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Ryan v. Kdi Sylvan Pools Inc.

Decided: October 3, 1990.

JAMES JOSEPH RYAN, PLAINTIFF-RESPONDENT,
v.
KDI SYLVAN POOLS, INC., DEFENDANT-APPELLANT, AND FRANK WISEKAL AND NORMA WISEKAL, DEFENDANTS



On certification to the Superior Court, Appellate Division.

For Reversal and Remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. For Affirmance -- None.

Per Curiam

Plaintiff, James Ryan, seeks damages for personal injuries resulting from a dive into a swimming pool on residential premises. The pool was manufactured by defendant KDI Sylvan Pools, Inc. (KDI), and was located on property owned and occupied by defendants Wisekal. Plaintiff's products-liability case against KDI was based on design defect and lack of adequate warning. The claim against the property owners sounded in negligence.

The property owners settled with plaintiff shortly after the trial commenced. The case proceeded against KDI, and the jury returned a verdict in favor of plaintiff. The verdict

apportioned the fault among plaintiff, the Wisekals, and KDI. Thereafter, the trial court molded the verdict to reflect the jury's apportionment. On appeal KDI attacked that apportionment as well as the trial court's ruling on the admissibility of KDI's expert testimony and the amount of the verdict. In an unreported opinion, the Appellate Division affirmed. We granted certification, 111 N.J. 575, 546 A.2d 502 (1988), and now reverse and remand for a new trial on KDI's liability.

I

On June 10, 1984, plaintiff, a social guest at the Wisekals' home, was swimming in their built-in pool, which was equipped with a diving board. On his second dive into the pool, Ryan hit his head on the bottom, sustaining serious injuries for which he sought damages from the pool manufacturer and the homeowners.

Immediately after the opening statements at trial, Ryan settled with the homeowners for $100,000. The trial court instructed the jury that although the Wisekals were no longer in the case, the jury would nevertheless have to resolve the issue of the Wisekals' fault as well as the products-liability claim against KDI. The court also included the "ultimate outcome" instruction suggested by Roman v. Mitchell, 82 N.J. 336, 413 A.2d 322 (1980), which informs the jurors of the effect of their findings on the ultimate result.

During trial the court dismissed KDI's defense that plaintiff had voluntarily and unreasonably encountered a known danger when he dove into the pool. See Cartel Capital Corp. v. Fireco, 81 N.J. 548, 563, 410 A.2d 674 (1980); Suter v. San Angelo Foundry and Mach. Co., 81 N.J. 150, 164, 406 A.2d 140 (1979); Restatement (Second) of Torts ยง 402A Comment n (1977). Consistent with that ruling, not challenged on this appeal, the court charged the jury that plaintiff's negligence, if any, should be considered only in relation to the negligence of the Wisekals, the settling defendants. It further instructed the

jury that plaintiff's negligence was irrelevant to the percentage of fault attributable to KDI, the products-liability defendant.

By answer to special interrogatories the jury indicated that it found a products-liability cause of action against KDI and a negligence cause of action against the Wisekals. It further found that plaintiff, "in relation to the Wisekals," had been partially at fault for the accident. Again in answers to special interrogatories, the jury indicated that it found KDI fifty percent at fault, the Wisekals thirty-five percent, and plaintiff fifteen percent.

In response to another special interrogatory the jury found the total damages to be $550,000. On the basis of Cartel Capital Corp. v. Fireco, supra, 81 N.J. 548, 410 A.2d 674, the court interpreted the jury's allocation of fault to require KDI to pay fifty eighty-fifths of the judgment, or $325,529.

Thereafter the court revised its molding of the verdict. Relying on the proposition that "[a] non-settling tortfeasor against whom a verdict is entered is entitled to an offset equal to the amount of the settling tortfeasor's proportionate share of fault," the court decided that KDI should pay sixty-five percent of the judgment, citing Cartel, supra, 81 N.J. 548, 410 A.2d 674; Rogers v. Spady, 147 N.J. Super. 274, 371 A.2d 285 (App.Div.1977); and Dimogerondakis v. Dimogerondakis, 197 N.J. Super. 518, 485 A.2d 338 (Law Div.1984). Thus, KDI was held responsible for $550,000 minus thirty-five percent ($192,500), or $357,500.

The Appellate Division affirmed the trial court judgment in all respects.

II

KDI argues that the trial court erred in excluding proffered testimony of its expert and that, contrary to the Appellate Division's holding, the error was not harmless. It also contends that the trial court molded the jury verdict improperly. Finally, it attacks the amount of award as excessive.

-- A --

Plaintiff claims that the pool was defectively designed because it was equipped with a diving board that, given the configuration and depth of the pool, was unsafe to use. He contends that the pool should have had depth markers or at least warnings that diving, or certain types of diving, might be unsafe. Eugene Drury, plaintiff's expert, testified that pool-depth standards of the swimming-pool industry's trade association (NSPI), adopted in 1974, were totally inadequate to insure safe diving.

KDI claims that the pool was not defectively designed and that the warnings included in the owner's handbook were sufficient. Defendant offered the testimony of Joseph Schmerler, an acknowledged expert in the promulgation and revision of NSPI standards. His testimony established that KDI had constructed the Wisekals' pool to meet those standards.

In Schmerler's opinion there is no need for warnings in residential swimming pools. When asked the basis of that opinion, Schmerler testified that he had relied on information available in

Dr. Gabrielson's reports from the Phoenix Spinal Cord Injury Center that has accumulated data over a period of time and the New England Spinal Cord Injury Center, various other investigators in California and other locations, even outside the country, and assimilated that information and came to a conclusion as to the number of, of reasonable range of number of spinal cord injuries that take place on an annual basis in swimming pools.

Concerned about the direction of the expert's testimony, the trial court conducted an Evidence Rule 8 hearing out of the jury's presence. Schmerler then testified that "[t]here are probably within sixty and a hundred injuries in residential swimming pools on an annual basis," and that there have been about four to six cervical spine injuries of the type sustained by Ryan over a seventeen-year period in pools with diving boards meeting NSPI 1974 standards.

On cross-examination Schmerler said that he had obtained his information by interviewing some people who had been injured,

but had not reviewed public court dockets. He further testified, "I made an analysis of data that [were] available and I went through and picked out the cervical spine injuries from diving boards, yes, as well as interviews with diving board manufacturers and fabricators of vinyl liner swimming pools in the mass market." When questioned about the reliability of the information, Schmerler acknowledged that he did not know how to verify it, and agreed that manufacturers might have a vested interest in underreporting the number of injuries.

Defendant's expert stated that the data on which he had relied were the same as those on which the pool-standard promulgators rely. The witness added that it was reasonable to rely on those types of data and that the Consumer Product Safety Commission relies on them. Schmerler serves on the Data Collection Subcommittee and the Technical Subcommittee of the Consumer Product Safety Commission. The Data Collection Committee collects information on swimming-pool accidents and decides whether it should be circulated to other subcommittees.

The trial court ruled that it would "not permit [Schmerler] to advise the jury as to the number of incidents wherein a diving injury occurred based on his status." The court was unsure about what exactly had been studied:

[T]he bottom line is that you get an expert that comes in and says, "I looked at a lot of materials and I spoke to a lot of people * * *." It's all relatively vague and I think puts the plaintiff in a very unfair position, particularly in light of the substantive rule of law, that lack of presence of prior injuries is not supposed to come into evidence at all, on the question of whether the product was safe or not.

The trial court did, however, permit Schmerler to express his opinion that no warnings were needed.

Relying on Bowen v. Bowen, 96 N.J. 36, 49-50, 473 A.2d 73 (1984) ("the sources of an expert's testimony must be relevant as well as reliable"), and State v. Cavallo, 88 N.J. 508, 516, 443 A.2d 1020 (1982) ("under [former] Rule 56(2)(b), expert testimony is admissible only if the expert has sufficient expertise to offer the intended testimony and the testimony itself is sufficiently

reliable"), the Appellate Division held that the trial court had properly excluded the evidence under Evidence Rule 56(2) because the data were too unreliable and too vague. It also decided ...


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