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Lewis v. Hopewell Valley Racquet Club

Decided: December 10, 1993.

EVAN LEWIS, PLAINTIFF,
v.
HOPEWELL VALLEY RACQUET CLUB, ET AL., DEFENDANT. EVAN LEWIS, PLAINTIFF, V. ARROW MASTER CORPORATION, DEFENDANT-RESPONDENT. TENCOR, INC. (INCORRECTLY NAMED AS HOPEWELL VALLEY RACQUET CLUB), THIRD PARTY PLAINTIFF-APPELLANT, V. DURAFLEX, INC. AND PRINCETON POOL & PATIO, THIRD PARTY DEFENDANTS



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

King, A.m. Stein and A.a. Rodriguez. The opinion of the court was delivered by King, P.J.A.D.

King

[269 NJSuper Page 72] This case presents the question whether a swimming pool, installed with diving stands and boards, is an "improvement to real property" within the meaning of our ten-year statute of repose, N.J.S.A. 2A:14-1.1.*fn1 The statute protects "person[s] performing

or furnishing the design, planning, supervision of construction or construction of such improvement to real property, . . ." Id. We conclude that the designer and installer of this inground pool and accessories, Arrow Master Corporation, is entitled to the benefit of the statute of repose and affirm the summary judgment in its favor.

I

Plaintiff Evan Lewis was injured in a diving accident on June 24, 1988 at the Hopewell Valley Swim Club. Plaintiff sued various defendants on June 14, 1989, including the appellant, Tencor, Inc., the owner of the swim club. Plaintiff amended his complaint on June 22, 1990 to sue respondent, Arrow Master, which built and installed the pool and diving stands. Arrow Master also installed the original diving boards, but not the replacement board involved in this accident.

Tencor settled with plaintiff for $115,000. The other defendants also apparently settled with plaintiff or obtained dismissals. Tencor alone pursued a cross-claim for contribution against the nonsettling defendant Arrow Master, under the Joint-Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5, based on a consent judgment against Tencor in favor of plaintiff. Arrow Master moved successfully for summary judgment on the cross-claim raising the ten-year bar of N.J.S.A. 2A:14-1.1.

The 35' by 83' in-ground pool was designed and built in 1978, more than ten years before plaintiff's initial complaint was filed in June 1989. Arrow Master constructed and installed the pool with the two diving stands. Arrow Master hired an architectural firm, Fountainhead Associates, to design the pool. Arrow Master claims that the pool was constructed in accordance with the

requirements of Hopewell Township and the standards set by the National Swimming Institute. Pursuant to the construction contract, Arrow Master also supplied the original diving board for the one-meter diving stand that plaintiff was using at the time of the accident. This original diving board was replaced before the accident by the more flexible diving board actually in use when plaintiff was hurt. Arrow Master had nothing to do with the replacement board. Arrow Master supplied the diving stands which were bolted down to the pool deck during construction, as part of the contract for construction of the pool. The two diving stands and the original boards were described in the pool construction contract under "accessory equipment." In 1978, upon completion of construction of the pool, the pool house, a "kiddy" pool, the cabana, and a kitchen, the Hopewell Township assessor increased Tencor's tax assessment for improvement to real estate by $56,900 for taxable year 1979.

The negligence theories against the defendant Arrow Master relevant to design and construction are contained in plaintiff's expert's report, part of the record on this appeal. In the expert's report, plaintiff claimed: (1) the diving well area was too shallow by 2-1/2 feet in violation of industry standards, (2) the transition slopes from the shallow to the deep end were "too close, inadequate for adult use of diving well. The transition goes from 5 to 9 feet and does not extend over a sufficient area," and (3) the well "should extend from the plummel [sic] of the board 16.4 feet out and it did not in this case." The expert concluded "with a reasonable degree of scientific probability that the defects identified above in the design and construction . . . were a substantial contributing cause" of plaintiff's injury. Clearly, the claim asserted against Arrow Master was for negligent design and construction of the pool and the accessory one-meter and one and one-half meter diving stands.

We recently reviewed the background of N.J.S.A. 2A:14-1.1, enacted in 1967, L. 1967, c. 59, ยง 1, and entitled "10 years; damages for injury from ...


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