On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-3284-98.
Before Judges Havey, A. A. Rodríguez and
The opinion of the court was delivered by: Rodriguez, A.A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 12, 2002
Plaintiff, Janusz Dziewiecki, was seriously injured in a swimming pool diving accident. He sued his hosts, Wieslaw and Elizabeth Bakula, the pool's installer and distributor, Grobels, Inc. (Grobels), and the pool's manufacturer, Fox Pools, Inc. (Fox). Plaintiff asserted a negligence cause of action against the Bakulas. He also asserted products liability and breach of warranty causes of action against Grobels and Fox. The Law Division granted summary judgment to Grobels and Fox pursuant to the ten-year bar set by the New Jersey Statute of Repose (SOR), N.J.S.A. 2A:14-1.1, and dismissed all extant claims.*fn1
The SOR provides that a cause of action"in contract, in tort, or otherwise" for damages resulting from the faulty construction of an improvement to real property, must be commenced within ten years of the construction of such improvement. N.J.S.A. 2A:14-1.1. The issue presented in this appeal is whether the SOR precludes the claims against Grobels and Fox. We reverse, concluding that the bar set by the SOR does not apply to the product liability claims against the manufacturer and distributor of a product that is used in or incorporated into an improvement to real estate.
The following undisputed facts were presented to the motion judge. On September 1, 1997, plaintiff, who was thirty-six years old, attended a Labor Day weekend gathering at the home of his friends the Bakulas, in Lawrenceville. Plaintiff had visited the Bakulas' home before, but this was the first time he ever entered the in-ground swimming pool in their backyard. He arrived at approximately 5:30 p.m. and sat on the outside patio talking for a couple of hours. Around 7:30 p.m., he went inside the house to change into his swimming trunks. Plaintiff returned through the patio doors and ran towards the easterly side of the pool. He dove into the pool from ground level, not from the diving board, towards what he believed to be deeper water. Plaintiff had observed other guests that day diving towards that same spot, albeit they were diving from the westerly side. He had to look for a safe place to dive because there were other swimmers in the pool and the water was murky.
Unfortunately, plaintiff hit the angled sides at the western end of the pool. As a result, he suffered severe injuries to his spinal cord. Specifically, a C-5 compression fracture, C-6 burst fracture, and C-5 - C-7 cord contusion. He is now a quadriplegic with minimal movement of his legs and hands.
The pre-trial discovery process yielded the following information. The pool had been installed in 1972 by the Bakulas' predecessor in title, Walter Rusecky. Rusecky had purchased the pool from Grobels, an authorized franchise dealer for Fox, the manufacturer of the pool. The pool was purchased in a kit and transported by Grobels' pick-up truck from York, Pennsylvania. The kit contained galvanized steel walls, a vinyl liner,"x-braces for behind the steel walls" and"coping packaging."*fn2 Grobels excavated an appropriate hole, installed the pool, and poured a concrete apron around it. A fence was also built around the pool by Grobels. The pool and installation cost Rusecky $4,000 to $5,000.
According to Robert Seitz, the President of Fox Pool Corporation (the successor corporation to Fox), the Bakulas' pool is similar to the specifications of Fox Pool model F2-113. The pool is approximately sixteen-feet wide and thirty two feet long. The shallow end of the pool is three-feet deep. The deep end has three sides that slope down at a forty-five degree angle creating the greatest depth (eight feet) at the center of that end. The deep end also has a diving board. Thus, a person diving from the diving board would break the surface of the water at a point directly above the deepest part of the pool. However, a person diving from any of the three sides is likely to break the surface of the water at a point above the sloping sides of the pool. Depending on the exact point of entry, the depth of the water can vary from very shallow to the deepest point.
Plaintiff retained Kenneth R. Laughery, of the Psychology Department at Rice University, as an expert on"the human factors and warnings issues" of this case. According to Laughery's report, the pool has three warning signs. The first sign is located on the fence on the west side of the pool near the gate. It contains the word"DANGER" and a series of pictorials and text. This sign addresses various pool safety rules and instructions for diving off the diving board. There are two additional signs on the coping or upper part of the side of the pool. According to Laughery,
These signs contained the signal word"DANGER," the text"NO DIVING, SHALLOW WATER, Diving may cause death or permanent injury," and a negation pictorial showing a human figure hitting his/her head on the bottom of the pool. One of these signs was located on the west side of the pool near the ladder. It is unclear where the second coping sign was located;... it was either on the west side also near the ladder or on the north side near the patio. There were no depth markers on the side surfaces of the pool. There was no rope or other physical indicator delineating the shallow area of the pool from the deep area.
Laughery opined that, when a swimming pool's water is murky and disturbed by other swimmers, it is virtually impossible to visually assess the depth of the pool. He rendered the following opinions:
3. Given that the pool was designed for diving as clearly indicated by the presence of a diving board, and given that diving is hazardous in the shallow end of the pool, it is imperative that the deep and shallow areas of the pool be identified. Depth markers and accessories such as ropes are standard procedures ...