December 23, 2002
PAUL J. TIGHE AND RENEE TIGHE, H/W, PLAINTIFFS-APPELLANTS,
DEBORAH A. PETERSON AND THEODORE PETERSON, H/W, DEFENDANTS-RESPONDENTS, AND ABC CORPORATION 1-10, ABC PARTNERSHIP 1-10, JOHN DOE 1-10 AND JANE DOE 1-10, J/S/A, DEFENDANTS.
On certification to the Superior Court, Appellate Division, reported at ___ N.J. Super. ___.
SYLLABUS BY THE COURT
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 "horsing around." Unfortunately, the accident happened. On these facts, there was no legal duty to warn owed by the Petersons to Tighe. (pp. 1-3)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE LONG filed a separate, dissenting opinion, in which JUSTICES ZAZZALI and ALBIN join, expressing the view that because the risk of serious injury from diving into shallow water is so great and the concomitant avoidance practice (painting depth marks or "no diving" signs) requires so little effort, notions of basic fairness impose a duty on pool owners to take such protective measures.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO and LaVECCHIA join in the Court's opinion. JUSTICE LONG has filed a separate dissenting opinion in which JUSTICES ZAZZALI and ALBIN join.
The opinion of the court was delivered by: Per Curiam
Argued October 21, 2002
We affirm for the reasons expressed in the thorough and persuasive opinion of the Appellate Division majority authored by Judge King. We add only the following to underscore our agreement with that decision.
A host's duty to a social guest includes an obligation to warn of a known dangerous condition on the premises except when the guest is aware of the condition or by reasonable use of the facilities would observe it. Tighe v. Peterson, __ N.J. Super. __, __ (App. Div. 2002) (citing New Jersey case law applying test set forth in Restatement (Second) of Torts). Courts employ a fact-sensitive analysis when determining whether a host has fulfilled his or her duty to warn to a particular guest. In this case, we are satisfied that defendants did not have to warn their brother-in-law plaintiff of the configuration of their pool's depth - that is, where the shallow part of the pool was situated and where the shallow end began its slope downward toward the deepest portion of this in-ground pool. Plaintiff had been in the pool approximately twenty times before and testified that he was well aware of where the shallow and deep portions were situated. He also stated that he knew not to dive into the shallow part of the pool.
These hosts did not breach any duty to warn plaintiff about the depth locations when they allowed him to use the pool on what he said may have been his twenty-first occasion to swim there. Id. at __. Plaintiff made an unfortunate error on that occasion, injuring himself on the sloped bottom close to the shallow end of the pool. It defies notions of reasonableness to regard plaintiff as being unaware of slope of the pool bottom, or to conclude he could not reasonably have detected it from his use of the pool that day and on the many occasions before. Nor was there any evidence that defendants encouraged a dangerous use of this pool. Rather, we are confronted here with a plaintiff who acknowledged that at the moment of the injury it was he who was "horsing around." Unfortunately, the accident happened. However, we agree with the majority below that, on these facts, there was no legal duty to warn owed by defendants to plaintiff.
The grant of summary judgment by the courts below is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, and JUSTICE LaVECCHIA join in this opinion. JUSTICE LONG filed a separate dissenting opinion in which JUSTICES ZAZZALI and ALBIN join.
LONG J., dissenting.
Plaintiff Paul Tighe was severely injured when he dove into defendants' pool after apparently misjudging the point at which the pool water was deep enough for diving. Although the pool had no depth or other safety markings, the trial court granted summary judgment in favor of defendants, apparently because plaintiff had used the pool on a number of prior occasions and was generally familiar with it. Over a dissenting opinion by Judge Wecker, the Appellate Division affirmed, essentially on the ground that plaintiff's familiarity with the pool obviated any further duty that defendants otherwise might have had toward him.
That ruling dices the notion of duty too finely. Under our law, the existence of a duty of care in a particular case is a fact-sensitive inquiry that turns on whether its imposition "satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy." Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962).
That inquiry involves identifying, weighing, and balancing several factors--the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct. [Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993) (citation omitted).]
Where the potential harm resulting from a risk is great and the means of avoiding it small, "it is fair to impose a duty." J.S. v. R.T.H., 155 N.J. 330, 339 (1998); see also Kelly v. Gwinnell, 96 N.J. 538, 549-50 (1984) (holding defendant liable for injuries stemming from drunk driving accident where defendant had provided driver with alcohol because potential harm was "serious" and defendant's actions were "relatively easily corrected"). That is the case here.
As Judge Wecker observed, because the risk of serious harm from diving into shallow water is so great and the concomitant avoidance practice (painting depth marks or "no diving" signs) requires so little effort, notions of basic fairness impose a duty on pool owners to take such protective measures. To be sure, plaintiff's own conduct may ultimately bar or severely limit his recovery. But that is an issue for the jury and not for the trial court, the Appellate Division, or for us.
I would therefore reverse and remand this case for trial substantially for the reasons expressed in the thorough and thoughtful dissenting opinion of Judge Wecker.
Justices Zazzali and Albin join in the dissent.
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