On appeal from the Superior Court, Law Division, Middlesex County.
Furman, Shebell and Stern. The opinion of the court was delivered by Shebell, J.A.D.
Plaintiff, Stephen Vallillo, appeals from a summary judgment entered in the Law Division in favor of defendants, Edward Vallillo and Donna Vallillo.
Summary judgments in this action have previously been entered in favor of defendants, Muskin Corporation ("Muskin"), S.K. Plastics Corporation ("S.K."), and Davis Swim Pool Center ("Davis") by direction of another panel of this court. Vallillo v. Muskin Corp., 212 N.J. Super. 155 (App.Div.1986) (motion for leave to file an interlocutory appeal to Supreme Court denied October 30, 1986).
Plaintiff was invited to a "cousins" swim party at the home of defendants, Edward Vallillo and Donna Vallillo. Plaintiff suffered multiple fractures of his cervical spine with dislocations when he struck his head on the bottom of the above-ground
pool upon the premises when attempting a dive. Plaintiff asserts that he attempted a shallow dive because he knew that the pool was no deeper than four feet, but that his feet went up over his head propelling him into the bottom of the pool with such force as to cause a six inch deep imprint of his head in the plastic liner on the soft bottom of the pool. The 23 year old plaintiff was six feet, four inches tall and weighed 190 pounds at the time of his injury.
The pool was manufactured by Muskin and sold by Davis to a third party from whom defendants purchased it used. The pool required a replacement liner as Edward Vallillo was unable to properly install the original liner. He purchased a new liner manufactured by S.K.
The wall of the pool contained the words "DANGER -- DO NOT DIVE" in only one location. Edward personally constructed a deck around approximately eight feet of the circular above-ground pool thereby covering the one sign which related to the danger of diving. Defendant, Edward Vallillo, admitted in his deposition that his intended use of the deck was to jump in the pool, which to him included diving.
The warranty from S.K. which accompanied the plastic replacement liner stated:
IMPORTANT . . . FOR YOUR HEALTH & SAFETY . . . PLEASE NOTE . . . this swimming pool does not have sufficient depth for diving. do not dive. do not allow others to dive into this swimming pool. diving is dangerous. [(emphasis added)].
Edward testified that he never read the warranty or the warnings from S.K. and that he did not instruct anyone not to dive or how they were to use the pool. He acknowledged that he knew you were not supposed to dive into a pool such as this. Plaintiff testified that Edward himself was the first to dive into the pool and that everyone was diving, jumping and horsing around at a party where the Vallillos served beer and invited the guests to bring their own bottle.
In considering whether the Law Division was correct in granting summary judgment we ask first, whether there was a genuine issue of material ...