th ed. 1979).

Legal obligations, therefore, arise where the parties are bound by contract, West Caldwell v. Borough of Caldwell, 26 N.J. 9, 24 (1958) or where the obligations are "expressly or

impliedly imposed by statute, municipal ordinance, or by administrative rules or regulations, or by judicial decisions." 57 Am.Jur. 2d, Negligence, § 36 at 382.

There are no allegations, herein, that the parties are bound by contract or that Plaintiff is a third party beneficiary of a contractual relationship between NSPI and its members, Rin Robyn and Fox Pools. There are no allegations that NSPI violated any statutes, ordinances, rules or regulations. Plaintiff's theory of liability against NSPI is grounded in negligence. Negligence is the lack of due diligence or care. Actionable negligence, or negligence which is legally recognized and from which liability will arise "consists of various essential elements including the disregard or violation of a legal duty." Reilly v. 180 Club, Inc., 14 N.J. Super. 420, 423-424 (App.Div.1951). This disregard or violation must then be the proximate result of injuries to the person to whom the duty is owed. Thus, "actionable negligence is sometimes said to be the failure to exercise the care which an ordinary person would employ under the existing and surrounding circumstances in the discharge of that duty." Id. at 423-424.

The prerequisite for imposition of liability upon a party is the existence of a legally recognized duty. This is determined by whether or not the risk or event to be guarded against is "reasonably within the range of apprehension of injury ...


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