On certification to the Superior Court, Appellate Division, reported at ___ N.J. Super. ___.
This appeal addresses the duty of a host to warn a social guest about the configuration and depth of the host's pool where the guest had been in the pool many times before.
Defendant Deborah Peterson is the sister-in-law of plaintiff Paul Tighe. Defendant Theodore Peterson, who had worked in construction for twenty-three years, purchased an in-ground pool kit approximately eight years before the accident. He followed the instructions and installed the in-ground pool himself. The pool is rectangular, 16 feet by 32 feet, with a depth of three feet in the shallow end sloping to a depth of seven and one-half feet in the deep end. Peterson stated that he did not install depth markers, a rope to separate the deep and shallow ends, or any other markers to indicate the depth of the pool. None came in the kit. Because Peterson could not identify the manufacturer or vendor of the pool kit, Tighe never sued them.
On August 16, 1996, the Petersons invited Tighe, then age 29, to swim in their pool. Prior to that date, Tighe had visited the Petersons many times since the pool was installed and had used the pool approximately twenty times. Tighe stated in his deposition that he knew which end of the pool was the deep end and which was the shallow end, and that he knew not to dive into the shallow end of a pool.
Tighe was injured when he dove from the left side of the pool in the direction of the deep end. He stated he believed he was diving towards the deep end of the pool; however, he misjudged where the slope began and struck his head on the bottom of the pool, causing an injury to his neck. Deborah Peterson was standing or floating in the deep end when Tighe dove in, and he intended to "horse around or maybe tackle my sister-in-law or grab her by the leg."
Tighe's expert, a professional engineer and safety professional, stated in his report that there were no visible signs indicating the depth of the pool and no signs warning of unsafe and dangerous conditions for diving. He concluded that the Petersons failed to maintain the pool free of hazardous, unsafe and dangerous conditions and violated accepted safe practices, standards and codes. Tighe asserts that the expert opinion created a jury issue on Petersons' liability.
The trial court granted summary judgment in favor of the Petersons and Tighe appealed. The Appellate Division, Judge King writing for the majority, affirmed. Tighe v. Peterson, __ N.J. Super. __, (App. Div. 2002). The Appellate Division cited to Restatement of the LawTorts, 2d, § 342, which provides that the duty that hosts owe to social guests with respect to the conditions of their property is limited. A host has a duty to warn only when dangerous conditions exist on the property of which the host has actual knowledge and of which the guest is unaware. Where a guest is aware of a dangerous condition or by a reasonable use of his facilities would observe it, the host is not liable.
The Appellate Division found the case-law relied on by Tighe unpersuasive. It distinguished Vallillo v. Muskin Corp., 218 N.J. Super. 472 (App. Div. 1987), where the property owner purchased and installed a shallow, above-ground pool. The pool contained a single sign warning against diving. The owner constructed a deck around a portion of the circular pool, completely covering the sign. He admitted that he had constructed the deck so that swimmers could jump or dive into the pool, and that he dove into the pool himself. In that case, the landowner's responsibility was enhanced beyond the duty articulated in § 342 because his conduct encouraged a dangerous use of the pool.
Judge King explained that the Petersons had no duty to make their pool safer for their social guest than for themselves. Tighe admitted that he was very familiar with the pool at the time of the accident. He testified that he had been swimming in the pool about twenty times before; that he was aware which end of the pool was the deep end and which was shallow; and that it was dangerous to dive into the shallow end of the pool. Therefore, the condition of the property allegedly causing the injury was familiar and well known to Tighe. This is not a case where the plaintiff was unaware of an obscure peril.
Judge Wecker dissented, stating that the alleged dangerous condition was the absence of any marker to show the location where the shallow portion of the pool ends and the incline toward the deep end begins. Judge Wecker reasoned that a jury could find the Petersons breached a duty to Tighe by failing to mark the point where the incline began.
The Supreme Court granted Tighe's petition for certification.
HELD: The Petersons did not have a duty to warn Tighe of the configuration of their pool's depth. Tighe testified that he had been in the pool approximately twenty times before and that he was well aware where the shallow and deep portions were situated and that he knew not to dive into the shallow part of the pool.
1. The Court affirms for the reasons expressed in the thorough and persuasive opinion of Judge King. To underscore its agreement with that decision, the Court adds only that it defies notions of reasonableness to regard Tighe as being unaware of the slope of the pool bottom or to conclude that he could not reasonably have detected it from his use of the pool that day and on the many occasions before. Nor is there any evidence that the Petersons encouraged a dangerous use of this pool. Tighe acknowledged that at the moment of the injury it was he who was ...